Diri v Government of the United States of America [2015] EWHC 2130 (Admin)

On 17 July 2015, the High Court rejected the appeal of Ahmad Diri, against his extradition from the United Kingdom to the United States, to face 21 counts concerning the export of goods from the US to Syria, including those capable of use in chemical and biological weapons.

The Court found that the dual criminality requirement under section 137(2)(b) of the Extradition Act 2003 (EA 2003) was met, and that Article 8 of the European Convention on Human Rights (ECHR) was not breached. The judgment is here.

Background

In an indictment issued on 20 November 2012, by the US Federal District Court for the Middle District of Pennsylvania, it is alleged that between 2007 and 2011, Mr Diri was part of a conspiracy to deceive US exporting companies and customs officials, in relation to numerous exported goods, including equipment capable of use in the development of chemical and biological weapons.

More specifically, it is alleged that Mr Diri, with two conspirators, concealed the true value and destination of goods from US suppliers; as a result, false, incomplete and materially misleading information was provided on documentation which was ultimately submitted to the US Department of Commerce.

On 14 March 2013, the US authorities requested that authorities in the UK provisionally arrest Mr Diri, and he was arrested the same day. On 2 May 2013, an affidavit in support of a request for Mr Diri’s extradition, from the UK to the US, was sworn in the US. On 10 May 2013, the Home Secretary, Theresa May, certified the request. On 23 April 2014, the indictment was publicly ‘unsealed’ and details were disclosed to the media.

District Judge Purdy, Summer 2014

The main extradition hearing took place in the summer of 2014 (dates unspecified). The grounds on which extradition was contested were:

1. In relation to the export items identified in paragraph 9 of the indictment, to which each of the 21 counts relate, there was no dual criminality for the purposes of s.137(2)(b) EA 2003.
2. Extradition would be disproportionate and in violation of Article 8 ECHR.
3. The forum bar provision barred extradition to the US, under s. 83A EA 2003.
4. Extradition proceedings were an abuse of process of the English court.

District Judge Purdy rejected all grounds:

1. The conduct test applied in relation to dual criminality, following Norris. The alleged conduct in Count 1 of the indictment amounted to “conspiracy to defraud contrary to common law” in the UK. This met the dual criminality test in respect of all identified items and 21 counts in the indictment.
2. In combined reasoning, with ground 4, Judge Purdy held that the unsealing of the indictment was “unfortunate in the extreme” and “caused real problems” to Mr Diri’s family but did not amount to a disproportionate violation of his Article 8 ECHR rights or an abuse of process.
3. The interests of justice could only be served by a trial in the US.

The case was sent to the Secretary of State on 17 November 2014. On 5 January 2015, the Secretary of State ordered Mr Diri’s extradition. Mr Diri appealed.

High Court, 23 July 2015

Two grounds of appeal were advanced:

1. There was no dual criminality for the purposes of s. 137(2)(b) EA 2003 in relation to five items in paragraph 9 of the indictment. Conspiracy to defraud was not the corresponding offence in England and Wales, where the export offence required knowledge of the prohibited end use for those items on the part of the exporter. Such knowledge was not alleged, nor could it been inferred that the Mr Diri had such knowledge.
2. Extradition would be disproportionate under Article 8 ECHR. The unsealing of the indictment, and the publicity surrounding it, had ramifications for his family in Syria; Mr Diri’s uncle was kidnapped and his cousin murdered. Further, the unsealing constituted an abuse of process, and he could be tried in the UK in respect of the first four items in the indictment.

Lord Justice Aikens and Mr Justice Cranston held:

1. The essential alleged conduct would constitute a conspiracy to defraud in England and Wales, in relation to the five items in the indictment, where conduct is not prohibited unless the exporter had knowledge of the prohibited end use for those items. The conduct alleged would constitute an agreement to dishonestly deceive exporting countries, and US government departments and officials. Therefore, export of goods, combined with deliberate misrepresentations, aimed at the UK authorities, would constitute a conspiracy to defraud. Wai Yu-Tsang and Tappin considered. Ground rejected.
2. Article 8 ECHR will only be allowed if the District Judge “made the wrong decision”, applying Celinski. The fact of the murder of Mr Diri’s cousin in Syria is a past matter; it has no relevance to the effect of future extradition on his Article 8 ECHR rights, and those of his family in Syria. Further, the unsealing of the indictment against Mr Diri by US authorities did not constitute an abuse of process; it was in compliance with US law and procedure. Submissions that Mr Diri could be tried in the UK in respect of the first four items of the indictment rejected: this was an attempt to invoke forum arguments in relation to Article 8 ECHR, which is not permitted. Norris and Singh considered. Ground rejected.

Appeal dismissed. The order of extradition made by District Judge Purdy confirmed.