The High Court has clarified how the Extradition Act 2003 applies when an alleged offence takes place aboard a foreign-flagged vessel outside the flag state’s territorial waters, holding that the absence of an old statutory “deeming” provision does not prevent extradition under the Act’s extra-territoriality test.
What did the Divisional Court decide?
In Government of Bermuda v Arvie Oporto [2026] EWHC 2801 (Admin), Lady Justice Andrews and Mr Justice Bourne allowed the Government of Bermuda’s appeal against a decision of Senior District Judge Goldspring at Westminster Magistrates’ Court. The lower court had discharged Mr Oporto under section 78(6) of the Extradition Act 2003 after finding that the offence specified in Bermuda’s request was not an extradition offence.
The Divisional Court held that the alleged conduct occurred outside Bermuda and that the requirements of section 137(4) were satisfied. The court therefore quashed the discharge order and remitted the case to the magistrates’ court, directing it to send the matter to the Secretary of State under section 87(3), for a decision under section 93 on whether extradition should be ordered.
The judgment is not an order for extradition. It resolves the extradition-offence issue and returns the case to the statutory process for the Home Secretary’s decision.
What happened aboard the Queen Anne?
The allegation concerned an incident on 13 August 2025 aboard the Queen Anne, a cruise ship sailing under the Bermuda flag on an Icelandic cruise after departing Southampton. Mr Oporto, a Filipino national employed as a cabin steward, was accused by a female passenger of raping her in her cabin. The ship’s captain said that when the complaint was brought to her attention at about 7.30pm, the vessel was in international waters between Iceland and Scotland.
Bermuda sought Mr Oporto’s return to face a charge of sexual assault under section 323 of the Criminal Code of Bermuda, which classifies rape as sexual assault. He was arrested at Southampton docks on 17 August 2025 under a provisional warrant and later appeared before Westminster Magistrates’ Court. He was granted conditional bail on 17 April 2026 and remained on bail at the time of the High Court appeal.
- Alleged incident aboard the Bermuda-flagged Queen Anne in international waters
- Mr Oporto arrested at Southampton docks
- Bermuda’s full extradition request served
- Westminster Magistrates’ Court gives judgment ordering discharge
- Divisional Court hears Bermuda’s appeal
- High Court allows the appeal and remits the case
Why did section 137(4) apply?
The central issue was whether the alleged offence was an “extradition offence” for the purposes of section 78(4)(b) of the 2003 Act. Section 137 distinguishes between conduct occurring inside a category 2 territory and conduct occurring outside it. Section 137(3) addresses conduct within the requesting territory; section 137(4) applies where the conduct occurred outside that territory and requires proof of corresponding extra-territorial criminal jurisdiction in the UK.
The court held that the Queen Anne was not part of Bermudian sovereign territory merely because it sailed under the Bermuda flag. The 2003 Act also contains no equivalent of the earlier statutory provision that treated conduct aboard certain foreign vessels as if it had occurred within the flag state. The alleged conduct therefore took place outside Bermuda, making section 137(4) the applicable route.
In reaching that conclusion, the court applied the approach in El-Khouri v United States of America [2025] AC 845. The initial question is a factual one: where did the alleged acts physically take place? If outside the requesting territory, the court then considers whether both the requesting territory and the relevant part of the UK claim extra-territorial jurisdiction in corresponding circumstances, and whether the required punishment threshold is met.
“The ship is not part of Bermudian territory in any sense”
The court rejected the argument that the omission of the former deeming provision left shipboard conduct outside both subsections. In the absence of a provision deeming the conduct to have occurred within the flag state, the ordinary position is that it occurred outside that state if the vessel was located outside its territory.
How did the court compare Bermudian and UK law?
The Divisional Court found that Bermuda had extra-territorial jurisdiction under section 240(1)(a) of the Bermuda Merchant Shipping Act 2002. That provision covers an act in relation to a person or property, done outside Bermuda by a seafarer employed on a Bermuda ship, where the act would be an offence under Bermudian law if done in Bermuda. The alleged sexual assault fell within that description and was punishable in Bermuda by a term exceeding 12 months’ imprisonment.
The corresponding UK provision was section 282(1) of the Merchant Shipping Act 1995. It addresses acts outside the United Kingdom by a master or seaman employed on a UK ship which would constitute an offence if done in a part of the UK. The court concluded that equivalent conduct by a seaman aboard a UK-registered ship in international waters would constitute an extra-territorial offence under UK law. Rape is punishable in England and Wales by life imprisonment.
The court stressed that section 137(4) does not require a line-by-line comparison of the wording of the Bermudian and UK statutes. The question is whether both legal systems would exercise extra-territorial jurisdiction over equivalent conduct in corresponding circumstances, and whether the statutory penalty threshold is met. The court found no material difference between the operation of the two provisions for this purpose.
A separate argument about section 239 of the Bermuda Merchant Shipping Act 2002 and the meaning of “high seas” had distracted from the relevant analysis. Bermuda’s case relied on section 240, which contains no “high seas” limitation. The court held that questions about whether the vessel was in an exclusive economic zone, rather than the high seas, were therefore irrelevant to the issue it had to decide.
What happens next?
The appeal was allowed. Under section 106(6) of the Extradition Act 2003, the Divisional Court quashed the order discharging Mr Oporto and remitted the case to the magistrates’ court. The magistrates’ court must now send the case to the Secretary of State under section 87(3), so that the Home Secretary can decide whether to order extradition under section 93.
The judgment is significant for extradition cases involving alleged offences aboard vessels outside the territorial waters of the state whose flag they fly. It confirms that a ship is not automatically treated as part of that state’s territory, but that the absence of a statutory deeming provision does not prevent the extra-territorial jurisdiction test in section 137(4) from being applied.
Frequently asked questions
Did the High Court order Mr Oporto’s extradition?
No. The court allowed Bermuda’s appeal, quashed the discharge order and directed that the case be sent to the Home Secretary. The Secretary of State must decide whether extradition should be ordered.
Why did section 137(4) of the Extradition Act 2003 apply?
The alleged conduct took place aboard a Bermuda-flagged vessel outside Bermuda’s sovereign territory. Section 137(4) applies to conduct outside the requesting category 2 territory and requires corresponding extra-territorial jurisdiction under UK law.
Does a ship form part of the territory of the country whose flag it flies?
Not for the territorial analysis under section 137 in this case. The Divisional Court held that the ship was not part of Bermudian territory merely because it was registered under the Bermuda flag.
What Bermudian law gave Bermuda extra-territorial jurisdiction?
The court relied on section 240(1)(a) of the Bermuda Merchant Shipping Act 2002, which covers qualifying acts outside Bermuda by seafarers employed on Bermuda ships.
Why was the “high seas” argument irrelevant?
Bermuda relied on section 240, not section 239, of its Merchant Shipping Act 2002. Section 240 does not contain the “high seas” limitation, so the court said it was unnecessary to determine whether the vessel was in the high seas or an exclusive economic zone.