This client alert considers the recent ruling allowing the extradition of a man from the UK to the US on charges relating to infringement of US extra-territorial export controls.

It is clear from this case that individuals can still be extradited to the US in connection with breaches of extra-territorial US re-export controls even though there are no equivalent re-export controls under EU and UK laws.  Instead, the focus is on the conduct, rather than on the nature of the offence charged or on the constituent elements of the offence charged, for the purposes of extradition.  Thus the fact that there was no breach of EU or UK export controls was irrelevant as to whether Mr Tappin could be extradited: the conduct complained of would, if it had occurred in the UK, amount to the offence of conspiracy to defraud which is punishable for a term of 12 months or more and this was therefore sufficient to extradite him.

Thus, the real message is that individuals are at risk of extradition if they engage in conduct which would amount to any offence in the UK if it had occurred here and if it is punishable with a term of imprisonment of 12 months or more: in considering whether the conduct complained of may amount to an offence under UK law, it is not sufficient just to look at EU and UK export controls, but a broader analysis needs to be undertaken to establish whether it could amount to any type of offence under UK law.  Money laundering, conspiracy to defraud, obstruction of justice and fiscal offences are just some of the offences that are being used in the prosecutors' armoury in circumstances where there are technical or evidential difficulties with charging the accused with more obvious substantive offences, such as export control violations.

Background

On 13 January 2012, the High Court ruled that Christopher Tappin, a UK national, could be extradited to the US to face charges relating to alleged breaches of US export controls.  He was refused permission to appeal this ruling to the UK Supreme Court, and a request for the European Court of Human Rights to suspend the extradition pending further appeal also failed on 13 February 2012.  Mr Tappin was extradited on Friday 24 February, and could face a significant jail term in the US.

Appeal against Extradition

Mr Tappin is alleged to have been involved, through the freight forwarding company he owned and ran, in the illegal export of batteries for use in US Hawk air defence missiles and certain licensable technology to Iran.  This activity was investigated through a shell company set up by US Immigration and Customs Enforcement ("ICE"), which posed as a potential supplier of the items in question to Mr Tappin's client (who cooperated with ICE, unknown to Mr Tappin, after being arrested).

The key issue raised on appealing the extradition order was the principle of dual criminality: i.e., for the extradition request to be granted, it had to be shown that Mr Tappin's conduct would have constituted an offence under UK law.

In determining this, it was found not to be necessary to consider the specific elements of the offence charged under US law. Therefore, the fact that as freight forwarder (rather than exporter) Mr Tappin would not be responsible for obtaining the required licence in the US would not be taken into account.

Notably, the judgment also stated that it would be "irrelevant" whether or not the substantive export of these specific batteries to Iran – as opposed to military equipment controlled under the applicable UK controls – would have been an offence under UK law. No conclusion was reached as to whether this was in fact the case. This illustrates that it is not necessary for the offence charged under US law to be directly mirrored by a UK offence, as long as the conduct in question still constitutes an offence of some sort in the UK.  The US authorities had charged Mr Tappin with offences of conspiring and attempting to export controlled items to Iran without the required licence under US law.  The Court felt that there was enough evidence put before it to extradite Mr Tappin, on the basis that his conduct would have been sufficient under UK law to constitute an offence of conspiracy to defraud the US customs authorities.

This reflects the approach taken by prosecutors in other areas, such as the high-profile extradition of Ian Norris to the US in 2010 on charges of obstructing justice in relation to what was substantively a competition cartel investigation.

Mr Tappin also argued more generally that it would be oppressive to extradite him, given the time delay between the alleged conduct and the extradition request, and that extradition would be a breach of his rights under the European Convention on Human Rights.  It is clear from both this case and others that an argument based on oppression is a very high threshold for an accused to overcome, and cogent evidence will be required to demonstrate that extradition would be oppressive as a result of delay or otherwise.  In this case, Mr Tappin was unable to overcome this threshold and all his arguments were ultimately rejected.

Conclusion

This case serves as an important reminder of the broad scope and application of US export control and sanctions measures, and that the risk of extradition for violations should not be ignored. Sensitivity in this area will continue to be heightened given the increasing political tensions with Iran and other regimes in the region.

Other types of possible individual penalty for infringing export control rules, such as fines, director disqualification and prison sentences have all been imposed in other UK enforcement actions for export control breaches.  Extradition is now clearly also a very real possibility, and further emphasises the need for individuals and organisations to ensure full compliance with all applicable export control and sanctions measures.