According to the indictment, the allegations took place “within the Eastern District of New York and elsewhere”, therefore, potentially across multiple jurisdictions.
This leads to the interesting question: can a country extradite an individual for conduct having an alleged demonstrable effect in that country’s territory, but conduct which the individual is alleged to have committed whilst not in that country?
Extradition from the UK and the forum bar – redressing the imbalance?
In the UK this is an issue that extradition Courts have grappled with for years. In fact, this decision process was fortified through the introduction of the forum bar in October 2012. This gave the Courts the power to refuse extradition if, in circumstances where the alleged conduct spans the country requesting extradition and the UK, the UK is the more appropriate place for the criminal case to be heard. The forum bar, therefore, provides that in determining whether extradition would be in the interests of justice, the Judge must decide whether a substantial amount of the individual’s conduct took place in the UK, and also seven specific factors. These include the place the harm occurred, the interests of any victims, any delay, the desirability of prosecution taking place in one jurisdiction, and the defendant’s ties to the UK. 
The focus of discussion both pre and post the introduction of the forum bar has mainly targeted cases where extradition is sought to the US. Indeed, the forum bar was partly introduced to address the perceived imbalance in the UK/US extradition arrangement. The issue of the US exercising extraterritorial jurisdiction (that is exerting jurisdiction against individuals who are not in the US) has recently been examined in an earlier blog discussing the potential imbalance between the US and UK jurisdictional reach for insider dealing.
Of course, as technology has increased, so has the ability of individuals to take actions with the potential to have more far-reaching international consequences. It is, therefore, of no surprise that relevant cases in this area generally concern allegations of computer offences or those of a complex financial nature, and which are alleged to have taken place through the use of complex computer systems. Indeed, perhaps the best known case, and in fact the case which assisted prompting the introduction of the forum bar, involved an individual whom the US attempted to prosecute for allegedly hacking into US computer systems, but whilst this individual was exclusively in the UK.
Has the forum bar had much use?
It was initially feared that the forum bar would have no bite, as during the first four years of its implementation there was not a single case in which it had resulted in extradition being blocked. However, it has subsequently come into its own, and been successfully deployed in various cases since.
The leading case on the forum bar is the United States v Lauri Love. In this case the approach was codified as follows: “its underlying aim is to prevent extradition where the offences can be fairly and effectively tried here, and it is not in the interests of justice that the requested person should be extradited”. In Scott v USA, Mr Scott was accused of a fraudulent scheme in connection to a currency market transaction. In fact, the Court held that although there was the potential to harm the US market, the majority of the harm suffered as a result of the conduct was suffered in the UK.
However, deployment has not always been successful, earlier in the year the extradition was ordered to the US of an individual for prosecution for alleged insider dealing offences but who was, according to the US indictment, at all times relevant to the indictment, a citizen of the UK residing in the UK.
Although proceedings have not yet concluded, Mike Lynch is currently discovering that individual alleged actions, the majority of which are alleged to have taken place in the UK, can also have far-reaching consequences in relation to allegations of fraud.
Finally – what happens if the UK has decided not to prosecute?
Part of the decision process, and one of the factors mentioned above, is any belief of a UK prosecutor that the UK is the most appropriate place for the defendant’s prosecution for the extradition offence. As such, the UK prosecutor makes a judgment as to whether the UK is the most appropriate jurisdiction where the case should be tried. Indeed. in the case of Lauri Love no view was expressed. The Crown Prosecution Service or appropriate agency will need to proactively consider this.
Finally, some of these cases involve and follow a decision taken in the UK not to prosecute in the UK. In 2017, three FX traders were extradited to the US for conspiracies to manipulate the spot market, and who had previously been subject to a Serious Fraud Office (“SFO”) investigation, which was closed. In the case of Scott, Mr Scott was also subject to an SFO investigation, which was closed.
Finally, with regards to the above-mentioned insider dealing case, this individual had been subject to a Financial Conduct Authority investigation that had been closed. Although a heavy factor in these decisions will ultimately fall on where the evidence can be found, as discussed previously, there could be said to be an imbalance in the extra-territorial reach of US and UK law in relation to specific financial crime offences. Finally, there are some that say this perhaps reflects an increased appetite of the US over the UK to take on these types of cases.
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The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.
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