El-Khouri v Government of the United States of America

Under Extradition Act 2003, section 137(3) and section 137(4) are mutually exclusive. The applicable provision depends on where the requested person physically performed the acts forming the substance of the alleged criminality. The location of intended or actual effects is irrelevant, and narrative background must be disregarded.

For conduct outside the requesting state, section 137(4)(b) requires a mirror-image transposition of relevant locations. Extradition is available only if equivalent conduct would constitute an extraterritorial UK offence in corresponding circumstances. The money-laundering offences in sections 327–329 of the Proceeds of Crime Act 2002 do not criminalise the relevant dealing with property abroad. Section 340(11)(d) defines “money laundering”; it does not extend those offences extraterritorially.

The United States sought the appellant’s extradition to face charges arising from alleged insider dealing. He allegedly obtained confidential information in the United Kingdom and used a UK broker to trade contracts for difference. Almost all relevant acts occurred in the United Kingdom.

A district judge held that the conduct was an extradition offence under section 137(3) of the Extradition Act 2003. The Secretary of State ordered extradition. The High Court dismissed the appellant’s appeal in [2023] EWHC 1878 (Admin), but certified a point of law concerning section 137(3)(b).

The Supreme Court considered whether the conduct occurred in or outside the requesting state, which transposition exercise applied, and whether equivalent conduct would constitute an extraterritorial UK offence.

1. Appeal allowed unanimously. Lord Lloyd-Jones and Lord Leggatt delivered the joint judgment, with which Lord Reed, Lord Briggs and Lord Stephens agreed. The extradition order was quashed and the appellant was discharged.

2. Sections 137(3) and 137(4) of the Extradition Act 2003 are mutually exclusive. The court must first identify where the requested person physically performed the acts specified in the extradition request. It must disregard narrative background and focus on the substance of the alleged criminality. The location of intended or actual effects is irrelevant: paras 50–64, 83.

3. The ratio of Office of the King’s Prosecutor, Brussels v Cando Armas [2005] UKHL 67 remained correct insofar as conduct need not occur exclusively within the requesting state for section 137(3) to apply. Lord Hope’s further view that acts abroad constitute conduct in the requesting state when their intended effects are felt there was obiter and wrong. It conflicted with the statutory language, destroyed the mutual exclusivity of subsections (3) and (4), and improperly imported rules of extraterritorial criminal jurisdiction into the anterior question of geographical allocation: paras 49–65.

4. Section 137(3)(b) requires only the assumption that conduct occurring in the requesting state occurred in the relevant part of the United Kingdom. It neither requires nor permits conduct occurring elsewhere to be transposed in the opposite direction. The analyses in Hosseini [2006] EWHC 1333 (Admin) and Kodos [2010] EWHC 897 (Admin) were correct: paras 37–48.

5. Section 137(4)(b), by contrast, requires mirror-image transposition. Conduct and relevant events outside the requesting state are assumed to have occurred outside the United Kingdom, and vice versa. Conduct in a third state remains in a third state: paras 41–42, 69, 83.

6. The substance of the alleged criminality occurred in the United Kingdom. The incidental payment for a New York hotel room did not alter that conclusion. Section 137(4), rather than section 137(3), therefore applied: paras 66–67.

7. On the transposed facts, the territorial conditions governing insider dealing under the Criminal Justice Act 1993 were not met. Sections 327–329 of the Proceeds of Crime Act 2002 likewise do not criminalise acquisition, use, possession or conversion of criminal property occurring abroad. Section 340(11)(d) is definitional and does not confer extraterritorial jurisdiction. R v Rogers [2014] EWCA Crim 1680 was wrongly decided: paras 70–82.

1. United Kingdom Supreme Court: Allowed the appeal unanimously, quashed the extradition order and ordered the appellant’s discharge: [2025] UKSC 3.
2. High Court: Dismissed the appeal from the district judge, but certified a point of law of general public importance: [2023] EWHC 1878 (Admin).
3. Westminster Magistrates’ Court: The district judge held that the alleged conduct satisfied section 137 of the Extradition Act 2003 and sent the case to the Secretary of State.
4. Secretary of State: Ordered extradition to the United States.