Joseph Abdul-Nour El-Khouri v The Government of the United States of America

For extradition, transposition requires only the changes necessary to assess corresponding criminality in the requested jurisdiction. Conduct occurring in the United Kingdom must not artificially be treated as foreign merely because its effects were felt abroad. Acquiring a contract for differences is not dealing in securities on a regulated market, but reliance on a United Kingdom professional intermediary may independently satisfy the insider-dealing provision. On a forum-bar appeal, the High Court determines whether the district judge was wrong, rather than rehearing the evidence. Fresh evidence must be capable of changing the decision so that discharge would then have been required.

The appellant challenged a district judge’s decision sending his case to the Secretary of State for a decision on extradition to the United States. He was wanted to face charges arising from alleged insider dealing using material non-public information and contracts for differences linked to United States shares.

He argued that the conduct would not constitute a corresponding offence under the Criminal Justice Act 1993, that extradition was barred by forum under the Extradition Act 2003, and that further evidence concerning his daughter’s mental health should be admitted. The central issues were transposition, the forum-bar evaluation, fresh evidence and article 8.

1. Appeal dismissed. The applications to adduce further evidence and to amend the appeal to add an article 8 ground were refused.
2. The district judge erred in treating the appellant’s acquisition of contracts for differences as dealing in securities on the same regulated market as the underlying shares. A contract for differences is a security within Schedule 2 paragraph 7 of the Criminal Justice Act 1993, but does not provide for delivery of securities. The reasoning in Patel v Mirza that spread bets analysed as contracts for differences are not dealing on a regulated market was accepted.
3. The error did not require discharge. The appellant used a professional intermediary in the United Kingdom, so the alleged conduct could satisfy section 52(3) and fall within the territorial scope of section 62(1)(c).
4. Al-Fawwaz and Norris establish that transposition is mutatis mutandis. The court should substitute the requested jurisdiction only as necessary and should focus on the essence of the alleged acts. It should not treat United Kingdom conduct as foreign where that conduct would itself be criminal here.
5. The district judge properly considered the matters specified in section 83A(3) of the Extradition Act 2003. The absence of a United Kingdom prosecution did not dictate the result. Her overall conclusion that extradition was in the interests of justice was not wrong.
6. The appellant’s family connections, his daughter’s mental-health difficulties, delay and the effect of separation did not outweigh the serious public interest in extradition, the evidential difficulties of prosecution in the United Kingdom and the other statutory factors.

• High Court (Administrative Court): appeal under section 103 of the Extradition Act 2003 dismissed. The district judge’s decision to send the case to the Secretary of State was upheld, although part of her reasoning was erroneous.