Diri v Government of the United States of America

For dual criminality, the court must identify the essential conduct alleged in the extradition request and ask whether that conduct would constitute an offence under United Kingdom law. An agreement dishonestly to mislead exporters or public authorities may amount to conspiracy to defraud, even where the underlying export would not itself be prohibited in the United Kingdom. On an Article 8 appeal, the question is whether the extradition judge made the wrong decision. Findings of fact are ordinarily respected, and speculative future consequences carry little weight. The possibility of prosecution in the United Kingdom is relevant only rarely, generally where the Article 8 balance is finely poised.

The appellant challenged the District Judge’s decision sending an extradition request to the Secretary of State and the Secretary of State’s subsequent order for extradition to the United States. The request concerned 21 charges arising from alleged exports of controlled goods from the United States to Syria.

Before the High Court, the appellant argued that there was no dual criminality for five of the goods, that extradition would disproportionately interfere with Article 8 rights, that the proceedings were an abuse of process, and that forum considerations barred extradition. The central issues were whether the alleged conduct constituted conspiracy to defraud under English law and whether the District Judge’s Article 8 assessment was wrong.

1. Appeal dismissed. The District Judge’s order for extradition was confirmed.
2. Under section 137(2)(b) of the Extradition Act 2003, the court applied the conduct test identified in Norris v Government of the United States of America (No 1) [2008] 1 AC 920. The essential conduct alleged included an agreement to acquire goods for Syrian customers, conceal their true destination, make a financial gain and evade licensing requirements.
3. The alleged conduct constituted conspiracy to defraud. The defendants were alleged to have agreed dishonestly to deceive exporters and United States authorities so that licences would be granted, or not sought, on the basis of false information. The fact that export of the final five items might itself have been lawful in the United Kingdom was immaterial. The reasoning in Wai Yu-Tsang v The Queen [1992] 1 AC 269 and its application in Tappin v Government of the USA [2012] EWHC 22 (Admin) supported that conclusion.
4. On Article 8, the question was whether the District Judge made the wrong decision: Polish Judicial Authorities v Celinski and others [2015] EWHC 1274 (Admin). The High Court respected the District Judge’s factual findings. Publicity following the unsealing of the indictment was a past matter. There was no cogent evidence that extradition would cause further consequences for the appellant’s family, and that possibility was speculative.
5. The unsealing of the indictment was lawful and was not unconscionable enough to amount to abuse of process. Following Norris v Government of the United States of America (No 2) [2010] 2 AC 487, the possibility of a United Kingdom prosecution would ordinarily matter only if the Article 8 balance were finely balanced. It was not so balanced here.

1. District Judge, Westminster Magistrates’ Court: rejected the dual-criminality, Article 8, forum-bar and abuse-of-process objections.
2. Secretary of State for the Home Department: ordered extradition on 5 January 2015.
3. High Court (Administrative Court): dismissed the appeal and confirmed the order for extradition.