Wyatt v Government of United States of America

The forum bar under the Extradition Act 2003, section 83A, requires a narrowly confined statutory interests-of-justice assessment. After deciding that a substantial measure of the requested person’s relevant activity was performed in the United Kingdom, the judge must consider only the specified matters. The inquiry is not a general comparison of the more suitable forum.

A prosecutor’s reasoned belief that the United Kingdom is not the most appropriate jurisdiction is an independent factor. It may draw on the statutory matters and other rational considerations, including trial dynamics, resources and differences between legal regimes. Victims’ interests extend beyond the convenience of giving evidence. On appeal, the question is whether the extradition judge was wrong, not whether the appellate court would rebalance the factors.

The United States sought the extradition of Nathan Wyatt for alleged computer hacking, extortionate demands and disclosure of personal medical records. On 25 January 2019, District Judge Tempia sent the case to the Secretary of State, who ordered extradition. The judge found the threshold under section 83A satisfied but concluded that the interests of justice favoured trial in the United States.

The appeal challenged the balancing of the statutory factors, particularly the availability of evidence in the United Kingdom, the interests of victims, the relevance of conducting prosecutions in one jurisdiction, delay and the prosecutor’s statement of belief that the United States was the more appropriate forum. The central issue was whether the judge’s conclusion was wrong.

Appeal dismissed. Lord Burnett of Maldon CJ delivered the judgment, and Mrs Justice May agreed.

1. The forum bar under section 83A of the Extradition Act 2003 is a narrowly defined statutory inquiry. The court endorsed the approach explained in Ejinyere v USA [2018] EWHC 2841 (Admin), echoing Love v USA [2018] EWHC 172 (Admin). The judge must consider the statutory matters and must not undertake a vague or broader assessment of which forum is generally more suitable.
2. On an appeal from a forum-bar decision, the issue is whether the extradition judge was wrong. The appellate court must not unpick the reasoning and then substitute its own primary balancing exercise.
3. The interests of victims are not limited to the convenience of giving evidence. They may include attending the trial, maintaining contact with prosecuting authorities and having proceedings take place where the harm occurred, with the possibility of an appropriate local sentence. The judge was entitled to treat this factor as important and as favouring extradition. The possibility of evidence being made available to the Crown Prosecution Service was recognised and weighed against extradition.
4. The prosecutor’s belief that the United Kingdom was not the most appropriate jurisdiction was an independent factor. Its weight was for the judge, and a more reasoned and explained belief was likely to carry greater weight. The belief was not weakened merely because it took account of the statutory factors. A prosecutor may also consider other rational matters, including trial dynamics, resources and differences between legal regimes.
5. The single-jurisdiction factor could be considered in light of the location of witnesses and the possibility that other suspects were under investigation, even though there were no co-defendants in the United States proceedings. The judge’s explanation of this factor was incomplete, but that textual criticism did not establish that the overall conclusion was wrong.
6. The judge had carefully identified and weighed the statutory factors. Harm, victims’ interests, the prosecutor’s belief, delay and the single-jurisdiction considerations favoured extradition, while evidence availability and United Kingdom connections weighed against it. The decision could not be characterised as wrong, and the appeal was dismissed.

1. High Court (Administrative Court): The appeal against District Judge Tempia’s decision was dismissed: [2019] EWHC 2978 (Admin).
2. District Judge Tempia: On 25 January 2019, sent the case to the Secretary of State after concluding that extradition was not barred by forum.
3. Secretary of State: Subsequently ordered extradition.