9

The various forms of defensive spray, like pepper spray, are illegal in the United Kingdom under the Firearms Act for civilians to carry.

In the Kingdom of Spain, certain pepper spray brands are legal for civilians to carry.

I was curious how an extradition would work, where the UK wants to prosecute someone for pepper spray, by extraditing them from Spain. The Dual Criminality requirement is met, since both countries have laws prohibiting firearms.

However, since pepper spray itself is legal in Spain, would the extradition be allowed?

3
  • 1
    Commenting as I have maxed out on pending edits, pepper spray is a weapons subject to general prohibition see section 5(1)(b) Apr 4 at 9:07
  • I would expect that, even if both countries had English laws, there would be no extradition if the punishment is small enough.
    – SJuan76
    Apr 4 at 12:53
  • @SJuan76 The punishment is over a year in each jurisdiction, so the punishment is big enough to enable an extradition. Apr 5 at 5:16

2 Answers 2

12

Canada and most other jurisdictions internationally have opted to implement the double criminality principle through the conduct-based approach that asks whether the conduct in the foreign jurisdiction could amount to an offence under domestic law.

In the extradition proceedings for Wanzhou Meng, it was alleged that Huawei misled a U.S. bank about Huawei's connections with Iran. The bank was subject to the Iranian Transaction and Sanctions Regulations and a deferred prosecution agreement that required the bank to not provide financial assistance with certain connections to Iran (United States v Meng, 2020 BCSC 785).

Ms. Meng's alleged conduct would have amounted to fraud in the U.S.

But, the alleged misstatements would not have been material in Canada and would not amount to fraud:

The parties agree ... that ... financial institutions operating in Canada would not have been at risk of penalty for engaging in financial transactions or providing credit to companies doing business in Iran.

It would have been legal for Ms. Weng to submit the offending documents to a bank in Canada.

Nevertheless, the double criminality requirement was met.

The court rejected a fine parsing of the "conduct." It did not consider it at a "narrow" scope of the precise misstatement. This would "unduly isolate" the facts from the context of the fraud. Instead, the court took a broader view of the "conduct." The question was more properly whether materially false statements to a bank could constitute fraud in Canada.


So, whether double criminality is met in your circumstance will depend on the scope at which the court views the conduct.

If the conduct is conceived of as the possession of pepper spray specifically, then dual criminality will not be made out.

If instead the conduct is considered more broadly as the possession of a prohibited weapon, then dual criminality will be made out.

1
  • That is a fantastic answer. Looking at the last part of your answer, how would the conduct be determined as to whether it was possession of pepper spray, or possession of a prohibited weapon? As you explained, this makes a huge difference! Apr 5 at 6:24
3

Extradition would not be allowed since this violates the principle of dual criminality. Pepper spray is not a firearm.

16
  • 2
    The law might be called the Firearm Act, but it also covers pepper spray and other noxious liquids. Apr 4 at 7:36
  • 2
    @user5623335 If they're under 13, it's illegal in both countries, so they should extradite. If they're between 13 and 15 it's legal in Spain, so they shouldn't extradite.
    – Barmar
    Apr 4 at 8:26
  • 2
    In Germany, it would be illegal to carry a pepper spray which has not been certified by the German authorities. So would Germany extradite people for carrying a pepper spray in the UK which has not been certified by the UK authorities?
    – o.m.
    Apr 4 at 14:25
  • 1
    But if it's a minor-on-minor incident, then I agree that there are other considerations.
    – Barmar
    Apr 4 at 21:05
  • 2
    @user5623335: Then why did you say "laws prohibiting firearms" instead of "laws prohibiting pepper spray" in your question? Apr 5 at 1:41

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .