Love v The Government of the United States of America & Anor

An extradition appeal asks whether the district judge’s decision was wrong. It is not a rehearing, and the appellate court need not identify a judicial review error before correcting an overall evaluation in which crucial factors received materially incorrect weight.

The forum bar under section 83A of the Extradition Act 2003 is confined to the specified statutory matters. Strong family and home ties, whose importance is demonstrated by medical dependency, may outweigh the location of harm where an effective domestic prosecution is realistically available. A prosecutor’s failure to express a view modestly favours the bar.

Under section 91, suicide-prevention measures do not answer oppression if those measures and the practical conditions of detention would themselves cause grave deterioration in intertwined mental and physical conditions.

Love v The Government of the United States of America & Anor concerned an appeal against a district judge’s decision to send an extradition request to the Secretary of State under Part 2 of the Extradition Act 2003. The Secretary of State subsequently ordered extradition to the United States.

The appellant faced three federal indictments alleging sustained cyber-attacks against United States government agencies and private organisations. A substantial part of the alleged activity was performed from his home in England. He had Asperger Syndrome, severe depression, eczema and asthma, and was assessed as presenting a high risk of suicide if extradited.

The principal questions were whether extradition was barred by forum under section 83A, whether his physical or mental condition made extradition unjust or oppressive under section 91, and whether extradition would breach articles 3 or 8 of the European Convention on Human Rights.

1. Appeal allowed and appellant discharged. The forum bar in section 83A of the Extradition Act 2003 prevented extradition. Extradition would also be oppressive under section 91 because of the appellant’s physical and mental condition.

2. On an appeal governed by section 104(3), the question is whether the district judge’s decision was wrong. The appeal is not a rehearing or an opportunity merely to reargue the weight assigned to statutory factors. Findings of fact, particularly those based on oral evidence, ordinarily deserve respect. Nevertheless, the appellate court may conclude that the overall evaluation was wrong because crucial factors should have received materially different weight. A judicial review error is not a prerequisite. The approach in Celinski v Poland [2015] EWHC 1274 and Re B (A Child) (FC) [2013] UKSC 33 was applied, while Shaw v Government of the United States of America [2014] EWHC 4654 (Admin) and Belbin v Regional Court of Lille, France [2015] EWHC 149 (Admin) were explained.

3. Section 83A is a safeguard for cases in which an offence can be tried fairly and effectively in the United Kingdom and extradition would not serve the interests of justice. The court must confine itself to the specified statutory matters. It does not conduct a free-standing inquiry into the preferable forum or sentencing policy. The district judge had understated the significant risk that detention would render the appellant unfit for trial, the realistic availability of the evidence for a domestic prosecution, and the significance of the prosecutor’s failure to express a view against prosecution here.

   Most importantly, the appellant’s medical dependency demonstrated the exceptional strength of his connection with his family and home. That connection, together with the other factors favouring a domestic trial, clearly outweighed the location of the harm and the inconvenience to United States witnesses.

4. A prosecutor cannot be required to express a forum belief. If such a belief is relied upon, it should be expressed for the forum decision by an authorised prosecutor and supported by reasons. An unsupported assertion carries little or no weight. The absence of any prosecutor’s belief that the United Kingdom is an inappropriate jurisdiction is not neutral; it modestly favours the requested person.

5. Oppression under section 91 has a high threshold. The district judge had concentrated on whether suicide watch could prevent suicide, without adequately addressing the serious harm caused by the preventative regime itself. Isolation, segregation and inadequate practical access to suitable treatment would probably exacerbate the appellant’s Asperger Syndrome, depression, eczema and asthma. Removal from his support network would create a grave risk of lasting deterioration and suicide, while release from suicide watch would restore the acute suicide risk. The particular combination of circumstances made extradition oppressive.

   The article 3 and article 8 issues required no determination. The court added that domestic prosecution would not be oppressive and should follow rather than impunity.

• High Court (Administrative Court): Allowed the appeal, held that extradition was barred by forum and would be oppressive, and discharged the appellant.
• Secretary of State: Ordered extradition to the United States on 14 November 2016. The issues specifically determined by the Secretary of State were not challenged.
• Westminster Magistrates’ Court: On 16 September 2016 District Judge Tempia sent the case to the Secretary of State for a decision whether to order extradition under Part 2 of the Extradition Act 2003.