Dual criminality is the requirement in international extradition law that the offence the requested person is accused of committing, or has been convicted of and is required to serve a sentence for, in the requesting state, is also an offence under domestic law in the state from which extradition is sought.
For example, an individual cannot be extradited from the UK to face trial or serve a sentence for an offence which effectively criminalises homosexuality, because there is no equivalent criminal offence in the UK.
Dual criminality can also be raised in relation to financial crime extradition cases. In the case of Navinder Sarao and The Government of the United States of America [2016] EWHC 2737 (Admin), for example, it was argued that Mr Sarao should not be extradited to the US for offences including spoofing (essentially placing large orders that manipulate the market and then cancelling them enabling a buy or sell at a profit) on the basis that the offence of spoofing did not exist in UK criminal law.
How is dual criminality established?
Sections 64/65 and Section 137/138 of the Extradition Act 2003 (which deal with Category 1 and Category 2 countries respectively) set out the requirement as follows:
The conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom.
In establishing dual criminality, the Judge does not embark upon an assessment of the evidence in the case to determine whether the requesting state has a prima facie case against the requested person (although this may well be an additional requirement in the case of the extradition arrangements with some countries), i.e. whether the individual is likely to be found guilty on the specific facts of the case (R (Castillo) v. King of Spain [2005] 1 WLR 1043).
The elements of the equivalent offences need not be identical. The test is ultimately a conduct test and the question is whether, if the individual had carried out the conduct they are accused of in the UK, they would be guilty of an offence under the criminal law in the relevant part of the UK, (for example, under the criminal law of England and Wales).
Where there is an additional element relating to the intent of the offence under the equivalent English offence, known by its legal term “mens rea” (literally, ‘guilty mind’), the requested person can still be extradited where there is an inevitable inference that those guilty under the offence in the requesting state would also satisfy the required intent element of the English offence (Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin); Troka v Albania [2020] 1 WLUK 79).
Dual criminality and the UK’s withdrawal from the European Arrest Warrant (“EAW”) scheme
In relation to EAW cases, the EAW Framework Decision lists 32 offences for which it is not necessary for the state receiving the extradition request to establish whether the conduct would also be an offence in that country. However, since Brexit and the Trade and Cooperation Agreement was agreed on 24 December 2020, in relation to EU extradition cases from the UK dual criminality will now again need to be established on a case-by-case basis, and in the same way as for international extradition cases from the UK.
Gherson has extensive experience in handling extradition cases. If you have any questions about a current or potential extradition case please do not hesitate to contact us, send us an e-mail, or alternatively, follow us on Twitter or LinkedIn to stay up-to-date.
The information in these blogs is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in these blogs. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.
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