| EXTRADITION — Extradition crime — Jurisdiction — Defendant indicted by jury in United States of America — Government wanting to admit further material for purposes of establishing dual criminality — Whether further material admissible — Extradition Act 2003, ss 70, 78, 137
Edwards v Government of the United States of America [2007] EWHC 1877 (Admin)
QBD: Sedley LJ and Nelson J: 31 July 2007
{In deciding whether there was dual criminality under the Extradition Act 2003, the domestic court was confined to the facts alleged in the offence specified in the extradition request.
The Queen’s Bench Divisional Court so held when allowing in part the appeal by Joshua Edwards pursuant to s 103 of the Extradition Act 2003 against the decision of District Judge Tubbs sitting at the City of Westminster Magistrates’ Court on 16 April, 2007 that the case be sent to the Secretary of State for the Home Department under s 87(3) of the 2003 Act.
The defendant was indicted by a Maryland grand jury on 11 counts. This appeal related to the seventh count of assault in the first degree, and the tenth count of assault in the second degree. Counsel for the government of the United States of America submitted that it was not limited to the bald facts alleged on the face of the two material counts which amounted in English law, if proved, to no more than common assault, an offence which carried less than 12 months’ imprisonment. If limited to these materials, there could be no dual criminality on the tenth count because its English equivalent was common assault, which was not an extradition offence. The single issue was whether further material was admissible for the purposes of establishing dual criminality.
SEDLEY LJ said that the appeal raised a question of law which was capable of having significant effects in other proceedings under Pt 2 of the 2003 Act: in deciding whether there was dual criminality, was the domestic court limited to what was set out in the foreign indictment, together with any document which it incorporated by express reference, or was it able to take into account any narrative or explanation tendered by the requesting state? “The conduct” referred to in s 137 of the 2003 Act was confined to the facts alleged in “the offence specified in the request”, the phrase used in ss 70 and 78 of the 2003 Act. In a normal US case such as the present that would limit the inquiry into dual criminality to, on the one hand, the indictment and any document incorporated by reference into it and, on the other, the criminal law of England and Wales. Such an inquiry in the present case established dual criminality in relation to the seventh count of the Maryland indictment but not in relation to the tenth and the appeal would be allowed to the extent only of discharging the defendant and quashing the order for his extradition on count 10 of the indictment.
NELSON J agreed.
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