High Court Rules on Extradition of Former Goldman Sachs Executive

Introduction

This case is an appeal against the decision of District Judge Tempia, sitting at the Westminster Magistrates' Court on 29 June 2023, to send the appellant's extradition case to the Secretary of State under section 87 of the Extradition Act 2003. The appellant's extradition was ordered by the Secretary of State on 21 August 2023 under section 93. The extradition request is governed by Part 2 of the 2003 Act.

On 27 November 2023, Heather Williams J granted permission to appeal in respect of the first ground of appeal. She refused permission on a second ground, and that permission application was renewed before the Honourable Mr Justice Bourne on a 'rolled up' basis.

Background

The United States of America sought the extradition of Asante Kwaku Berko for prosecution on six offences related to an alleged foreign bribery scheme involving Ghanaian officials. The appellant, a dual citizen of the USA and Ghana, was employed by Goldman Sachs International (GSI) from December 2014 until March 2017. The allegations involved corrupt payments to Ghanaian officials in connection with a proposed investment deal by a Turkish energy company, Aksa Enerji.

On 26 August 2020, a grand jury indictment charged Berko with six counts, including conspiracy to violate the Foreign Corrupt Practices Act (FCPA) and money laundering. He was arrested on 3 November 2022 under a provisional extradition request issued by the US Department of Justice.

Grounds of Appeal

Ground 1 concerned counts 4 to 6, which alleged that Berko wilfully failed to file reports of foreign bank accounts for the years 2015, 2016, and 2017. Ground 2 addressed counts 1 to 3, which involved conspiracy to violate the FCPA, a substantive violation of the FCPA, and a money laundering conspiracy.

The District Judge had rejected arguments that counts 4-6 did not amount to extradition offences due to lack of dual criminality and that extradition should not be ordered by reason of forum. The appeal was brought under section 103 of the 2003 Act.

Legal Analysis

Mr Justice Bourne reviewed the applicable law under section 137 of the 2003 Act, which defines an 'extradition offence' and requires the conduct to constitute an offence under the law of the relevant part of the United Kingdom. The leading case on this subject is Norris v Government of the USA [2008] 1 AC 920 HL, which established the 'conduct test' rather than an 'offence test' for dual criminality.

Ground 1 Decision

Justice Bourne found that the essence of the conduct relevant to counts 4-6 was a failure to declare the balances of foreign bank accounts. He concluded that the failure to declare was not part of the conspiracy and money laundering charges. The relevant obligation to declare foreign bank balances did not exist in English law, making counts 4-6 non-extradition offences. Thus, the appeal on ground 1 was allowed.

Ground 2 Decision

Regarding the forum bar under section 83A of the 2003 Act, Justice Bourne agreed with the District Judge that some harm from the alleged offending occurred in the USA, including misuse of the US banking system and reputational damage to GS Group. The delay caused by prosecuting in the UK rather than the USA was a significant factor in favour of extradition.

Justice Bourne found that the appellant's community ties to the UK were limited and that the links between the case and the UK were not especially persuasive. The appeal on ground 2 was dismissed.

Conclusion

The appeal was allowed on ground 1, discharging the appellant in respect of counts 4-6. However, the appeal was dismissed on ground 2, and the appellant remained subject to an extradition order in respect of counts 1-3.

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)