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

[2015] EWHC 2130 (Admin)

Case No CO/5967/2014

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Thursday 23 rd July 2015

Before

LORD JUSTICE AIKENS

MR JUSTICE CRANSTON

Between

AHMAD FERAS DIRIAppellant

GOVERNMENT OF THE UNITED STATES OF AMERICARespondent

(Transcript of the Handed Down Judgment of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street, London EC4A 2DY

Tel No: 020 7404 1400, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Mark Summers QC and Ben Cooper (instructed by Kaim Todner) for Appellant

Alex Bailin QC and Aaron Watkins (instructed by CPS) for Respondent

Hearing Hearing dates: 17/06/2015

Judgment

Lord Justice Aikens :

[1]This is the judgment of the court.

Synopsis

[2]The extradition of Ahmad Diri (“the appellant”) is requested by the Government of the USA (“the USA”) so he may stand trial in a United States Federal District Court in Pennsylvania to face 21 charges concerning the export of goods from the USA to Syria. Broadly, it is said that, between 2007 and 2011, the appellant was part of a conspiracy to deceive US exporting companies and US customs officials about the destination of various exports, which included scientific and technical equipment capable of use in the development of chemical and biological weapons. The export of such equipment needed a licence from the US Department of Commerce (if it could be exported at all) and none was ever obtained. It is alleged that the appellant conspired with a US citizen, Harold Rinko (“Mr Rinko”) who operated an export business in the US, and the appellant’s brother, Moawea Diri (“MD”), who lives and works in Syria.

[3]The modus operandi of the conspirators is alleged to be that the appellant would send Mr Rinko requests for quotations for goods to be exported to the UK, the United Arab Emirates and Jordan, which were, in fact, for onward transmission to Syria. Mr Rinko would contact suppliers in the USA. It is alleged that the three conspirators concealed from the US suppliers the true value of the goods (to the ultimate users) and destination of the goods, with the result that false, incomplete and materially misleading information was given on sales and export documents such as invoices, waybills and statements about the end-users. This then resulted in documents being submitted to the US Department of Commerce which gave false and misleading information about the nature of the goods to be exported and the identity of the end-users. To pay for the goods, wire transfers of money were made (it is alleged by the appellant) from the Lebanon and Jordan to the USA.

[4]The investigation by US law officers led to the Indictment which named Mr Rinko, the appellant and MD and contained the 21 counts against all three defendants. The Indictment went before a Grand Jury of the US Federal District Court for the Middle District of Pennsylvania. The Indictment was issued and sealed as a “True Bill” on 20 November 2012. We will refer to it as “the Indictment”. That day a warrant for the appellant’s arrest was issued by the same court. On 14 March 2013 the US authorities requested the UK provisionally to arrest the appellant. A warrant for the appellant’s arrest was issued by a District Judge at Westminster Magistrates’ Court and he was arrested the same day.

[5]On 2 May 2013 Mr Todd K Hinkley, an Assistant US Attorney for the Middle District of Pennsylvania, swore an affidavit in support of a request for the extradition from the UK to the USA of the appellant. On 10 May 2013 the Secretary of State for the Home Department certified that the request was valid for the purposes of section 70 of the Extradition Act 2003 (“the EA”). The initial hearing in the extradition proceedings was on 15 March 2013. The main extradition hearing was delayed because of the possibility of a “proffer agreement” with the US prosecutors. This did not come to anything. Thereafter there were further delays caused by the need to obtain evidence about events in Syria which relate to the

Article 8 ECHR

ground for resisting extradition.

[6]The main extradition hearing took place on several days during the summer of 2014 before District Judge Purdy (“the DJ”). The grounds of opposition were:(1) that in relation to items (e) to (i) that are identified in paragraph 9 of the Indictment, to which each of the 21 counts relate, there is no “dual-criminaility” for the purposes of section 137(2)(b) of the EA;

(2) overall, the extradition would be a disproportionate interference with the appellant’s Article 8 rights;

(3) the “forum bar” provision of section 83A of the EA operated in this case to bar extradition to the USA;

(4) the extradition proceedings were an abuse of the process of the English court. The DJ reserved his decision and reasons, which were promulgated on 23 October 2014. The DJ rejected all the grounds of opposition and the extradition request was sent by the DJ to the Secretary of State on 17 November 2014. On 5 January 2015 the Secretary of State ordered the appellant’s extradition.

[7]Meanwhile the appellant had appealed to this court. The hearing took place on 17 June and we reserved our judgment. Before us, there were two grounds of appeal: first, the “dual – criminality” point and, secondly, the Article 8 point. The arguments on “forum bar” and “abuse of process” were not presented separately but were urged as a part of the appellant’s Article 8 submissions.

