All ER (D) 20 (Feb)
*Love v Government of the United States of America
 EWHC 172 (Admin)
Queen’s Bench Division (Divisional Court)
Lord Burnett CJ and Ousley J
5 February 2018
Extradition – Extradition order – Appeal
The appellant’s extradition to the United States was sought to face charges of: (i) conspiracy to access a computer without authority and to obtain information from a US department or agency; (ii) accessing a computer without authorisation and obtaining information from a US department or agency; (iii) computer hacking; (iv) two counts of aggravated identity theft; (v) conspiracy to damage a protected computer and to commit access device fraud; (vi) six counts of damaging a protected computer; and (vii) access device fraud. The judge decided to send his case to the Secretary of State for her decision whether to order his extradition. The Secretary of State subsequently ordered the appellant’s extradition. The appellant appealed against the judge’s decision.
Issues and decisions
(1) Whether the judge had been wrong to hold that the forum bar in s 83A of the Extradition Act 2003 (the EA 2003) had not prevented the appellant’s extradition.
The forum bar only arose if extradition would not be in the interests of justice. The matters relevant to an evaluation of the interests of justice for those purposes were found in s 83A(2)(b) of the EA 2003. They did not leave to the court the task of some vague or broader evaluation of what was just. Nor was the bar a general provision requiring the court to form a view directly on which was the more suitable forum, let alone having regard to sentencing policy or the potential for poisoner transfer, save to the extent that one of the listed factors might require consideration of it.
The true approach was simply expressed by requiring the appellate court to decide whether the decision of the judge had been wrong. The appellate court was entitled to stand back and say that a question ought to have been decided differently because the overall evaluation had been 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.
The concept of connection with the UK was not a narrow one, confined to connections to the UK as a state, principally citizenship or right of residence. It went rather wider than that, without being so elastic that it replicated the full scope of art 8 of the European Convention on Human Rights. No exhaustive definition could be attempted judicially, but connection was closer to the notion of ties for the purposes of bail decisions. It would cover family ties, their nature and strength, employment and studies, property, duration and status of residence, and nationality. It would not usually cover health conditions or medical treatment, unless there was something particular about the nature of the medical condition or the treatment it required, that connected the individual to treatment in the UK.
The risk of suicide upon extradition, or serious deterioration in health, would not, of itself, create a connection to the UK. However, they would be relevant if they were the consequences of breaking a separate connection because that would evidence its nature and strength. It was also difficult to see that the prospect of being prosecuted in the UK showed a connection to the UK.
The EA 2003 spelt out a prosecutor’s role in issuing a certificate and its consequences. There was simply no provision entitling a judge to require the expression of a belief by the prosecutor and one could not be manufactured by interpretation. However, the absence of such an expression of belief was not neutral to the forum bar issue in the scheme of the legislation. It was up to the prosecutor to decide whether and how it would participate in the issue. It should also be borne in mind that success for a requested person on the forum bar was likely to have assumed that prosecution would ensue in the UK and to create an expectation that that the prosecutor would so act, in the absence of any expression of belief to the contrary (see , , , , ,  of the judgment).
The judge had erred in her analysis of the factors which determined where the interests of justice lay in the forum bar in relation to the prospect that the appellant would be unfit to plead and the significance of the absence of a prosecutor’s view. By themselves, they would not have established that she had been wrong in the conclusion that she had reached. However, additionally, she had significantly underplayed the weight that should be attached to her conclusion that the prosecution could realistically proceed in the UK, albeit rather less conveniently for the prosecution.
What established that her decision had been wrong was the nature of the appellant’s connection to the UK. By itself, the fact that he was a British national, resident here, with a girlfriend and engaged in studies would not have established that the decision had been wrong. However, there was a particular strength in the connection to his family and home circumstances provided by the nature of his medical conditions and the care and treatment they needed. That was not just, or even primarily, the medical treatment he received, but the stability and care which his parents provided. That could not be provided abroad.
The connections, together with the other factors which should have told against extradition, outweighed those factors favouring extradition sufficiently clearly to establish that the judge had been wrong on the question of forum bar. In the present case, the forum bar in s 83A of the EA 2003 operated to prevent the appellant’s extradition to the US (see - of the judgment).
B (a child) (care order: proportionality: criterion for review), Re  3 All ER 929 applied; Polish Judicial Authorities v Celinski; Slovakian Judicial Authority v Cambal; R (on the application of Inglot) v Secretary of State for the Home Department  3 All ER 71 applied; Shaw v Government of The United States of America  EWHC 4654 (Admin) considered; Belbin v The Regional Court of Lille, France  All ER (D) 02 (Feb) considered.
(2) Whether the appellant’s extradition would be unjust or oppressive by reason of his physical or mental conductions, including Asperger Syndrome, and so required his discharge, under s 91 of the EA 2003.
Extradition would be oppressive by reason of the appellant’s physical and mental condition. The judge had not grappled with an important issue. She had accepted the Federal Bureau of Prisons’ (BOP) ability to protect the appellant from suicide on the basis of a comment that no one committed suicide on suicide watch. It had been implicit that measures could be taken in the US which would prevent the appellant committing suicide, even though he might be determined to do so and have the intellect to circumvent most preventative measures. Those measures would themselves be likely to have a serious adverse effect on his very vulnerable and unstable mental and physical well-being.
Further, the evidence as to conditions and treatment in practice was rather weightier than the judge had considered and, in the appellant’s rather particular circumstances, what was likely to happen in practice had to be given decisive weight. The judge had concluded that the high risk of suicide could be prevented because of the evidence that no one had committed suicide on suicide watch in the BOP’s care. Yet, the appellant might present himself as no longer suicidal for sufficiently long to be removed from suicide watch, precisely so that he could then commit suicide.
If the appellant were kept on suicide watch and reviewed every 30 days or so, he would be in segregation with a watcher and with very limited activities. All the evidence was that that would be very harmful for his difficult mental and physical conditions. There was no satisfactory and sufficiently specific evidence that treatment for that combination of severe problems would be available in the sort of prisons to which the appellant would most likely be sent. There was no evidence that treatment would or could be made available on suicide watch for the very conditions which suicide watch itself exacerbated. However, once removed from suicide watch, the risk of suicide as found by the judge could not realistically be prevented on her findings.
Were the appellant not to be in segregation, his Asperger Syndrome and physical conditions would make him very vulnerable. The authorities’ response would be segregation for his own protection, which would bring in all the problems of isolation already referred to. The appellant would have no support network available in prison in the US. There was no basis upon which to conclude that the severity of the problems would be brought swiftly to an end by early transfer to the UK.
Oppression as a bar to extradition required a high threshold, not readily surmounted. However, in the particular combination of circumstances, it would be oppressive to extradite the appellant (see - of the judgment).
Edward Fitzgerald QC and Ben Cooper (instructed by Kaim Todner Solicitors Ltd) for the appellant.
Peter Caldwell (instructed by the Crown Prosecution Service) for the requesting state.
Alex Balin QC and Aaron Watkins (instructed by Liberty) for the interested party.
Karina Weller - Solicitor (NSW) (non-practising).
The appellant was discharged from extradition to the United States to face charges of making a series of cyber-attacks on the computer networks of private companies and US government agencies to steal and then publicly disseminate confidential information. The Divisional Court held that the forum bar in s 83A of the Extradition Act 2003 operated to prevent the appellant’s extradition and that it would be oppressive to extradite him.