Government of Bermuda v Oporto: Divisional Court allows extradition appeal over cruise ship offence

The Divisional Court has held that an offence allegedly committed aboard a Bermuda-flagged cruise ship in international waters is an extradition offence under the Extradition Act 2003 and overturning a district judge's discharge of the requested person. In Government of Bermuda v Oporto [2026] EWHC 2801 (Admin), Lady Justice Andrews and Mr Justice Bourne allowed Bermuda's appeal and directed that the case go to the Home Secretary.

The loss of the deeming provision

Bermuda sought the extradition of a crew member to face a sexual assault charge, arising from an incident alleged to have occurred in August 2025 while the vessel sailed between Scotland and Iceland. Senior District Judge Goldspring decided that the offence was not an extradition offence under section 78(4)(b) and discharged him under section 78(6).

Under the Extradition Act 1989, conduct on a vessel of a designated country was treated as occurring in that country's territory, a fiction dating from the Extradition Act 1870. The 2003 Act has no equivalent, and Parliament gave no explanation for the change. In international law, a ship is not part of its flag state's territory.

Section 137(4) governs

Applying the Supreme Court's decision in El-Khouri v United States of America [2025] AC 845, the court said the first question under section 137 is a binary one: did the conduct occur in the requesting territory or outside it? The ship was not Bermudian territory in any sense, so section 137(4) applied.

That provision requires the requesting state to establish, to the criminal standard, that it has extra-territorial jurisdiction and that the United Kingdom would have such jurisdiction in corresponding circumstances, with the conduct punishable by at least 12 months' imprisonment. The court rejected the argument that omitting a deeming provision took ship-board conduct outside section 137(4) altogether. Conduct on a ship beyond the flag state's territorial waters simply occurs outside its territory, as counsel for the respondent ultimately accepted.

Where the district judge erred

The judge had concentrated on section 239 of the Bermuda Merchant Shipping Act 2002, which concerns offences on the "high seas", rather than section 240, on which Bermuda relied. That led to a detour into whether the ship was in an exclusive economic zone, and to a finding of a "material lack of correspondence" with section 282(1) of the Merchant Shipping Act 1995. The Divisional Court called the high seas debate irrelevant.

Section 240 gives Bermuda's courts jurisdiction over acts outside Bermuda by seafarers employed on Bermuda ships,, in terms very similar to the English provision. Section 282, the court held, confers extra-territorial jurisdiction rather than creating a fiction of domestic jurisdiction. The alleged conduct carries up to 20 years' imprisonment in Bermuda, and the maximum for rape in England and Wales is life.

Territory and jurisdiction

Bermuda's alternative case under section 137(3) failed, as the judge had held, though for different reasons. He was wrong to say that El-Khouri decided the point, but his conclusion accords with it and with the 2003 Act's focus on real events rather than legal fictions.

Bermuda had relied on Bye v Sint Maarten [2025] EWHC 183 (Admin), where Kerr J gave "territory" in section 93(4) a juridical meaning, and on Minervini [1959] 1 QB 155, which equated territory with jurisdiction. The court distinguished both: Bye concerned the mechanics of surrender, and Minervini an 1873 treaty. It was unnecessary to decide whether Bye is consistent with El-Khouri.

Under section 106(6), the court quashed the discharge order and directed that the case be sent to the Secretary of State under section 87(3), for a decision on extradition under section 93.