The Indictment

[8]At paragraphs 5 to 12, the Indictment sets out the background to the 21 counts. It states that by the International Emergency Economic Powers Act, Congress granted to the US President the authority to deal with “unusual and extraordinary threats to the national security, foreign policy or economy” of the USA, where such an unusual and extraordinary threat came from outside the US. In 2003, by the Syria Accountability and Lebanese Sovereignty Act, Congress granted the US President the power to prohibit exports to Syria of all products of the USA other than food and medicine. In 2004 the US President ordered that the Secretary of Commerce prohibit the exportation or re-exportation to Syria of “Commerce Controlled Items” unless licensed or subject to one of a very limited number of exceptions. On 4 May 2004, the US Commerce Department issued a federal regulation, called Export Administration Regulation, General Order Number 2, (“EAR”), which required (save for very limited exceptions) a licence or approval from the Department of Commerce to export or re-export to Syria all items subject to the EAR.

[9]The Indictment identifies, at paragraph 9, nine specific items that were the subject of control by the Commerce Department and subject to the EAR. A full description of each item, as it appears in the Indictment, is set out in Appendix 1 to this judgment. In summary, the first three items are kits for the detection of chemical warfare agents; the fourth is a gas-mask; the fifth and sixth items are meters to measure, respectively, chemicals and gas streams; the seventh is a high volume magnetic stirrer for mixing and testing chemical compounds; the eighth is a heavy duty transmission system which can be used for both vehicle propulsion and for drilling or setting oil pipes or pump operation; and the ninth is a scanner used to locate accurately buried pipeline and to display its position and depth.

[10]The Indictment then recites that, pursuant to US laws and regulations, exporters, shippers or freight forwarders were required (during the relevant period of 2007 – 2011) to file certain forms and declarations concerning exports of all nine of these goods. The documents were typically filed electronically through the Automated Export System (“AES”) which was managed by the US Department of Homeland Security, Customs and Border Protection. One such document is the Shipper’s Export Declaration (“SED”). That form is used for export control purposes by the Bureau of Industry and Security, as well as to compile trade statistics by the US Bureau of Census. The SED has to identify the end-user of the product to be exported. The identity of the end-user for each item will determine whether the particular item may be exported without a licence, or with a licence for that specific product or whether the item cannot be exported at all. All SEDs filed through the Automated Export System are regarded as statements to the US government that the relevant transaction and export will occur as described in the document. The Indictment asserts that the appellant, Mr Rinko and MD did not obtain an export licence or authorisation from the Commerce Department to send any items from the USA to Syria.

[11]The Indictment then sets out the 21 counts in detail. We will summarise the effect of count 1, which was the focus of the submissions before us. This alleges that between 2003 and the date of the Indictment the three defendants “knowingly and willingly conspired and agreed together and with each other and with persons known and unknown to the Grand Jury” to do two things. The first was to violate five identified US statutes. These are laws concerning exports “contrary to law”; that is: the laws relating to export from the USA to Syria without first obtaining a licence from the Department of Commerce, the statute against “wire fraud”; the statute against money laundering; and a statute against “false statements”.

[12]The second thing was: “to defraud the United States by impeding and obstructing its governmental functions and operations, of and concerning its right to have its business and its affairs and particularly the transaction of official business of the Department of Homeland Security and the Commerce Department, conducted honestly and impartially, free from corruption, fraud, improper and undue influence, dishonest, unlawful impairment and obstruction, in violation of Title 18, United States Code, section 371”.

[13]The “objects” of the conspiracy are then set out. These are identified as follows:

“(a) to acquire US-origin goods from the United States to supply to customers in Syria; (b) to conceal from the United States companies and the United States government that the US – origin goods were destined for Syrian end-users; (c) to make a financial profit for the defendants; and (d) to evade regulations, prohibitions, and licensing requirements for exports from the United States to Syria.”

[14]Further details of how it is said that the conspiracy was carried out are then given under the headings “Manner and Means” and “Overt Acts”. In the latter section, the Indictment sets out in detail what is alleged to have been done by the conspirators in relation to each of the 9 items identified.

