R the United States of America v Gypsy Nirvana
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate,Lord Justice Leggatt |
| Judgment Date | 15 March 2018 |
| Neutral Citation | [2018] EWHC 706 (Admin) |
| Docket Number | CO/4143/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 March 2018 |
[2018] EWHC 706 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Lord Justice Leggatt
Mr Justice Holgate
CO/4143/2017
APPEARANCES
Mr J Hall QC and Mr J Smith (instructed by Crown Prosecution Service) appeared on behalf of the Appellant.
Mr H Blaxland QC and Mr B Cooper (instructed by Saunders) appeared on behalf of the Respondent
The government of the United States of America has requested the extradition from this country of Mr Gypsy Nirvana to face criminal prosecution in Maine on a four count indictment returned by a Grand Jury on 14 August 2013 charging Mr Nirvana with offences of: (1) conspiracy to traffic marijuana; (2) conspiracy to import marijuana; (3) conspiracy to export marijuana; and (4) conspiracy to commit money laundering – in each case contrary to the laws of the United States.
Following an extradition hearing, the District Judge, for reasons given in a ruling dated 30 August 2017, refused the request for extradition and discharged Mr Nirvana. The essential reason for that decision was that the conduct of which Mr Nirvana is accused in the United States consists of trafficking, importing and exporting marijuana seeds and related money transactions, and that such conduct does not constitute a criminal offence under UK law. A necessary requirement for extradition was, therefore, not satisfied. The United States was given leave to appeal against that decision. This is the hearing of the appeal.
Extradition to the United States is governed by Part 2 of the Extradition Act 2003, as the United States of America has been designated as a category 2 territory pursuant to s.69 of the Act. Under s.78 one of the questions which the judge must consider at the extradition hearing is whether the offence specified in the request is an “extradition offence”. If the answer to that question is in the negative, the judge must order the person's discharge.
Pursuant to s.137, a person's conduct constitutes an extradition offence if certain conditions are satisfied. One of these conditions, set out in (3)(b), is that:
“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.”
It is that condition, often referred to as the “dual criminality rule”, which the District Judge held is not satisfied in this case. The rationale of the dual criminality rule, as explained by the House of Lords in Norris v Government of the United States of America [2008] UKHL 16, [2008] 1 AC 920, at para 88 is that:
“… a person's liberty is not to be restricted as a consequence of offences not recognised as criminal by the requested state…”
The decision of the House of Lords in that case also establishes that, in applying the test of dual criminality set out in s.137 of the Act, it is necessary to look at the conduct of which the person is accused in the foreign state and to identify the essence of the conduct alleged which, if proved, would give rise to a criminal offence – ignoring for that purpose “mere narrative background” and “adventitious circumstances connected with the conduct of the accused” and focusing on the “substance of the criminality charged” against the person: see paras 91, 97 and 99 of the judgment.
It is then necessary to ask whether the conduct, if it had occurred in this country, would constitute a criminal offence under UK law. The important feature of this country's criminal law, for present purposes, is that, while cannabis is a controlled drug which it is unlawful to produce or supply by reason of s.4 of the Misuse of Drugs Act 1971, and while it is also an offence under s.6 of that Act to cultivate any cannabis plant, cannabis seeds are not themselves a controlled drug. It is not an offence under UK law to produce or supply or offer to supply cannabis seeds. As explained by Leveson LJ, as he was, in the case of R v Jones [2010] 2 Cr App R 10 at para 1:
“The production of the controlled drug cannabis contravenes section 4(1)(a) of the Misuse of Drugs Act 1971 but it is not illegal to offer for sale or supply the paraphernalia associated with smoking cannabis and nor is it illegal to offer for sale or supply the equipment necessary to grow the plant, books which explain how cannabis may be grown or, indeed, cannabis seeds. As a result, there are a number of shops and other outlets which offer these goods for sale but it is obviously very important that these premises do not overstep the line and incite the commission of an offence.”
The law is different in the United States where, as is explained in an affidavit sworn by the prosecutor Mr Michael Conley in support of the extradition request in this case, the definition of the controlled substance marijuana includes marijuana seeds. The affidavit makes it plain that the conduct of which Mr Nirvana is charged involves trafficking etc in marijuana seeds. Thus, in relation to Count 1 of the indictment, which charges Mr Nirvana with conspiracy to manufacture, distribute or possess with intent to distribute marijuana, Mr Conley states at para 32 of his affidavit:
“The government's...
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