header-logo header-logo

19 February 2025
Issue: 8105 / Categories: Legal News , International justice , Criminal , Extradition
printer mail-detail

Supreme Court pushes back against US ‘overreach’

A man suspected of insider trading has escaped extradition due to the double criminality rule, in a landmark case that ‘effectively overturns’ a 20-year-old House of Lords precedent.

Ruling in El-Khouri v Government of the United States of America [2025] UKSC 3 last week, the Supreme Court quashed the order to extradite El-Khouri to the US, where he is charged with 17 offences. The appeal concerned the definition of an ‘extradition offence’ and the operation of the double criminality rule in s 137 of the Extradition Act 2003.

George Hepburne Scott, Church Court Chambers, said: ‘Crimes alleged abroad must also be crimes in the UK—the so-called “transposition” or “double criminality” test.

‘Therefore, if the relevant conduct occurs outside the requesting state, in order to be an extradition offence it must be an extra-territorial offence in the UK. The fundamental issue was that this offence is not an extra-territorial offence in the UK.

‘Previously, the law permitted such extra-territorial offending to constitute an extradition offence by use of the English common law purposive approach which included consideration of where the conduct was felt. The Supreme Court held that this was the wrong approach and did not reflect the clear statutory language of the Extradition Act 2003 in this regard.’

Richard Cannon, solicitor for El-Khouri, said the judgment ‘represents an important check on overreach by the US authorities in the way the US/UK extradition treaty operates.

‘From the outset, it has been clear that London was at the centre of the alleged misconduct in this case and the links to the US were tenuous. However, the US authorities relied upon the intended consequences of the alleged unlawful conduct to try to establish in law that it occurred inside their territory, relying upon a 20-year-old House of Lords precedent [Office of the King's Prosecutor, Brussels v Cando Armas [2005] UKHL 67].

‘The Supreme Court effectively overturned this precedent and found that in similar cases in the future the court would not be concerned with where the consequences of conduct were felt, but with where the conduct physically took place. If the conduct took place abroad, the UK court will only order extradition if it is satisfied that in corresponding circumstances equivalent conduct could justify extradition to or prosecution in the UK.’

MOVERS & SHAKERS

Jurit LLP—Caroline Williams

Jurit LLP—Caroline Williams

Private wealth and tax team welcomes cross-border specialist as consultant

Freeths—Michelle Kirkland Elias

Freeths—Michelle Kirkland Elias

International hospitality and leisure specialist joins corporate team as partner

Flint Bishop—Deborah Niven

Flint Bishop—Deborah Niven

Firm appoints head of intellectual property to drive northern growth

NEWS
Talk of a reserved ‘Welsh seat’ on the Supreme Court is misplaced. In NLJ this week, Professor Graham Zellick KC explains that the Constitutional Reform Act treats ‘England and Wales’ as one jurisdiction, with no statutory Welsh slot
The government’s plan to curb jury trials has sparked ‘jury furore’. Writing in NLJ this week, David Locke, partner at Hill Dickinson, says the rationale is ‘grossly inadequate’
A year after the $1.5bn Bybit heist, crypto fraud is booming—but so is recovery. Writing in NLJ this week, Neil Holloway, founder and CEO of M2 Recovery, warns that scams hit at least $14bn in 2025, fuelled by ‘pig butchering’ cons and AI deepfakes
After Woodcock confirmed no general duty to warn, debate turns to the criminal law. Writing in NLJ this week, Charles Davey of The Barrister Group urges revival of misprision or a modern equivalent
Family courts are tightening control of expert evidence. Writing in NLJ this week, Dr Chris Pamplin says there is ‘no automatic right’ to call experts; attendance must be ‘necessary in the interests of justice’ under FPR Pt 25
back-to-top-scroll