On 16 September 2016 District Judge Nina Tempia at Westminster Magistrates' Court ruled that Lauri Love should be extradited to the USA to face multiple allegations of hacking of government computer systems. Love's legal team had argued that he should be tried in the UK for his alleged crimes and that his depression and Asperger's syndrome meant that he should not be extradited to the USA to stand trial. His case will now be passed to the Home Secretary for the final decision in respect of his extradition.
Nearly 4 years ago the then Home Secretary Theresa May blocked the extradition of another British hacker to the USA in similar circumstances. Like Love, Gary McKinnon was diagnosed with Asperger's Syndrome. On 16 October 2012, Theresa May announced to the House of Commons that the extradition had been blocked. The CPS subsequently announced that McKinnon would not be prosecuted in the UK, because of the difficulties involved in bringing a case against him when the evidence was in the USA.
Love's case, which bore several similarities to McKinnon's, was considered by many to be the first substantive test of the "forum bar", which was introduced by Theresa May after the McKinnon case to allow courts to block extradition if it is in the interests of justice to have a person tried in Britain instead. Love's legal team have indicated that they intend to appeal the decision.
The forum bar allows a court to bar extradition where a substantial measure of the requested person's conduct was performed in the UK and where it is in the interests of justice to do so.
In deciding whether it would be in the "interests of justice" to bar extradition the court is limited to considering the following matters:
- The place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur.
- The interests of any victims.
- The belief of the UK prosecutor that the UK is not the most appropriate jurisdiction to prosecute the requested person.
- Whether the necessary evidence is or could be made available in the UK.
- Any delay that might result from proceeding in one jurisdiction rather than another.
- The desirability and practicability of all prosecutions relating to the extradition offence taking place in one jurisdiction, having particular regard to the jurisdictions in which witnesses, co-defendants and other suspects are located, and the practicability of such persons giving evidence in the UK or in outside jurisdictions.
- The requested person's connections with the UK.
- Whether the relevant authorities in the UK have decided not to take proceedings against the person in respect of the relevant conduct.
The efficacy of the forum bar is tempered by the concept of a "prosecutor's certificate". This allows the UK authorities to issue a certificate that effectively vetoes a judge from barring extradition on forum grounds. Prosecutors can issue such a certificate if they formally decide that a prosecution should not be brought in the UK because either:
- there is insufficient admissible evidence or it would not be in the public interest to do so; or
- there are concerns about the disclosure of sensitive material (such as material relating to national security or international relations).
Such a certificate can only be challenged as part of an appeal to the High Court.
It is important to note that Theresa May's reforms also significantly narrowed the Home Secretary's ability to intervene in such highly charged cases. The power that Theresa May used to block McKinnon's extradition no longer rests with the Home Secretary. Human Rights arguments that arise after a decision to extradite has been made must now be raised with the courts.
Extradition to the United States is dealt with under Part 2 of the Extradition Act 2003. Unlike in European Arrest Warrant Cases (where the decision to extradite lies exclusively with the court) the Home Secretary is still required to take the final decision to extradite. A requested person may make written representations to the Home Secretary in advance of her decision. However, her powers are strictly limited under the Act.
Extradition is prohibited by statute if:
- the person could face the death penalty (unless the Home Secretary gets adequate written assurances that the death penalty will not be imposed or, if imposed, will not be carried out)
- there are no specialty arrangements with the requesting country - 'specialty' requires that the person must be dealt with in the requesting state only for the offences for which they have been extradited (except in certain limited circumstances)
- the person has already been extradited to the UK from a third state or transferred from the International Criminal Court and consent for onward extradition is required from that third state or that Court (unless the Home Secretary has received consent)
If none of these prohibitions apply, the Home Secretary must order extradition. Or, if surrender is prohibited, the person must be discharged.
Gherson have experience in successfully resisting extradition to the United States. If you require advice please do not hesitate to contact us.