Asante Kwaku Berko v United States of America

For dual criminality under Part 2 of the Extradition Act 2003, the court applies a conduct test, but each count must individually disclose conduct amounting to one or more offences in England and Wales. The court translates factual circumstances into an English context, but does not import a foreign legal obligation which has no English equivalent. A foreign duty to declare bank accounts therefore cannot itself supply the legal duty required for fraud by failure to disclose information.

The forum bar requires a fact-specific assessment of the statutory interests-of-justice factors after the substantial-activity threshold is met. Delay, the location and nature of harm, prosecutorial readiness, evidence, jurisdictional connections and community ties receive weight according to the circumstances of the case.

The appellant appealed against a Westminster Magistrates’ Court decision sending his extradition case to the Secretary of State under section 87 of the Extradition Act 2003. The Secretary of State ordered extradition under section 93.

Extradition was sought by the United States for six offences arising from an alleged international bribery and money-laundering scheme. Counts 1 to 3 concerned conspiracy and substantive offences. Counts 4 to 6 concerned wilful failure to report foreign bank accounts.

The appeal raised two issues: whether counts 4 to 6 satisfied dual criminality under section 137, and whether extradition was barred by forum under section 83A. Permission was granted on both grounds on a rolled-up basis.

1. Ground 1 allowed. Under section 137(3)(b) of the Extradition Act 2003, the conduct test requires the court to identify the essence of the conduct alleged in each count and ask whether that conduct would amount to one or more offences in England and Wales. A count may correspond to more than one domestic offence, and several counts may correspond to one domestic offence, but each count must individually disclose criminal conduct in this jurisdiction.
2. The factual circumstances must be translated into an English context. The court could therefore treat a failure to declare an account to United States authorities as a failure to declare it to English authorities. However, the foreign legal obligation itself could not be translated. The relevant obligation had to exist in English law. Otherwise extradition would expose the requested person to conviction for conduct which was not criminal here.
3. The essence of counts 4 to 6 was failure to declare foreign bank-account balances. The bribery and money-laundering allegations supplied context, but were not part of the essence of the non-disclosure conduct. Paragraph 70 of the indictment did not convert that context into an element of the disclosure offences. The proposed analogy with section 3 of the Fraud Act 2006 therefore failed because English law imposed no corresponding legal duty to disclose the accounts.
4. Ground 2 dismissed. The substantial-activity threshold in section 83A(2)(a) was satisfied. The assessment under section 83A(2)(b) and section 83A(3) remained fact-specific, and the court had to consider only the specified interests-of-justice matters. Some harm occurred in the United States, but the principal harm from the alleged conspiracy occurred in Ghana and some harm affected the United Kingdom subsidiary. The location of harm was not necessarily a very weighty factor favouring extradition.
5. Delay was a material factor under section 83A(3)(e). Its weight depended on the length of the anticipated delay and case-specific circumstances. Here the United States proceedings were trial-ready, whereas a United Kingdom prosecution would require further review and investigation. The appellant’s United Kingdom connections were limited, and the international nature of the alleged conspiracy, his United States citizenship and the focus on the American parent company favoured extradition. Extradition was therefore not contrary to the interests of justice.
6. The appeal was allowed in respect of counts 4 to 6 and dismissed in respect of counts 1 to 3. The appellant remained subject to the extradition order for counts 1 to 3 and was discharged in respect of counts 4 to 6.

• High Court (Administrative Court): The appeal against the Westminster Magistrates’ Court decision was allowed in respect of counts 4 to 6 and dismissed in respect of counts 1 to 3. The extradition order remained in force for counts 1 to 3.
• Westminster Magistrates’ Court: District Judge Tempia sent the case to the Secretary of State under section 87 of the Extradition Act 2003 on 29 June 2023.
• Secretary of State: An extradition order was made under section 93 on 21 August 2023.