El-Khouri v Government of the United States of America [2025] UKSC 3 (12 February 2025)

In an extradition request from the US, the Supreme Court considered whether alleged bribery of a Lebanese official met the UK's dual criminality test. The court held that a foreign official acting corruptly is still acting in their public capacity.

Facts

The Government of the United States of America requested the extradition of the appellant, Mr El-Khouri, a dual Lebanese and United Kingdom national, to face trial for offences of conspiracy to commit wire fraud and money laundering. The allegations concern a ‘kickback’ scheme related to a contract between a US telecommunications company, American Tower Systems (ATS), and the Lebanese Civil Aviation Authority (LCAA). It was alleged that Mr El-Khouri acted as an intermediary, facilitating corrupt payments from ATS to a senior official at the LCAA to ensure ATS’s bid for a telecommunications contract was successful. The payments were allegedly disguised through a series of offshore companies and accounts. The District Judge initially ordered Mr El-Khouri’s extradition, but the High Court overturned this, directing his discharge. The US Government appealed to the Supreme Court.

Issues

The central legal issue before the Supreme Court was the interpretation of the dual criminality requirement for extradition under the Extradition Act 2003. Specifically, the court had to determine whether the conduct alleged against Mr El-Khouri would constitute an offence of bribery under section 6 of the Bribery Act 2010 had it occurred in the United Kingdom. This turned on the question of whether the Lebanese official, in accepting a bribe, was acting ‘in his capacity as a foreign public official’ as required by section 6(3)(b) of the 2010 Act. The appellant argued that a corrupt official is not acting ‘in his capacity as such’ but rather on a private ‘frolic of his own’, meaning the conduct would not be an offence in the UK, and thus the dual criminality test was not met.

Judgment

The Supreme Court unanimously allowed the appeal, finding that the alleged conduct did satisfy the dual criminality test. Lord Lloyd-Jones, giving the sole judgment, rejected the appellant’s narrow interpretation of the Bribery Act 2010.

Reasoning of the Court

The court adopted a purposive interpretation of the Bribery Act 2010, noting its objective was to provide a modern and comprehensive scheme to combat bribery, particularly in an international context. Lord Lloyd-Jones scrutinised the meaning of ‘in his capacity as a foreign public official’ within section 6. He concluded that the phrase must be read in the context of the entire section, which focuses on conduct intended to influence the official in the performance of their public functions.

The court reasoned that the very purpose of bribing a foreign public official is to leverage their public position. To accept the appellant’s argument would create a significant loophole, undermining the Act’s purpose. Lord Lloyd-Jones highlighted the absurdity of the appellant’s position with a key passage:

There is a paradox at the heart of the appellant’s case. It would mean that the paradigm case of bribery of a foreign public official would not be an offence under section 6 of the 2010 Act because the official in accepting the bribe would not be acting in his capacity as such. The more flagrantly corrupt the conduct of the official, the less likely he would be to fall within the scope of the offence. That cannot be what Parliament intended.

The judgment clarified that an official does not cease to act in their public capacity simply because they act corruptly. The relevant connection is between the advantage offered and the official’s public functions. As long as the bribe is intended to influence the official in the exercise of those functions, the condition in section 6(3)(b) is met. The court found that the alleged conduct—influencing the award of a public contract—was directly related to the official’s public role at the LCAA.

Implications

This decision provides a definitive clarification on the scope of the offence of bribing a foreign public official under the Bribery Act 2010. It confirms that the UK courts will interpret the Act broadly to prevent offenders from escaping liability by arguing that their corrupt actions were a private matter separate from their official duties. The judgment reinforces the UK’s commitment to tackling international corruption and ensures that the dual criminality test in extradition proceedings will not be frustrated by narrow, technical interpretations of bribery legislation. It affirms that the focus is on the connection between the corrupt act and the official’s public function, not on whether the official was acting virtuously or within their authorised powers.

Verdict: The appeal by the Government of the United States of America was unanimously allowed. The High Court’s order for the appellant’s discharge was set aside.

Source: El-Khouri v Government of the United States of America [2025] UKSC 3 (12 February 2025)