Court of Appeal High Court

The Law

Extradition between the UK and the USA is governed by Part 2 of the 2003 Act as the USA is a Category 2 territory for the purposes of the Act. Under s. 83A, extradition is barred by reason of forum if the extradition would not be in the interests of justice. The bar operates if a substantial measure of D’s relevant activity was performed in the UK, and the judge decides extradition is not in the interests of justice. Factors to be taken into account are set out in s. 83A(3) and include the place where most of the harm occurred, the desirability and practicability of all the offences being heard in one jurisdiction taking into account the location of witnesses and the practicality of their evidence being heard in a particular jurisdiction. The judge must also consider the Defendant’s connection with the UK. Issues of disclosure must be taken into account along with any certificate issued by a prosecutor. The certificate may verify that the prosecutor has decided that there are domestic offences corresponding to the extradition offence and they have either (a) certified that he has made a formal decision that the Defendant should not be prosecuted for the corresponding domestic offences because he believes that there would be insufficient admissible evidence for a prosecution or (b) that prosecution would not be in the public interest or (c) that there are concerns about the disclosure of sensitive material in the prosecution. A further bar to extradition is found in s. 91 of the 2003 Act, which states that the judge must discharge the Requested Person if he is satisfied that the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him.

Decision of the Westminster Magistrates’ Court

Counsel for Love argued against extradition in the magistrates’ court on the basis that the offence was wholly committed in the UK and should therefore be prosecuted in the UK. In particular, it was noted that Love depended on the support of his parents (his only family members) and suffered from Autism Spectrum Disorder (ASD), depression, asthma and eczema. Professionals gave evidence that his risk of suicide if extradited to the USA was severe. Prosecutors on behalf of the USA argued that all of the harm occurred in the USA, the victims of the crimes (both the companies and government departments that had been hacked and the individuals who had their personal data stolen) were in the USA. The CPS expressed no formal views about the appropriateness of commencing proceedings in the UK. The prosecutor also argued that it would be ‘substantially difficult to make available to the United Kingdom all of the evidence necessary to prosecute Love, particularly the witnesses the United States anticipates calling at trial’ (at [17]).

The district judge accepted that a substantial measure of Mr Love’s relevant activity was performed in the UK, as the offences had been entirely committed at his home address but that all of the harm had occurred in the USA. The district judge did not accept the evidence that Mr Love’s mental health may deteriorate on extradition to the point that he would no longer be fit to stand trial as this was conjecture and therefore the interests of the victims were best met through extradition. The judge concluded that ‘none of the victims of Love’s alleged crimes have an interest in this matter being prosecuted in the United Kingdom’ (at [17]). The judge also concluded that the absence of a prosecutor’s certificate detailing a formal decision that the offences could not be prosecuted in the UK added nothing to the decision under the interests of justice test and therefore this fact was neutral.

In relation to the Defendant’s connection with the UK, the district judge accepted that this encompassed consideration of his personal circumstances, which included his health and personal support network, but this did not outweigh the fact that the offence occurred in the USA, all of the victims were in the USA and their interests were served by extradition. As such the factors favouring trial in the UK did not outweigh the factors supporting extradition, and it was therefore in the interests of justice for the case to be tried in the USA and the forum bar failed.

Decision of the High Court

The principal issues before the court were:

whether the judge was wrong to hold that the forum bar in section 83A of the 2003 Act, introduced by the Crime and Courts Act 2013, did not prevent Mr Love’s extradition;

Forum bar

The High Court confirmed that s. 83A provides a new and distinct safeguard for requested persons. Its underlying aim is to prevent extradition where the offences can be fairly and effectively tried in the UK, and it is not in the interests of justice that the requested person should be extradited. The correct approach to appeal of an extradition decision is whether the decision of the district judge is wrong which in effect is the same test given in the case of Celinski [2015] EWHC 1274. This is important as it allows the court to stand back and conclude that a ‘question ought to have been decided differently because the overall evaluation was wrong: crucial factors should have been weighed so significantly differently as to make the decision wrong, such that the appeal in consequence should be allowed’ (at [26]).

In detailing the findings of the lower court, the High Court came to several different conclusions in relation to the factors taken into account when weighing whether extradition was in the interests of justice. Firstly, the court considered that the approach to the interests of any victims should have given greater weight to the risk that an exacerbation of Love’s symptoms caused by the stress of extradition could lead to him become unfit to plead or to stand trial. Secondly, the court viewed the absence of any asserted belief of a prosecutor that the UK is not the most appropriate jurisdiction as a factor which should have been seen as modestly in Mr Love’s favour as opposed to neutral. Thirdly, in relation to the availability of evidence for a prosecution in the UK, the court found that the witnesses which would need to be relied on, although all from the USA, did not fall into any particularly sensitive category of witness, such as the victim of violence or a prisoner. Whilst there would be inconvenience in launching such a prosecution, this would not preclude a successful prosecution and witnesses could give evidence via video link and evidence could be shared digitally.