[15]Mr Mark Summers QC, for the appellant, accepted before us (as he had below) that the test of “dual criminality” was satisfied in respect of the first four items as set out in Appendix 1 hereto. He said that this was because each of those items was and is listed as being for a “single use” under regulations made under the United Kingdom Export Controls Act 2002, so that export from the UK is prohibited and any violation of export controls in respect of those items would be an offence under section 68 of the Customs and Excise Management Act 1979 (“CEMA”). However, the other five items are not listed as “single use” and the export of them from the UK is not prohibited unless the exporter from the UK had knowledge of a particular prohibited end-use for those items. The prohibited end-use was defined, until 9 May 2011, as use of the relevant item in weapons of mass destruction and, since 9 May 2011, it has been any military use of the relevant item. It is not alleged in the US request for extradition of the appellant that he had knowledge of those end-uses of the latter five items; neither, in Mr Summers’ submission, is there anything alleged in the US request from which it could be inferred that the appellant had such knowledge. Thus, it is argued, “dual criminality” cannot be established in respect of those 5 items. We consider this argument in more detail below.

[16]To conclude the summary of the Indictment: counts 2 to 7 allege that the three defendants “devised and intended to devise” a scheme “to defraud and to obtain money and property by means of materially false and fraudulent pretences, representations and promises” in relation to several of the nine identified items. Counts 8 to 13 allege that the three defendants aided and abetted each other in the purchase and sale and export of various of the listed items on dates in 2008, 2009, 2010 and 2012, without a requisite licence. Counts 14 to 19 allege unlawful transfers of funds from Jordan and Lebanon to the USA for the purposes of the unlawful activity of exporting prohibited items; essentially, they are money-laundering charges. Counts 20 and 21 allege that the three defendants made “materially false, fictitious and fraudulent statements and representations to the US Departments of Commerce and Homeland Security” by providing false values and false ultimate consignees and end-users in filing to the AES and in SEDs. Mr Summers submitted that the Indictment was “grossly multiplicitous” and that the only reason for setting out the charges in this way was to expose the defendants to consecutive sentences. The Indictment was designed to “break the will” of the appellant to resist the prosecution and to force him to enter a guilty plea. The US request for the appellant’s extradition; the procedural history in the USA and further facts.

[17]The material on which the Government’s request for the appellant’s extradition was based is contained in the affidavit of Mr Hinkley. This states that one of the co-defendants, Mr Rinko, has been interviewed by US authorities. In the course of interview Mr Rinko admitted that he had never had a Department of Commerce export licence for any of the listed items. He explained in the interview how he had been contacted by the appellant and the way they had worked. The affidavit sets out two examples of how the defendants worked. This is said to be based on evidence collected in the course of the investigation.

[18]The affidavit then sets out a summary of the procedural history of the case in the USA up to the point where a warrant was issued for the appellant’s arrest in the USA on 20 November 2012. The affidavit then summarises the US law relating to each of the counts in the Indictment.

[19]On 30 January 2014, the US prosecutor stated that the charges in the Indictment would be “aggressively pursued”. On 23 April 2014, the Indictment was publicly “unsealed” and details were given to the world’s press. It is accepted by both sides that there was widespread coverage concerning the allegations made in the Indictment, in particular the allegations of being involved in the production of chemical weapons. It is Mr Summers’ submission that these actions by the US authorities were reckless.

[20]At the time that the Indictment was “unsealed” there were public statements by the US Department of Justice and by Mr Hinkley, alleging that the appellant was trading in materials used to manufacture chemical weapons; that he was exporting those goods from the USA to Syria; and that he was directing the operations from his house in North London. The statements asserted that the US prosecution was an effort “to shut down the supply chain of goods that were being exploited by the Syrian state to support terrorism and develop and proliferate weapons of mass destruction, including chemical weapons.”

[21]The appellant gave evidence before the DJ that the “unsealing” of the Indictment and the statements by the US authorities had had repercussions for his family in Syria. These included: searches of the appellant’s family’s house by the Syrian authorities, intimidation of the family and removal of the family’s passports by the authorities; detention of MD, who was then questioned, intimidated and warned that he remained under observation; and the kidnap, detention and torture of the appellant’s uncle by the Syrian authorities. This last incident was confirmed by a police report obtained from Syria. The DJ accepted the appellant’s oral evidence on these factual matters, although he rejected the argument that these facts transformed the appellant’s Article 8 case into a compelling one or that they meant that the USA’s extradition request amounted to an abuse of the process of the English court.

The conclusions of District Judge Purdy on the “dual criminality” and Article 8 issues

[22]On the question of whether the charges relating to the last five of the nine identified items satisfied the “dual-criminailty” requirement under section 137(2)(b) of the EA, the DJ applied the test set out in Norris v Government of the United States of America (No 1)

[2008] 1 AC 920

, particularly at [91], viz. “the conduct test”. Applying this test the DJ concluded, in paragraph 8 of his reasons, that the conduct set out in relation to Count 1 of the Indictment amounted to “conspiracy to defraud contrary to common law” and so met the dual-criminality test. The consequence was that the test was therefore satisfied in respect of all identified items and also for 21 counts in the Indictment.

