Yusuf Muhumud v Government of Norway

For dual criminality, the extradition court applies the conduct test: it compares the case formally made against the requested person, as set out in the extradition request, with the ingredients of an equivalent UK offence. It need not investigate whether the requesting state’s offence contains every ingredient required by UK law.

Where a UK ingredient is not expressed in the particulars, it may be established by an irresistible inference from those particulars. Alternatively, the specified foreign offence may supply the necessary clarity, provided the particulars are not inconsistent with it. The “missing ingredient” analysis is required only where an essential UK ingredient is absent, or may be absent, from the foreign offence.

The appellant challenged an extradition order made by District Judge Tempia on 14 November 2022. Norway sought his extradition under Part 2 of the Extradition Act 2003 in relation to five alleged threats under section 263 of Norway’s Penal Code.

The issue was whether the particulars of conduct supplied in the request constituted conduct which would amount to offences in the United Kingdom. Norway relied on section 1 of the Malicious Communications Act 1988 and section 127(1) of the Communications Act 2003. The central questions concerned the conduct test, the missing ingredient test and the irresistible inference test.

1. The appeal was dismissed. The Judge had correctly concluded that the five contentious alleged offences satisfied the statutory dual-criminality test. The other alleged offences were uncontentious and extradition would proceed in relation to them.
2. Under sections 78(4)(b) and 137 of the Extradition Act 2003, the court asks whether the particulars of conduct specified in the request describe conduct which would constitute an offence under the law of the relevant part of the United Kingdom. Following Norris v USA [2008] UKHL 16, the comparison is between the formally identified case against the requested person and the ingredients of the UK offence. The court does not need to inquire into the ingredients of the foreign offence or the proof required at a later foreign trial.
3. The court found no missing ingredient for either UK offence. Threatening criminal conduct in circumstances suitable to induce serious fear necessarily involved a menacing message for the purposes of section 127(1) of the Communications Act 2003. It also necessarily involved conveying a threat with the purpose that the recipient or intended recipient would suffer distress or anxiety for the purposes of section 1 of the Malicious Communications Act 1988. The specified Norwegian offence therefore supplied the relevant clarity.
4. In any event, the particulars, read with the specified offence and the request as a whole, gave an irresistible inference that the messages were menacing, that the appellant intended them to be menacing, and that he knew they might be understood as such. They also gave an irresistible inference that the messages conveyed threats intended to cause distress or anxiety. The “joking or oblivious” possibility was inconsistent with the case formally made.
5. The court explained that the specified offence and the particulars may provide the necessary clarity in either of two ways: an ingredient may be express or irresistibly inferable from the particulars; or the specified offence may identify the ingredient, where the particulars are not inconsistent with it. The judge added that he would have wished to reconsider whether certain formulations in Assange v Sweden [2011] EWHC 2849 (Admin) and Cleveland v United States [2019] EWHC 619 (Admin) should be repeated without refinement, but nothing turned on that issue.
6. Certification under section 114(4) of the Extradition Act 2003 was refused because the proposed questions were not involved in the decision: the court had found no missing UK elements and had independently found the irresistible inferences satisfied.

• High Court (Administrative Court): extradition had been ordered by District Judge Tempia on 14 November 2022. The appeal against that order was dismissed.