What is an extradition offence – El Khouri v United States

The Supreme Court, in El-Khouri v Government of the United States of America, overturned a twenty-year-old precedent and quashed the extradition order of a British trader to the US. Joseph El-Khouri was accused of taking part in an insider training conspiracy and was charged, by a Grand Jury in New York, with seventeen offences relating to the alleged acts.  

The court, granting itself permission to appeal, overturned the extradition order on the basis that the conduct alleged entirely took place outside of the United States. The joint judgement written by Lord Lloyd-Jones and Lord Leggatt, with whom Lord Reed, Lord Briggs and Lord Stephens agree, rejected the observations of Lord Hope in Office of the King’s Prosecutor, Brussels v Cando Armas that conduct alleged could be considered conduct ‘in’ a territory – and therefore coming under section 137(3) of the Extradition Act 2003 – as long as “its effects were intentionally felt there”. The judgement said that following Lord Hope’s comments “created a paradox comparable to the fate of Schrödinger’s cat”, where the same physical acts could be classified as done “outside” the requesting state’s territory because they are done geographically outside of it, whilst simultaneously being done “in” it because their intended effects occurred within the requesting state’s territory. 

The court came to the conclusion that: sections 137(3) and 137(4) of the Act were mutually exclusive, and that it was necessary to decide at the outset which applied; that the court’s only concern is with the physical location of where the acts specified in the extradition request were done, and not with any effect, intended or otherwise; that it was not a requirement of either subsection (3) or (4) that relevant conduct occurred exclusively inside or outside of the territory of the requesting state and that in this case all of Mr. El-Khouri’s conduct occurred outside of the United States. 

The judgement also specified the test for double criminality within subsection (4)(b), namely that “all that is necessary is to ask whether… a UK court would exercise jurisdiction in the particular case.” 

The court decided that the equivalent conduct would not constitute an offence of insider trading under section 52(1) of the CJA 1993 as the conduct would fall outside the territorial scope of the act, as described in section 62.  

Chambers ranked barristers appeared for both the appellant and the respondent. You can see our extradition table here.  

The appellant, Mr. El-Khouri, was represented by Clair Dobbin KC and Ciju Puthuppally of 3 Raymond Buildings. 

The respondent, Government of the United States of America, was represented by Mark Summers KC of Matrix Chambers, Benjamin Seifert of 1 Crown Office Row and Honor Fitzgerald of Furnival Chambers.