Extradition High Court Hearing – Peter Weinzierl -v- SSHD S108 Appeal – Incompatibility of UK-US Extradition Treaty 2003

Background

Peter Weinzierl, an Austrian Banker, is facing extradition to the U.S on money laundering charges relating to the Austrian Bank, Meinl Bank AG, and the bank's alleged role in the world’s largest bribery and corruption scandal, involving Brazilian construction conglomerate Odebrecht SA and billions paid in bribes. Mr Weinzierl is accused of using “sham” transactions/companies to funnel more than $170 million through an offshore bank that Meinl Bank AG part owned, Meinl Bank Antigua.

The first three and half days concerned Mr Weinzierl’s statutory appeal under s103 Extradition Act 2003 (the “Act”). Which has been previously covered here.

The fourth and final day of Mr Weinzierl’s appeal was largely reserved to deal with a unique, nuanced and, surprisingly, yet to be considered, incompatibility issue in the UK-US Extradition Treaty 2003 (the “Treaty”) and the Act. 

S108 Appeal

Article 18 of the Treaty explicitly permits prosecution in the US for any and all ‘lesser included’ offences based on the same facts as those for which extradition was ordered, whether or not they are ‘extradition offences’.  By contrast, s.95(4)(b) of the Act permits such prosecution only for those offences that qualify as ‘extradition offences’; lesser included offences may be prosecuted only where those offences meet the fundamental requirements of dual criminality, jurisdictional reach, and minimum gravity. A lesser included offence within an extradition offence will not necessarily also be an extradition offence, because the relevant conduct from which an extradition offence must be identified may be different as between the original offence charged and the lesser included offence.

The Secretary of State failed to advance any credible riposte, suggesting that the Treaty may be interpreted to conform with s.95 of the Act. This is not the approach taken historically, any shortcomings in the “strict letter” of the Treaty are likely to prove determinative; the US interprets and applies such agreements restrictively according to the “precise terms” (USA v Assange [2022] 4 WLR 11 at [53]-[54]).

The appeal concluded ascertaining how the incompatibility issue came about, Lord Justice William Davis noted:

"…if you are right, it's not that [the UK-US] didn't manage to do it, they agreed a treaty which flew in the face of the specialty provisions in the Extradition Act, as it then was and in due course became.”

If the interpretation advanced is correct that, US law and the Treaty do not provide the specialty protection purposefully required by s.95(2) of the Act, in respect of lesser included offences, the court would be mandated to grant Mr Weinzierl’s appeal. Furthermore, it would be necessary to halt all other US extraditions, until such time as the Treaty can be modified to ensure compatibility with the Act, otherwise the court would be inundated with other s108 appeals.  

The Legal Framework

The specialty arrangements required under the Act are specified in s.95 as follows (emphasis added):

(3)  There are speciality arrangements with a category 2 territory if (and only if) under the law of that territory or arrangements made between it and the United Kingdom a person who is extradited to the territory from the United Kingdom may be dealt with in the territory for an offence committed before his extradition only if—

(a)  the offence is one falling within subsection (4), or

(b)  he is first given an opportunity to leave the territory.

(4)  The offences are—

(a)  the offence in respect of which the person is extradited;

(b)  an extradition offence disclosed by the same facts as that offence, other than one in respect of which a sentence of death could be imposed;

(c)  an extradition offence in respect of which the Secretary of State consents to the person being dealt with;

(d)  an offence in respect of which the person waives the right that he would have (but for this paragraph) not to be dealt with for the offence.

For the purposes of s.95(4)(b), the definition of ‘extradition offence’ in s.137(1)(a) and (3)(a)-(c) includes:

(i) a requirement that the relevant conduct is a criminal offence in both the requesting state and the requested state (‘the dual criminality principle’) (e.g.s.137(3)(b));

(ii) a requirement that the UK would claim jurisdiction over the relevant conduct in equivalent circumstances (‘the jurisdictional reach principle’) (e.g. ss.137(3)(a) and (b))1;

(iii) a requirement that the relevant conduct must be punishable by at least 12 months in both the requesting state and the requested state (‘the minimum gravity principle’) (e.g. s.137(3)(b) and (c)).

The relevant specialty protection within the Treaty is in Article 18, which is in materially different terms to those in s.95 above.  Article 18 provides in relevant part (emphasis added):

Rule of Specialty

1. A person extradited under this Treaty may not be detained, tried, or punished in the Requesting State except for:

(a) any offense for which extradition was granted, or a differently denominated offense based on the same facts as the offense on which extradition was granted, provided such offense is extraditable, or is a lesser included offense;

(b) any offense committed after the extradition of the person; or

(c) any offense for which the executive authority of the Requested State waives the rule of specialty and thereby consents to the person's detention, trial, or punishment.

For the purpose of this subparagraph:

(i) the executive authority of the Requested State may require the submission of the documentation called for in Article 8; and

(ii) the person extradited may be detained by the Requesting State for 90 days, or for such longer period of time as the Requested State may authorize, while the request for consent is being processed

The Article 2 definition of Extradition Offences includes the requirements that the offence be punishable under the laws of both states by imprisonment of at least one year, and that if the offence has been committed outside the territory of the requesting state, the law of the requested state must provide for the punishment of such conduct committed outside its territory in similar circumstances, unless the executive authority otherwise grants extradition in its discretion.

Judgment has been reserved and not before early 2025. 

Further Information 

The case has been widely covered by the UK press, most recently by Law360.

Mr Weinzierl is represented by David Pack, Leah Kesby and Michael Lewis of Devonshires LLP; James Lewis KC, Ben Watson KC, and Ciju Puthuppally of 3 Raymond Buildings.

For all enquiries please contact David Pack.