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Kern v Government of the USA

Judgment Cited authorities 4 Cited in Precedent Map Related
JurisdictionEngland & Wales
JudgeLORD JUSTICE SULLIVAN,MR JUSTICE SILBER,MR JUSTICE BLAIR
Judgment Date05 November 2009
Neutral Citation[2009] EWHC 3006 (Admin)
Docket NumberCO/7090/2009
CourtQueen's Bench Division (Administrative Court)
Date05 November 2009
Categories

[2009] EWHC 3006 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Lord Justice Sullivan

Mr Justice Silber

Mr Justice Blair

CO/7090/2009

Between:
Kern
Claimant
and
Government of the United States of America
Defendant

Miss Rosemary Davidson (instructed by Lawrence & Co) appeared on behalf of the Claimant

Mr Julian Knowles (instructed by Crown Prosecution Service) appeared on behalf of the Defendant

LORD JUSTICE SULLIVAN
1

This is an appeal against the decision of District Judge Coleman on 8 May 2009 to send the appellant's case to the Secretary of State pursuant to Section 87 (3) of the Extradition Act 2003 ("the Act").

2

The appellant's extradition is sought by the Government of the United States of America ("the USA") in respect of two offences: (1) production of child pornography which is count 1 on the American indictment; and (2) travel with intent to engage in a sexual act with a minor which is count 2 on the American indictment.

3

There was no dispute before the district judge that count 1 was an extradition offence within the meaning of Part II of the Act. However it was submitted that count 2 was not an extradition offence. The district judge rejected that submission. Before this court Miss Davidson, on behalf of the appellant, contends that the district judge erred in that respect.

4

The USA is a category 2 territory. The relevant section defining what is an extradition offence is Section 137 (1) and (2) which provide, so far as material for present purposes:

"(1) This section applies in relation to conduct of a person if—

(a) he is accused in a category 2 territory of the commission of an offence constituted by the conduct …..

(2) The conduct constitutes an extradition offence in relation to the category 2 territory if these conditions are satisfied—

(a) the conduct occurs in the category 2 territory;

(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom;

(c) the conduct is so punishable under the law of the category 2 territory (however it is described in that law)."

5

There is no dispute that conditions (a) and (c) in sub-section (2) are satisfied. The conduct alleged in count 2 did occur in the USA and that conduct was punishable under American law. The question is whether the conduct falls within sub-paragraph (b) in sub-section (2).

6

What was the appellant's conduct? The factual background to the extradition request is set out in some detail in a supporting affidavit of Miss Trumbell-Harris, an assistant US Attorney for the US Attorney's Office in the Northern District of Indiana. For present purposes it is unnecessary to read more than her explanation in paragraph 17 of the affidavit of the conduct that is alleged in respect of count 2:

"The second count, count two, charges Kern with travelling in inter-state or foreign commerce for the purpose of engaging in a sexual act with a minor in violation of Title 18 United States Code paragraph 2423 (b). To satisfy its burden of proof and convict Kern on this count the Government must establish beyond a reasonable doubt each of the following essential elements:

(1) that Kern travelled from the United Kingdom to the United States and from the state of Illinois to the state of Indiana; and

(2) that Kern did so for the purpose of engaging in a sexual act with a minor.

The Government will establish these elements at trial by introducing US Immigration records, the testimony of the victim and his family and photographs Kern took of himself engaging in a sexual act with the victim."

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