[23]The DJ dealt with the Article 8 and “abuse of process” arguments together because of the material relied on, although the DJ stated expressly that he appreciated that the legal tests to be used in each case were quite different. The DJ found, as facts,(1) that the appellant’s family in Syria felt vulnerable, given the volatility of Syria and

(2) that the family now felt at greater personal risk given the publicity (particularly in the Arabic press) following the unsealing of the Indictment in April 2014. This heightened feeling of risk was because it was thought that both sides in the Syrian conflict would blame the appellant’s family for assisting the others in supplying components for chemical weapons and also because the appellant’s involvement in such a trade would indicate the family was wealthy and so could be a suitable target for ransom claims.

[24]The DJ found that the publicity that resulted from the unsealing of the Indictment was “unfortunate in the extreme” and had caused “real problems for the Diri family”. The publicity meant that “inaccurate and distorted reports compounded an already delicate position”. However, the DJ held that the unsealing in the USA was not an abuse of the process of the English court. He also concluded that the appellant’s extradition would not be a disproportionate interference with the appellant’s Article 8 rights.

[25]The DJ dealt separately with the argument that the appellant’s extradition was barred by virtue of what was then the recently enacted “forum bar” in section 83A This provision was added by the Crime and Courts Act 2013 Schedule 20(1) para 6 and came into effect on 14 October 2013 in England, Wales and N Ireland. Section 83A(1) stipulates that the extradition of a person to a Category 2 territory (thus including the USA) will be barred “by reason of forum” if the extradition would not be in the interests of justice. Section 83A(2) sets out the two criteria that have to be fulfilled to satisfy the “interest of justice” test and section 83A(3) sets out the exclusive matters that the court must consider. of the EA. The judge held that the “interests of justice” could only be properly served by a trial in the USA, so rejected that challenge as well. “Dual criminality”: the statutory provisions and their interpretation

[26]By section 78(4)(b) of the EA, when a person whose extradition is requested under Part 2 of the EA is brought before the “appropriate judge”, the judge must decide whether the offence specified in the extradition request is an “extradition offence”. He has to be satisfied to the criminal standard: section 206(2) and (3) of the EA. For the purposes of the present case, under the law in force at the relevant time, Section 137 of the EA was amended by virtue of The Anti-Social Behaviour, Crime and Policing Act 2014. Para 6 of the Anti-Social Behaviour, Crime and Policing Act 2014 (Commencement No 4 and Transitional Provisions) Order 2014 stipulates that the unamended provisions will apply to extradition proceedings started before 20 July 2014. The corresponding provisionsof the current sub-section (3) are in materially identical terms to what was sub-section (2). an “extradition offence” is one that meets the criteria set out in section 137(1), and (2) of the EA. Those sub-sections provide:(1) This section applies in relation to conduct of a person if- (a) he is accused in a category 2 territory of the commission of an offence constituted by the conduct, or (b) he is alleged to be unlawfully at large after conviction by a court in a category 2 territory of an offence constituted by the conduct and he has not been sentenced for the offence

(2) the conduct constitutes an extradition offence in relation to the category 2 territory if these conditions are satisfied – (a) the conduct occurs in the category 2 territory; (b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom. (c) the conduct is so punishable under the law of the category 2 territory (however it is described in that law).

[27]The correct interpretation of those sub-sections was considered by the House of Lords in Norris v Government of the United States of America

[2008] 1 AC 920

, in which, unusually, the committee of the House of Lords Lords Bingham of Cornhill, Rodger of Earlsferry, Carswell, Brown of Eaton-under-Heywood and Neuberger of Abbotsbury. gave a composite opinion. The principal issue for decision was whether count 1 in an Indictment issued by a United States court which alleged that the requested person, Mr Norris, had conspired with others to operate a price fixing agreement in several countries including the USA, but which did not allege dishonesty, constituted an “extradition offence” for the purposes of section 137(1)-(2) of the EA. Under the relevant USA law, there was no requirement to prove dishonesty in the participation of the cartel in order for the offence to be proved. The House of Lords held that the offence alleged was not an “extradition offence”. That was because, upon the correct interpretation of section 137(1)-(2), and in particular section 137(2)(b), an offence identified in the extradition request is only an “extradition offence” if the conduct that is described in the documents constituting the extradition request, ignoring mere narrative background but taking account of such allegations as are relevant to the description of “the corresponding United Kingdom offence”, would constitute an offence under the law of the relevant part of the UK: see [91] of the opinion.

