Reverend Love, father of alleged hacker Lauri, 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 last week’s High Court decision preventing Love’s extradition to the US (see news, p6), the CPS may be the prosecutorial body to play that tune.
Love was the first high-profile case to properly test the effectiveness of the forum bar. It was introduced into legislation following the 2012 decision of then home secretary Theresa May to block the extradition to the US of alleged hacker and Asperger’s sufferer Gary McKinnon. Since 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. Consequently, the forum bar is seen as toothless. That perception may now change.
An earlier forum bar, introduced in 2006, followed the campaigning of David Bermingham of the ‘NatWest Three’. Bermingham and his co-accused were extradited to the US after they had argued that they should be prosecuted in the UK for conduct that took place here. The courts disagreed, but their fight created impetus for the forum bar. Although it was not implemented, high-profile cases kept the debate alive.
The refusal to order McKinnon’s extradition followed a media campaign demanding that British nationals accused of crimes abroad should be tried here. The cases of Christopher Tappin and Richard O’Dwyer followed. Controversially, the UK has no discretion to refuse extradition requests based on British nationality, provoking accusations that the UK ‘outsources’ its justice system to the demands of overzealous US prosecutors.
The forum bar introduced in 2013 aims to prevent extradition where alleged offences can be ‘fairly and effectively’ tried in the UK and that it would not be in the interests of justice to allow extradition having regard to proscriptive specified matters.
In the case of Love, the judge at first instance ruled that it was in the interests of justice for Love to be tried in the US. The appellate court disagreed. What was persuasive in deciding that the first instance judge was wrong was the connection that Love had with his family; his medical conditions (Asperger’s syndrome and unstable mental health leading to a high suicide risk); the treatment he requires; and the care and stability his parents provide. The court found that these factors could not be provided for in the US and that extradition would be oppressive to his mental health. Acknowledging that Love’s connections did not constitute an ‘overwhelming case’, they were nevertheless factors to consider in determining whether they outweighed the arguments for 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 was invited by the intervenor Liberty to ‘consider carefully whether the operation of the forum bar is working as envisaged’. The 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 NatWest Three or 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 now turns to Love’s prosecution here, something his lawyers have argued for since his arrest. Edward Fitzgerald QC told the appellate court that he did not seek impunity for Love’s alleged acts, accepting that he should be tried here. The High Court judgment confirmed that it would not be oppressive for Love to be prosecuted in England and that those who successfully argue the forum bar should expect to be prosecuted domestically. It did not follow for McKinnon; Love will now be eager to share the same fate.
Edward Grange is a partner at Corker Binning