Supreme Court pushes back against US ‘overreach’

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.’