The court agreed with the district judge’s interpretation of s. 83A(3)(g) in that ‘connection to the United Kingdom’ should be widely construed without replicating the full scope of Article 8 of ECHR. The court drew a parallel with the notion of family and local ties for the purposes of bail decisions and noted that this could cover family ties, their nature and strength, employment and studies, property, duration and status of residence and nationality. The risk of suicide on extradition and the deterioration of health would not normally be relevant but could evidence the strength of family ties. The assertion on behalf of Love that prosecutorial practice in other hacking cases and/or the possibility of prosecution in the UK were relevant under (g) was rejected.

The court held that taking into account all of the above factors favouring extradition outweighed those favouring against extradition sufficiently to persuade the court that the district judge was wrong. However, the court did reject the submission made on behalf of Liberty that s. 83A required the domestic prosecutor ‘actively to engage with the issue of forum’ (at [45]) and they should either express a ‘sufficient prosecutor’s belief, or join the proceedings or issue a prosecutor’s certificate’ (at [52]). The court referred affirmatively to the decision in Shaw [2014] EWHC 4654 (Admin) that it is ultimately for the judge to weigh up evidence before it, but it should only be considering ‘a belief expressed for the purposes of the forum decision, by a properly authorised prosecutor who knows what the expression of belief is to be used for’ (at [54]). There is no power for a judge to require a forum decision from prosecutors.

Oppression

In the magistrates’ court oppression under s. 91(2) of the 2003 Act was considered alongside Article 3 of ECHR concerns. The High Court outlined the evidence relating to Love’s health and mental well-being in great detail and came to the ‘conclusion that Mr Love’s extradition would be oppressive by reason of his physical and mental condition’ (at [115]). Whilst the district judge had considered whether measures would be in place to counter the risk of suicide, she had not considered whether those measures would themselves be likely to have a seriously adverse effect on his very vulnerable and unstable mental and physical well-being. In the light of the conclusions the court came to, it did not go on to consider Article 3 and Article 8 of ECHR specifically.

In summary, the High Court found the interests of justice warranted activating the forum bar as the initial decision underplayed the real, albeit less convenient, prospect of shifting the trial to the UK to ensure Love’s mental and physical ill-health would not compromise the completion of any trial held in the USA. This is the first time the forum bar has been successfully used. Section 83A was inserted into the 2003 Act by the Crime and Courts Act 2013 following the refusal by the then Home Secretary to order the extradition of Gary McKinnon to the USA and came into force on 14 October 2013. Gary McKinnon was similarly sought by the USA for computer hacking-related offences and also had a clinical diagnosis of ASD, which significantly heightened his risk of suicide. The High Court in the case of McKinnon rejected the common law precursor to the forum bar test, emphasising that location of the harm was the most appropriate forum for a trial. Therese May, the then Home Secretary disagreed with this decision and concluded that Mr McKinnon’s extradition would give rise to such a high risk of him ending his life that a decision to extradite would be incompatible with Mr McKinnon’s human rights and announced the creation of the new forum bar (Statement made on 16 October 2012 by Home Secretary Theresa May on extradition case of Gary McKinnon).

Both the cases of Love and McKinnon involved crimes with concurrent jurisdiction enabling prosecution at both the source (the UK) and location of harm (the USA). Both had never entered the jurisdiction where the harm occurred and both cases were publicly divisive generating online campaigns to prevent extradition. The High Court ruling in Love was reported in the press with headlines such as ‘Lauri Love ruling sets precedent for trying hacking suspects in the UK’ (The Guardian, Monday 15 February 2018). However, careful analysis of the case reveals that these sorts of headlines were not justified.

The introduction of s. 83A after the case of McKinnon and the High Court judgment in Love does demonstrate a shift away from focusing on the location of the harm underpinning the extradition offence to a more defence-centric approach, which places the potential for forum shifting to protect genuine human rights concerns at the forefront of the court’s considerations. However, Love is not precedent for ‘trying hacking suspects in the UK’. The judgment makes it clear that all of the factors listed in s. 83A must be taken into account, and the place where most of the harm or loss took place would usually be a very weighty factor. For both Love and McKinnon, their mental and physical illnesses and high risk of suicide were key to the decisions not to extradite. However, the judgment does suggest that prosecutors will need to focus to a greater extent than they previously have on a suspect’s connection to the UK in cases where concurrent jurisdiction arises bearing in mind the wide interpretation this has been given. Similarly, the Crown Prosecution Service will need to have thought through clearly how they decide who should prosecute cases of concurrent jurisdiction before the extradition proceedings are heard and consider whether a forum decision is appropriate.

The judgment noted that a key plank of Love’s argument was that he should be prosecuted in the UK and ‘the [Crown Prosecution Service] must now bend its endeavours to his prosecution with the assistance to be expected from the authorities in the USA, recognising the gravity of the allegations in this case and the harm done to the victims’ (at [126]). The ultimate fate of Lauri Love is therefore still to be decided.