Key Facts
- •Asante Kwaku Berko appeals a decision to extradite him to the USA for six offences related to an alleged foreign bribery scheme.
- •The offences include conspiracy to violate the Foreign Corrupt Practices Act (FCPA), substantive violation of the FCPA, money laundering conspiracy, and three counts of wilfully failing to file reports of foreign bank accounts.
- •Berko worked for Goldman Sachs International (GSI) in the UK during the relevant period.
- •The alleged bribery scheme involved Ghanaian officials and a Turkish energy company.
- •Berko is a dual citizen of the USA and Ghana.
- •The extradition request is governed by Part 2 of the Extradition Act 2003.
Legal Principles
Dual criminality requires a 'conduct test', not an 'offence test'. The court must identify the essence of the conduct and whether it would amount to a crime in the UK.
Norris v Government of the USA [2008] 1 AC 920 HL
In applying the conduct test, the court must translate the circumstances from the foreign context to the UK context, but not import the legal obligations from foreign law. The relevant obligation must exist under UK law.
Norris v Government of the USA [2008] 1 AC 920 HL; In re Collins no.3 (1905) 10 CCC 80; Badre v Court of Florence, Italy [2014] EWHC 614 (Admin)
Extradition is barred by reason of forum if it would not be in the interests of justice, considering factors such as the location of harm, victim interests, prosecutor's beliefs, evidence availability, potential delays, and the defendant's connections to the UK.
Extradition Act 2003, sections 79 and 83A
The court on appeal is entitled to stand back and say that a question ought to have been decided differently because the overall evaluation was wrong.
Love v Government of the United States of America [2018] 1 WLR 2889
Outcomes
Appeal allowed on Ground 1 (dual criminality regarding counts 4-6).
The essence of counts 4-6 (failure to declare foreign bank accounts) does not amount to a crime under UK law, even considering the context of the bribery scheme. No equivalent duty to disclose exists in UK law.
Appeal dismissed on Ground 2 (forum bar).
While some harm occurred in the UK, the significant delay in a UK prosecution, combined with Berko's limited UK connections and the international nature of the conspiracy, outweighs other factors. Extradition is in the interests of justice.