[28]The Committee went on to consider whether counts 2 – 4 of the US Indictment (which alleged conspiracy to obstruct justice by tampering with witnesses and causing the destruction of documents) also constituted “extradition offences”. It was argued for Mr Norris that they could not, because mere price fixing itself was not (at the relevant time) an offence in the UK, so there would never have been a criminal investigation in the UK, therefore Mr Norris could not have been guilty of an offence of obstructing justice by interfering with such a (non) investigation. That ingenious argument was rejected. It was accepted on behalf of Mr Norris that price-fixing, when combined with other elements such as deliberate misrepresentation, could lead to various offences under English law, such as conspiracy to defraud. The exact outcome of an investigation (in the UK or anywhere) could not be determined until it was completed. Thus, the fact that the ultimate result of an investigation in the UK might be that Mr Norris had indulged in simple price-fixing, which was not an offence under English law, was “no reason to hold that it would not have been an offence under English law to obstruct the progress of an equivalent investigation by the appropriate body in this country”: see [100]. Therefore, if Mr Norris had tampered with witnesses or had caused documents to be destroyed with the intention of obstructing an investigation into possible criminal conduct by the responsible body in the UK, he would have been guilty of offences of conspiring to obstruct justice or obstructing justice. Thus, counts 2 – 4 of the US Indictment constituted “extradition offences”: see [101]. The arguments of the parties on the “dual criminality” and Article 8 issues.

[29]On the “dual criminality” ground, Mr Summers QC submitted that it was essential to characterise correctly what was the “essence of the conduct” of the allegations set out in the documents that constituted the request to extradite, leaving aside “mere narrative background”. In his submission the essence of the conduct was the unlawful export of listed items in breach of US sanction controls. He relied on paragraphs 5-12 of the US Indictment. The “corresponding” UK offence was, in his submission, export of items prohibited under CEMA and the Export Control Act 2002 and the regulations made under that Act. If the conduct set out in the US Indictment was compared with the “corresponding” UK offence, then the conduct of exporting from the UK the last 5 items listed in paragraph 9 of the US Indictment would not constitute an offence under the relevant UK sanctions law. Knowledge of the end-use is not alleged in the request documents, neither is anything alleged from which such knowledge could be inferred.

[30]Conspiracy to defraud was not the correct “corresponding” UK offence, because misrepresentations to US officials could not be the “essence” of the conduct alleged in the request documents; the “essence” was constituted by the export of the items to Syria via third countries. Even if conspiracy to defraud is the appropriate UK “comparator” offence, it would not be made out because any misrepresentations to UK officials would not have been material, because the export of the final 5 items to Syria from the UK was lawful. Therefore, omitting to state that Syria was the final destination was not a material misrepresentation. Mr Summers relied on Welham v DPP

[1961] AC 103

and Wai Yu-Tsang v The Queen

[1992] 1 AC 269

. He submitted that, upon a proper analysis, Tappin v Government of the USA

[2012] EWHC 22 (Admin)

was not contrary to the appellant.

[31]Mr Summers accepted that, even if his arguments on “dual criminality” were correct, the extradition request would be effective in respect of the first four items in paragraph 9 of the Indictment, in respect of both the conspiracy charge and the other substantive charges concerning those items. In respect of the Article 8 ground, however, the extradition should be barred in its entirety. Mr Summers submitted that it was at least arguable that the “unsealing” of the Indictment and the publicity that surrounded it was linked to the threats that the appellant’s family had suffered in Syria, the kidnap of his uncle and (as set out in the appellant’s latest statement Dated 19 May 2015. The respondent did not object to the court receiving this material on appeal. ) the murder of his cousin. Mr Summers submitted that the extradition of the appellant to face these charges would give a clear signal that there was a case against the appellant on these charges and this would increase the risk to the appellant’s family in Syria.

[32]Mr Summers submitted that the legal consequences of what he characterised as the “reckless” actions of the US authorities were: first, that it disentitled the US government to require the appellant’s extradition. In this respect, Mr Summers relied on the case of McKinnon v Government of the USA

[2008] 1 WLR 1739

At [41] in the speech of Lord Brown of Eaton-under-Heywood. for the proposition that in appropriate circumstances the action of the requesting authority could be such as to imperil the integrity of the extradition process such that extradition must be refused. Moreover, “recklessness”, as opposed to illegal activity, could found an abuse of process argument as was stated by Lloyd-Jones LJ in Home Secretary v CC

[2013] 1 WLR 2171

at [97].

[33]Secondly, the combination of the actions that the US authorities had already taken and their consequences, combined with the effect of actual extradition and the publicity that would accompany it, were such as to amount to a disproportionate interference with the Article 8 rights of the appellant and his family, such that extradition should be barred. Mr Summers also relied upon the fact that the appellant could be tried in the UK for the offences relating to the first four items in paragraph 9 of the Indictment. He did not rely expressly on the “forum bar” provisions of section 83A of the EA, but submitted that they could be taken into account in the Article 8 argument.

