Asante Kwaku Berko vs United States of America

This case concerned an appeal by Asante Kwaku Berko against an extradition order to the United States for prosecution on charges of foreign bribery and money laundering.

TLDR:

• Asante Kwaku Berko appealed against an extradition order to the USA.
• The charges included foreign bribery and money laundering.
• The High Court allowed the appeal in part, discharging Berko on some counts but upholding the extradition on others.

The appellant, Asante Kwaku Berko, a dual citizen of the USA and Ghana, was employed by Goldman Sachs International (GSI) between December 2014 and March 2017. The United States sought his extradition to prosecute him for six offences related to an alleged foreign bribery scheme involving Ghanaian officials.

The extradition request was based on an indictment issued by the United States District Court for the Eastern District of New York, charging Berko with conspiracy to violate the Foreign Corrupt Practices Act (FCPA), substantive violations of the FCPA, money laundering conspiracy, and willful failure to file reports of foreign bank accounts.

District Judge Tempia had previously decided to send the case to the Secretary of State under section 87 of the Extradition Act 2003, and the Secretary of State ordered the extradition under section 93. Berko appealed this decision, arguing that the charges did not meet the dual criminality requirement and that extradition should be barred by reason of forum.

Ground 1 of the appeal concerned counts 4-6, which alleged that Berko failed to file reports of foreign bank accounts. The High Court found that these counts did not constitute extradition offences under English law, as there was no equivalent legal duty to disclose foreign bank accounts in England. Therefore, the appeal was allowed on this ground, and Berko was discharged in respect of counts 4-6.

Ground 2 of the appeal addressed the forum bar, arguing that the substantial measure of Berko's relevant activity was performed in the UK. The High Court found that although some harm occurred in the USA, significant harm also occurred in Ghana and the UK. However, the court concluded that the delay in prosecuting in the UK would be contrary to the interests of justice and that Berko's connections to the UK were limited. Therefore, the appeal was dismissed on this ground, and the extradition order for counts 1-3 was upheld.

The High Court's decision highlights the importance of the dual criminality requirement in extradition cases and provides guidance on the application of the forum bar in complex international cases.

Legal representatives: Rachel Scott (instructed by CJS Defence Ltd) for the appellant, Nicholas Hearn (instructed by Crown Prosecution Service) for the respondent.

Judicial Panel: The Honourable Mr Justice Bourne

Case Citation Reference: [2024] EWHC 1392 (Admin)