George Hepburne Scott comments on the Supreme Court’s decision in El-Khouri v Government of the United States of America, in Law360

George Hepburne Scott has provided comment in Law360 on yesterday’s Supreme Court decision in El-Khouri v Government of the United States of America, in which the court ruled that the UK will only order extradition on the condition that equivalent circumstances would justify extradition to or prosecution in the UK.

“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.

“In this case, the problem for the US was that all of the appellant’s actions occurred in the UK. The fundamental issue was that this offence is not an extra-territorial offence in the UK. Therefore, this was not an extradition offence according to the Supreme Court’s interpretation of the law in this case.

“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.”

George’s comments were published in Law360, 12 February 2025.