[34]For the Government, Mr Alex Bailin QC submitted, in relation to the “dual criminality” ground, that the “essential” conduct alleged in the extradition request documents would make out an offence of conspiracy to defraud under English law, even if the actual export of the last 5 items in paragraph 9 was lawful. He submitted that a conspiracy to defraud would be established under English law if it were proved that there was an agreement to deceive a person responsible for a public duty into doing something that he would not have done but for the deceit, or vice versa: see the speech of Lord Radcliffe in Welham at 125, with whom the other law lords agreed. So long as there is an agreement to deceive or mislead, the fact that the export itself would be lawful did not stop it being a conspiracy to defraud. He relied on Board of Trade v Owen

[1957] AC 602

at 622 per Lord Tucker, with whom the other law lords agreed and R v Evans (Eric)

[2014] 1 WLR 2817

at [28]-[48] per Hickinbottom J. The “essence of the conduct” alleged in the request documents was the agreement deliberately to make misrepresentations to US government officials about the true nature of what was going on with the goods in question. The “conduct” has to be taken as a whole. This case is similar to that of Tappin v Government of the USA

[2012] EWHC 22 (Admin)

especially at [46] and R(Ashan) v DPP

[2008] EWHC 666 (Admin)

at [93].

[35]On the Article 8 ground, Mr Bailin submitted that the DJ drew the correct conclusion on the facts. First, the unsealing of the Indictment was in accordance with US law and practice. Secondly, any effect that the unsealing had on the appellant’s family in Syria has now occurred; that could have no further effect. Thirdly, the argument that further reprisals against the appellant’s family in Syria might now be suspended but would then re-errupt if the appellant was extradited was speculative and there was no evidence of any causal link between the two. Fourthly, if forum is relevant to the Article 8 ground at all, the DJ was correct to conclude that the statutory considerations are overwhelmingly in favour of extradition.

[36]In so far as an “abuse of process” argument was being advanced independently, Mr Bailin submitted that this case was very different from McKinnon. There was no unlawful action or undue pressure involved. There is no “multiplicity” in the Indictment. Moreover, any inaccurate and distorted press reports cannot be laid at the door of the US government.

Ground One: dual criminality

[37]The law is settled. The “essential conduct” must be analysed to see if it constitutes an offence under English law. The “essential conduct” that is alleged against the appellant as set out in the Indictment is, first, that there was an agreement between the three defendants. This agreement was to acquire US origin goods for supply to Syrian customers; to conceal from the US suppliers of the goods that the US origin goods were destined for Syrian end-users; to make a financial gain for themselves and also to evade regulations, prohibitions and licensing requirements for export from the USA to Syria. Secondly, there were “overt acts” in relation to each of the nine items set out in paragraph 9 of the Indictment. Paragraph 45 of Mr Hinkley’s affidavit in support of the extradition request states that the three conspirators: “falsified the value and the true destination of the items being exported, thereby causing third party shippers to file false Shipper’s Export Declarations in some cases; and in other cases, not to file a Shipper’s Export Declaration at all as required by law and regulation”.

[38]As already noted, Mr Summers accepts that if there is dual criminality for the final 5 items in paragraph 9 of the Indictment in respect of count 1 on the Indictment, then there will be dual criminality in respect of all other counts relevant to those 5 items. This concession is rightly made. All the conduct is very closely related to the same criminal enterprise constituted by the fundamental allegation that there was a criminal conspiracy. Thus the only issue is whether the essential conduct alleged would constitute a conspiracy to defraud under English law in respect of the final 5 items in paragraph 9 of the Indictment.

[39]In our view it does so. On the allegations made there was an agreement dishonestly to deceive both the exporting companies and, thereby, the US government departments and officials. Either licences were issued on the basis of false information supplied by the exporting companies, or no licences were sought at all because the facts, as portrayed by the defendants, did not require a licence. In either case the reason why licences were granted or no licences were sought is because the exporting companies involved and so the US authorities had been deliberately deceived as to the true state of affairs by the defendants’ actions pursuant to their agreement. If US government departments and officials had known the true state of affairs either (at the least) a licence would have been required or, more probably, there would have been an outright prohibition on export. In each case this was done with the aim of obtaining profit for those involved but also with the aim of deceiving US government departments and officials about the true nature of what was going on so as to avoid their intervention and prohibition.

