Matthew Grimm v Government of USA

For dual criminality, the court compares the legal ingredients of the requesting state’s offences with the corresponding domestic offences. Where the extradition request expressly identifies knowledge as a necessary element of each offence, an alleged absence of domestic mens rea is not arguable merely because the relevant knowledge must be inferred from the conduct alleged.

In applying the forum bar, the court may assess the practicalities of making evidence available in the United Kingdom. The statutory matters concerning location of harm, evidential availability and delay remain distinct, but consideration of practical delay does not necessarily involve double-counting. The existence of a co-defendant may be relevant to the jurisdiction in which prosecution should proceed.

The appellant faced extradition to the United States for conspiracy to import, importing controlled substances and associated money laundering offences. A United States grand jury indictment was returned in October 2022. Following a decision of District Judge Tempia dated 20 October 2023, the Home Secretary ordered extradition on 4 December 2023.

Permission to appeal was refused on the papers by McGowan J, and two of four original grounds were renewed. The appellant challenged the decision on dual criminality, alleging a mismatch in the required knowledge, and on forum, alleging errors in the application of section 83A of the Extradition Act 2003.

1. Dual criminality. The challenge under section 137(4)(b) of the Extradition Act 2003 was unarguable. The extradition request identified express and necessary elements for all counts, including knowingly importing controlled or prohibited substances. The conspiracy charge required knowledge of the plan’s unlawful purpose, and the money-laundering charge likewise connected knowledge to the unlawful importation. There was therefore clear correspondence between the alleged United States offences and the relevant domestic criminality. The court was not required to treat the necessary knowledge as absent merely because it could be inferred from the alleged conduct.
2. Forum. The District Judge had stated and applied the forum law correctly under section 83A. The specified matter concerning loss or harm required consideration of where most of the harm occurred, or was intended to occur. The later description of all the harm as occurring in the United States did not undermine the earlier and correct assessment that most of it occurred there.
3. In deciding whether evidence could be made available in the United Kingdom, the District Judge was entitled to consider practicalities, including delay. Delay was also a separate specified statutory matter, but the evaluative reasoning referred to it only once and did not double-count it.
4. The District Judge properly recognised the limited evidence about the co-defendant’s prosecution and location, but was entitled to regard the co-defendant’s inclusion in the indictment as an important consideration favouring prosecution in one jurisdiction. The case concerned importation into the United States, and the forum balance decisively favoured that country.
5. There was no realistic prospect that either the dual-criminality or forum conclusions were wrong. Permission to appeal was refused.

• District Judge Tempia: After an oral hearing, sent the case to the Home Secretary in a judgment dated 20 October 2023.
• Home Secretary: Ordered extradition on 4 December 2023.
• High Court (Administrative Court): McGowan J refused permission on the papers. Fordham J refused renewed permission to appeal.