Scott v United States of America

The forum bar applies where a substantial measure of the requested person’s relevant activity occurred in the United Kingdom and, having regard only to the statutory factors, extradition would not be in the interests of justice. Every specified factor must be borne in mind, but its relevance and weight depend on the case. There is no predetermined hierarchy.

Section 83A(3)(c) of the Extradition Act 2003 applies only where a domestic prosecutor has expressed the prescribed belief. The absence of such a belief is neutral. Evidence that no domestic prosecution is likely may nevertheless affect the weight of other statutory factors. Where the practical choice is between trial abroad and no trial, hypothetical comparisons with a United Kingdom prosecution may carry little or no weight.

The United States requested the appellant’s extradition to stand trial for conspiracy to commit wire fraud and substantive wire-fraud offences arising from alleged foreign-exchange market manipulation. The alleged scheme involved using confidential information to front-run a substantial currency transaction and ramp the sterling-dollar price.

District Judge Snow rejected challenges based on abuse of process and dual criminality, the location of the conduct, the forum bar and article 8. The Secretary of State then ordered extradition. Permission to appeal was granted on the forum issue, while applications concerning the other grounds were renewed before the Divisional Court.

It was common ground that a substantial measure of the appellant’s relevant activity occurred in the United Kingdom. The principal issue was whether, having regard only to the matters specified in section 83A(3) of the Extradition Act 2003, extradition would be contrary to the interests of justice.

1. The appeal was allowed on the forum issue and the appellant was discharged. Most of the quantified harm was suffered by a British company in the United Kingdom. Equal or greater harm was also done to the integrity of the United Kingdom markets, where more of the trading occurred. This was a factor of some weight against extradition. The appellant’s British nationality, residence, family life and complete absence of any material connection with the United States constituted a further powerful factor against extradition.

2. All matters specified in section 83A(3) of the Extradition Act 2003 must be borne in mind. Their relevance and weight vary between cases, and there is no predetermined hierarchy. The statutory inquiry is confined to those matters and is not a general assessment of the most suitable forum.

3. Section 83A(3)(c) operates only if a prosecutor has expressed the prescribed belief that the United Kingdom is not the most appropriate jurisdiction. The absence of such a belief does not modestly favour the forum bar. On that point, the court followed Shaw and Atraskevic and declined to follow the dicta in Love v Government of the United States of America [2018] EWHC 172 (Admin).

4. The Serious Fraud Office statement that it had not investigated the appellant and did not intend to do so was not a belief within section 83A(3)(c). It was nevertheless relevant to other specified matters. It established that the practical choice was between trial in New York and no trial. Comparisons concerning witness convenience, available evidence and delay consequently became hypothetical and carried little or no independent weight.

5. The victim’s interest favoured a trial in the United States rather than no trial, but with reduced weight because compensation had been paid and a co-accused had already been prosecuted. Conducting related prosecutions in one jurisdiction also favoured extradition, although separate trials meant that the advantages were reduced.

6. The district judge gave insufficient weight to the two powerful factors against extradition and excessive weight to the factors favouring it. His overall evaluation was wrong. Permission to appeal was refused on abuse of process and dual criminality because the alleged correction to the request was not clear and beyond legitimate dispute. Permission was also refused on the territorial-conduct and article 8 grounds.

1. High Court, Divisional Court: Allowed the appeal under the forum bar and discharged the appellant. It refused permission to appeal on abuse of process and dual criminality, territorial conduct and article 8.
2. Secretary of State: Ordered the appellant’s extradition on 6 December 2017.
3. Westminster Magistrates’ Court: District Judge Snow rejected all objections and sent the case to the Secretary of State under section 87(3) of the Extradition Act 2003.