[40]In Wai Yu-Tsang v The Queen

[1992] 1 AC 269

, Lord Goff of Chieveley, giving the advice of the Board, reviewed the cases on the meaning of “intent to defraud” and conspiracy to defraud. He stated, at 276F, that an “intent to defraud” means, in broad terms, “simply an intention to practice a fraud on another or an intention to act to the prejudice of another man’s right”. Lord Goff considered that this broad description applied equally to conspiracy to defraud. As Lord Goff put it at 279H to 280A: “The question whether particular facts reveal a conspiracy to defraud depends upon what the conspirators have dishonestly agreed to do and in particular whether they have agreed to practice a fraud on somebody”.

[41]That analysis was, effectively, applied in the extradition context in Tappin. It applies in this case. If the appellant had agreed with others to give misleading information to exporting companies in the UK with the intent that they, in turn, should provide misleading information to UK authorities for the purposes of export, then the fact that the export itself was lawful is not to the point. The intent was to practice a fraud on both the exporters and the authorities as to what was going on and to make them act in a way than they otherwise would. In the case of the authorities, the intent was that they should act in a manner that was contrary to their public duty. Just as price-fixing was not (at the time) an offence in Norris, but price-fixing plus deliberate misrepresentations could amount to a conspiracy to defraud, here the export might not be prohibited under English law, but export coupled with deliberate misrepresentations, aimed at UK authorities, would be a conspiracy to defraud.

[42]Therefore we reject this ground of appeal.

Ground two: Article 8

[43]As a result of the decision of this court in Polish Judicial Authorities v Celinski and others

[2015] EWHC 1274 (Admin)

it is clear that an appeal on Article 8 grounds will only be allowed if the DJ “made the wrong decision”: see [24] of the Lord Chief Justice’s judgment. It is the outcome which counts: was it right or wrong? The DJ’s findings of fact must ordinarily be respected. New facts might have intervened by the time of the appeal. On authority, the court will usually only take those into account if they could not have been adduced in the court below, and (in Article 8 cases but not others where the threshold is higher), they are sufficiently weighty to be relevant to the balance that has to be struck between the public interest in honouring extradition arrangements and countervailing considerations.

[44]In this case there is one new and very sad fact to add to those considered by the DJ: the murder of the appellant’s cousin in Syria. We have that fact very much in mind. But even if that is brought into the balance, we are unable to accept the argument that the decision of the DJ on the Article 8 ground was wrong. The facts found by the DJ cannot be challenged. He conducted a balancing exercise. In our judgment the DJ was correct to state that the “unsealing” of the Indictment and its effects on the appellant’s family in Syria are past matters; they have no relevance to the effect of future extradition on the appellant’s Article 8 rights and those of his family in Syria. We agree with Mr Bailin’s submissions that there is no cogent evidence that the fact of the appellant’s extradition would have any consequences for the appellant’s family in Syria. That is speculation.

[45]The “unsealing” of the Indictment cannot constitute an “abuse of the process” of this court. It was in accordance with US law and practice. There was nothing unlawful in the process. We accept the DJ’s finding that the process was not intended to break the appellant’s will. The facts of this case are miles away from constituting conduct so “unconscionable as to constitute an abuse of the process justifying the requested state’s refusal to extradite” The wording of Lord Brown of Eaton-under-Heywood at [41] of McKinnon v Government of the USA

[2008] 1 WLR 1739

. the appellant. Even if the conduct of the US authorities has, as the DJ found, caused real problems for the Diri family in Syria, that fact cannot be added into the Article 8 balance, using the “abuse of process” spoon, as it were.

[46]As for the submission that the appellant could be tried in the UK in respect of the first four items of the list in paragraph 9 of the Indictment, this is an attempt to use the “forum bar” spoon to add further weight in the appellant’s favour when considering the Article 8 balance. In our judgment this cannot be done. In Norris v Government of the USA (No 2)

[2010] 2 AC 487

, Lord Phillips of Worth Matravers commented, at [67], (in the context of an Article 8 argument), that extradition proceedings should “not become the occasion for a debate about the most convenient forum for criminal proceedings”. He considered that the possibility of bringing criminal proceedings in the UK would only rarely be capable of tipping the scales against extradition in accordance with the UK’s treaty obligations. Further, Lord Phillips stated that “unless the judge thought that the scales are finely balanced he should not enter into an enquiry as to the possibility of prosecution in this country”: see [67]. He emphasised the point again at [87] where he said that rarely, if ever, will the fact of a possible prosecution in this jurisdiction be likely, in practice, to “tilt the scales against extradition”. Lord Collins of Mapesbury added, at [131], that the fact that a prosecution could be brought in this country would not normally be a relevant Article 8 factor.

