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21 September 2016

The Forum Bar and Lauri Love - a limited protection

5 mins

On Friday 16 September District Judge Nina Tempia refused to discharge the extradition warrant against Lauri Love, the computer hacker who suffers from Asperger’s syndrome and depression.

She concluded that although Mr Love

“suffers from both physical and mental health issues…the medical facilities in the United States Prison Estate … are such that I can be satisfied his needs will be comprehensively met by the US authorities”. 

His case has been sent to the Home Secretary, Amber Rudd, to decide whether he should be extradited. Lauri Love’s case has many similarities to that of Gary McKinnon, the computer hacker who was also accused of phone hacking into sensitive NASA documents. He successfully resisted extradition to the US after a lengthy legal fight, however, due to amendments in the Extradition Act, Lauri Love has a tougher battle ahead.

In 2012 Gary McKinnon successfully resisted extradition after a 10 year battle in the courts when Theresa May, then Home Secretary, exercised her discretion and ruled in his favour on the grounds that his extradition “would give rise to such a high risk of him ending his life that a decision to extradite would be incompatible with Mr McKinnon’s human rights.” She had the complete range of the Human Rights Act available to her to inform her decision.

Following this ruling Theresa May announced that the law would be changed so that no future Home Secretary would have the power to over rule the courts on health, Human Rights and other relevant considerations. Such a change in the law may have been welcomed by those who require the protection of the law when political considerations and the weight of public opinion are prone to unduly influence a politician’s judgement, such as those accused of terrorist offences. But this amendment may be devastating for Lauri Love as the Home Secretary now has a far more limited remit. Public campaigns, such as the one successfully run by Gary McKinnon’s mother, no longer carry the weight they did with an extradition process that proceeds completely through the courts. Once Amber Rudd presumably makes her decision to order extradition, Lauri Love will then have 14 days to apply to the High Court for permission to appeal the ruling of DJ Tempia. 

In 2012 Theresa May also introduced further amendments to the Extradition Act through the 2013 Crime and Courts Act so that extradition may now be barred by British courts if a “substantial measure” of the alleged criminal conduct took place in Britain and extradition would not be in the interests of justice. Some commentators have seen Lauri Love as a test case on how far this forum bar may be applied, but, from press reports, it appears that it carried little weight in the Love proceedings. When assessing whether a “substantial measure” of the criminal conduct took place in the UK the court must consider: where most of the harm or loss caused by the crime occurred; the interests of victims; the prosecutor’s view on the appropriateness of U.K. jurisdiction; the availability of evidence; any concerns about delays that would be caused by blocking extradition; the jurisdiction in which it is desirable and practical to try offences given the location of witnesses, co-defendants, and other suspects – and where is best for such persons to give their evidence; and whether the individual in question has connections with Britain. 

Commentators have described the forum bar as “illusory”. This is partly because the “prosecutor’s belief” will carry substantial weight – even if the Judge finds that extradition is barred by reason of forum, the Judge cannot order the prosecution to prosecute – the decision is theirs and theirs alone. If the “substantial measure” test is not met, the court will not even go on to consider the interest of justice test. 

Lauri Love’s home was raided by the National Crime Agency (NCA) in October 2013 but the NCA confirmed to the Guardian newspaper that it “never sent a full file of evidence on Love to the CPS”. He was investigated but clearly it was felt by the NCA that there was insufficient evidence to even refer this case to the CPS to decide on whether to charge. The US is going to have a far greater vested interest in prosecuting this matter given that the alleged “damage” affected their agencies on their shores.

So where does this leave the forum bar? If a District Judge concludes that a “substantial measure of the relevant activity” was not performed in the United Kingdom, the interests of justice do not then come into play. Arguably, it is therefore likely that the forum bar will have little impact on extradition given that, if a substantial measure of the relevant activity takes place in the United Kingdom, that individual will be prosecuted in the UK and not extradited. A domestic prosecution would prevent extradition until the outcome of that prosecution. 

I am not clear whether forum will be an issue to be decided in the High Court for Lauri Love or whether the challenge will focus on his mental and physical health. However the case is defended, it is certainly not the last we have heard from Mr Love and his fight against extradition.

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