Will Love change everything? Extradition and the forum bar

Reverend Alexander Love, father of Lauri Love, was quoted as saying that his son had to face the music for his actions, but that it should be to the tune of a British band. Following the decision of the High Court on 5 February 2017 to find in Lauri Love’s favour – and specifically to prevent his extradition to the USA by reason of “forum” — it is possible that it will be the Crown Prosecution Service rather than the US Department of Justice that put him on trial.

Love was accused in three indictments of carrying out a series of cyber-attacks on the computer networks of private companies and US Government agencies (including the US Federal Reserve, US Army, US Department of Defence and NASA) in order to steal and then publically disseminate confidential information found on those networks.

Love was the first high profile case to properly test the effectiveness of the forum bar to extradition that was introduced into legislation following Theresa May’s decision in October 2012, when she was Home Secretary, to block the extradition to the USA of alleged hacker and Asperger’s sufferer Gary McKinnon. Since its coming into force in 2013, all have failed in their attempts to argue that, by reason of forum, extradition would not be in the interests of justice. As a result, the impact of the forum bar has been seen by many as illusory in its effect. That perception may now begin to change.

An earlier version of the forum bar was first introduced into English extradition law in 2006 following the vociferous campaigning of David Bermingham of the “NatWest Three”. Bermingham, together with Gary Mulgrew and Giles Darby, were extradited to the USA following a lengthy extradition battle wherein they argued that they should be prosecuted in the UK for conduct said to have taken place here. The Courts disagreed and they were eventually extradited to the USA to stand trial on several counts of wire fraud. Their fight was not entirely in vain, however, as it created the impetus for the earlier version of the forum bar. Whilst introduced into the Extradition Act 2003 in 2006, this forum bar was never brought into force.

During the period in which this forum bar sat moribund, a string of high-profile cases kept the debate about forum in the political spotlight. The refusal to order the extradition of Gary McKinnon to the US had followed a noisy media campaign that demanded that British nationals accused of crimes abroad should be tried in the UK. The cases of Christopher Tappin and Richard O’Dwyer soon followed.

Controversially, the UK, unlike a number of other jurisdictions, has no discretion to refuse an extradition request based on the individual being a British citizen. This has led to many accusing the UK of ‘outsourcing’ its justice system, particularly to the demands of over-zealous US prosecutors. The forum bar in its current guise came into force in 2013 and sought to remedy this problem.

Unlike its predecessor, the forum bar of 2013 was cast in far more elaborate form. Its fundamental aim is to prevent extradition from taking place where the offences alleged in an extradition request can be ‘fairly and effectively’ tried in the UK and that it would not be in the interests of justice for extradition to take place. In order for extradition not to be in the interests of justice, a judge must decide that a substantial measure of an individual’s activity was performed in the UK and determines that the outcome of seven specified matters weigh in favour of an individual not being extradited. Those specified matters are:

1. The place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur;
2. the interests of any victims of the extradition offence;
3. any belief of a prosecutor that the United Kingdom, or a particular part of the United Kingdom, is not the most appropriate jurisdiction in which to prosecute the individual in respect of the conduct constituting the extradition offence;
4. were the individual to be prosecuted in part of the United Kingdom for an offence that corresponds to the extradition offences, whether evidence is necessary to prove the offence is or could be made available in the United Kingdom;
5. any delay that might result from proceeding in one jurisdiction rather than another;
6. the desirability and practicability of all prosecutions relating to the extradition offence taking place in one jurisdiction, having regard (in particular) to –
   1. the jurisdictions in which witnesses, co-defendants and other suspects are located, and
   2. the practicability of the evidence of such persons being given in the United Kingdom or in jurisdictions outside the United Kingdom;
7. the individual’s connections with the United Kingdom.

In relation to Love, the judge at first instance, having examined the above criteria, ruled that ‘it is in the interests of justice for the case to be tried in the United States and for this reason the forum bar fails.’ The appellate court disagreed and made its observations clear at paragraphs 42-44 of their judgment. They concluded that the fact that Love was a British national, long resident in the UK with a girlfriend and engaged in studies would not of themselves have been factors that would have persuaded them that the decision of the first instance judge was wrong. What was considered to be persuasive was the particular strength of the connection that Love had with his family; the home circumstances to which he was exposed by virtue of his medical conditions (Asperger’s Syndrome, vulnerable and unstable mental health leading to a high risk of suicide); the care and treatment he requires; and the care and stability that his parents provided. The court found that these factors could not be provided for in the US – factors that also contributed to their conclusion that Love’s extradition would be oppressive by reason of his mental health. Whilst acknowledging that Love’s connections did not make for an ‘overwhelming case’ they were factors that the court was entitled to take into account in determining whether they outweighed the factors said to favour extradition. In Love’s case, they did.

Despite Love’s success, the practical protection the forum bar affords to British nationals should still be regarded as largely illusory. The High Court were invited by the intervenor Liberty to ‘consider carefully whether the operation of the forum bar is working as envisaged’. The High Court refused to engage in this and stated that ‘it is not for this court to express a view on whether the operation of the Act according to its terms has met the aspirations of all those who have expressed views about what form the legislation should take’. It would take an exceptional case to emulate the unique facts of Love’s case. It is doubtful whether the cases of the Nat West Three or Christopher Tappin would have been decided differently had they been able to argue the forum bar. Indeed, Love’s victory may remain the only successful example of reliance on the forum bar for many years to come.

Attention will now turn to whether Love will be prosecuted in the UK for his conduct, something he and his lawyers have argued should happen since he was arrested on the US extradition request in July 2015. Indeed, his supporters had established the hashtag #TrialAtHome to highlight their cause. His barrister, Edward Fitzgerald QC, was at pains to emphasise to the appellate court that he did not seek impunity for the acts alleged against Love, and accepted that he should be tried, and if convicted, sentenced in the United Kingdom. The High Court were also at pains to point out in the concluding four paragraphs of its 127 paragraph judgment that it would not, in their opinion, be oppressive for Mr Love to be prosecuted in England for the offences alleged against him and that those who succeed on arguing the forum bar should expect a prosecution in England (where possible) to follow. The same did not follow for Gary McKinnon and it will now fall upon the Crown Prosecution Service to determine whether it is in the public interest to instigate proceedings in England against Love.

This article was published in The Law Society Gazette, which can be accessed here.