[47]Since then the EA has been amended, by the Crime and Courts Act 2013 Schedule 20(1) paragraph 6 which added section 83A to the EA with effect from 14 October 2013. This so-called “forum bar” to extradition to category 2 territories provides that the extradition of a person will be barred if it would not be “in the interests of justice”, as defined in that section. In Singh v France

[2014] EWHC 4066 (Admin)

this court expressed the provisional view, in relation to the equivalent provision in Part 1 of the EA, viz section 19B, that “forum” cannot now normally be a relevant factor for Article 8 purposes for the purposes of an “accusation” European Arrest Warrant to which section 19B applies. This is because the statutory scheme now specifically provides for “forum” to be a separate bar, so that it is not logical to introduce it once again under Article 8. . Even if, technically, it is possible to do so, then we would apply the same test as applied by Lord Phillips in Norris, viz. the possibility of a prosecution for the extradition offence in the UK should only to be considered by the judge on an issue of proportionality under Article 8 if the judge reaches the conclusion that all the other Article 8 factors are finely balanced. That is not the position on the facts of this case.

[48]Therefore the Article 8 ground must be rejected also.

Disposal

[49]Having rejected both grounds of opposition to extradition, the appeal must be dismissed and the DJ’s order for extradition confirmed. Appendix: Items controlled by the Commerce Department and the Export Administration Regulations for export purposes (a). Draeger Safety Multi-IMS Analyzer Kit. The Draeger Multi-IMS was a portable multi-gas scanner used for the detention of chemical warfare agents. Nerve, blood and lung warfare agents could be detected through the use of a highly sensitive ion mobility spectrometer. Draeger Multi-IMS were used for civil defense and protection, military, police and border control purposes. (b). ChemPro100 Handheld Chemical Detector. The ChemPro100 was a handheld detector for the field detection and classification of Chemical Warfare Agents (CWAs) and selected Toxic Industrial Chemicals (TICs). The ChemPro100 could be loaded with many different lists of CWAs and TIC called libraries. Some libraries included CWAs such as nerve, blister, blood, choking agents and precursors. (c). Draeger X-am-7000. The Draeger X-am-7000 is a non-radioactive IMS detection source with three modes of operation, CW – for the detection of chemical warfare agents, TIC – for the detection of toxic industrial chemicals, Survey – for detection of residual persistent contamination following decontamination. The unit detects, identifies, and warns first responders of chemical agent threats at levels below attack concentration. The chemical agents detected include nerve, blood, blister, choking and a wide range of toxic industrial chemicals. The X-am-7000 can be used in a wide variety on civilian laboratory, research, public safety (first responder) and industrial environments. (d). EPDM Polycarb masks. This mask was a panoramic rubber mask designed to perform in a wide of applications for industry and for use in civil defense against ammonia, methylamine, DMMP (surrogate for sarin) and hydrogen cyanide. (e). Hanna Instruments HI 2215-01 Hanna Meter. The Hanna meter was used to measure chemicals and their composition. (f). Agilant, ADM 1000 Gas Flowmeter. ADM flowmeters were used for measuring gas streams with a changing gas composition. ADM flowmeters are battery powered and field portable. The ADM flowmeter was capable of highly accurate and reliable measurement of common carrier and fuel gases, including nitrogen, air, carbon dioxide, hydrogen, helium, and argon/methane. (g). High Volume Magnetic Stirrers Model C-MAG HS 7 and 10. The stirrer was a high volume magnetic stirrer designed for larger capacity applications capable of stirring 25 liters. The stirrer was used for mixing, heating, combining, and testing numerous liquid chemical compounds. (h). Allison transmission. Allison Transmission models were large industrial engines for use in heavy oil and gas field operations. They are used in many types of heavy duty industrial equipment and large trucks like the XJ250P Rig. This area of work requires the need for a large transmission with durability in harsh weather and work environments with the required horsepower and machine quality that can be utilized for long periods of time with reasonable assurance that the transmission can stand up to the pressure. The Allison Transmission can be used for both vehicle propulsion and for drilling, setting oil pipes or for pump operation that normally occur in oil and has working environment operations. (i). Dynalog Electronics Limited C-Scan 2000. The C-Scan 2000 was used to accurately locate buried pipeline and display its position and depth. The unit could be utilized through pipelines under roads, concrete, sand, mud, growing crops, and ice or water courses. The unit displayed the average condition of the wrap or coating between any two locations, pinpointed individual wrap or coating faults for excavation and repair stores, and analyzed all survey data and printed out comprehensive reports, plots and maps utilizing the GPS interface (integrated in model 2010 – external unit required with model 2000), and using proprietary software, it can download all data to a computer for further analysis and comparisons.