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Challenge to extradition on grounds that it was contrary to ‘dual criminality’ principle and ECHR, art 8

Diri v United States of America [2015] EWCA 2130 (Admin)

Related Member(s):
Aaron Watkins, Alex Bailin QC, Mark Summers QC
Related Practice Area(s):
Extradition and Mutual Assistance, Human Rights
Court:

The appellant challenged his extradition to the US to face charges concerning the export of goods to Syria, including scientific and technical equipment capable of use in the development of chemical and biological weapons, without a licence. The US claimed the appellant was conducting operations from his home in London, and that this assisted Syrian terrorism and development of weapons of mass destruction.

The appellant made two arguments on appeal. First, he argued that his extradition should not be allowed because there was no ‘dual-criminality’ for the purposes of the Extradition Act, s 137(2)(b), and second, because it would be a disproportionate interference with his ECHR, art 8 right.

In relation to dual-criminality, it was argued that it was not an offence under UK law to export five of the nine items he was charged with exporting under US law, unless the exporter from the UK had knowledge that the items would be used for a prohibited purpose. The appellant cited the ‘conduct test’ established by the House of Lords in Norris v Government of the United States [2008] 1 AC 920 in asserting that the ‘essence of the conduct’ did not include knowledge.

While the dual-criminality argument could only succeed with regards to five items, it was also argued that ECHR, art 8 should bar the extradition in its entirety. The US authorities had chosen to unseal the indictment, and the appellant argued that his family in Syria suffered intimidation as a result, with some members even detained and tortured. He argued that the combined effect of this, coupled with the attention that his actual extradition would receive, would amount to a disproportionate interference with art 8.

The Court held that deliberate deception was part of the essence of the conduct, which constituted the offence of conspiracy to defraud under English law. It also held that the district judge had not been wrong to reject the art 8 ground, even considering new facts about the murder of the appellant’s cousin in Syria. A balancing exercise had been carried out, and this could not be interfered with. It also dismissed suggestions that the unsealing of the indictment had been unlawful or an abuse of process, and rejected suggestions that the appellant should be tried in the UK.

Aaron Watkins, Alex Bailin QC and Mark Summers QC were involved in the case.