Government of the United States of America v McDaid

The forum bar is not a broad choice between the more suitable forums. Once the substantial-activity threshold is met, the court must assess only the specified statutory matters relating to the interests of justice. The assessment is fact-specific, and the weight of each matter varies from case to case. An appeal is not a rehearing or a fresh balancing exercise. The appellate court intervenes only where the overall evaluation is wrong. The factor concerning all prosecutions remains relevant even where a co-offender has already been tried separately. Close family support may be a significant connection with the United Kingdom, while health consequences may evidence the strength of that connection.

The Government of the United States of America appealed, with permission, against the discharge of Robert Walker McDaid by District Judge Tempia in the Westminster Magistrates’ Court on 28 February 2019. The discharge followed a request for extradition to the USA to face charges arising from an alleged false emergency report which caused an armed police response.

The parties accepted that a substantial measure of the respondent’s relevant activity was performed in the United Kingdom. The appeal challenged the judge’s approach to the evidence, delay and all-prosecutions factors under section 83A, her construction of the all-prosecutions factor, and her overall evaluation of the forum bar.

The appeal was dismissed. The judge’s order discharging the respondent on the ground of forum was upheld.

1. Applicable test. Under Extradition Act 2003, section 83A is not a general inquiry into which of the United Kingdom or the requesting state is the more suitable forum. Where a substantial measure of the requested person’s relevant activity was performed in the United Kingdom, the court must evaluate the specified matters and decide whether extradition would not be in the interests of justice. The evaluation is fact-specific, and the relevance and weight of each matter vary according to the circumstances. The statutory list is exhaustive.
2. Appellate approach. The appeal was not a rehearing of the evidence or a repetition of submissions about the weight of individual factors. The High Court was required to respect the District Judge’s findings, particularly findings based on oral evidence. It could intervene only if crucial factors had required materially different weight so that the overall evaluation was wrong. The judge’s use of the phrase balancing exercise was imprecise but did not show that she had applied the wrong statutory test. Her reasoning demonstrated that she had considered the specified matters and applied the correct inquiry, consistently with Love v Government of USA [2018] 1 WLR 2889; [2018] EWHC 172 (Admin) and Scott v Government of the United States of America [2019] 1 WLR 774; [2018] EWHC 2021 (Admin).
3. Individual factors. The evidence factor was properly found to weigh against extradition. The necessary evidence could be made available in the United Kingdom. Whether a corresponding domestic offence existed was a matter for the prosecutor-belief and all-prosecutions factors, and the existence of such an offence was presumed by the opening words of the evidence factor. The delay factor was also properly assessed. Further investigation could cause delay in either jurisdiction, while issues concerning health or competence could substantially lengthen proceedings in the USA.
4. The all-prosecutions factor was not irrelevant merely because the respondent would stand trial alone. A joint trial may carry greater weight, but the public interest in proceedings taking place in the same jurisdiction and under the same law remained relevant. In this case, the prior conviction of the co-offender, the evidence being largely based on communications, the practicability of video-link evidence, and the USA’s willingness in principle to accept a prosecution in the United Kingdom justified the judge’s conclusion that this factor weighed against extradition.
5. The respondent’s United Kingdom connections, particularly his close and supportive family relationships, were properly treated as a weighty factor against extradition. The appellant did not challenge that assessment. Even if the judge’s treatment of the other factors had been open to criticism, the overall evaluation was not shown to be wrong. The appeal therefore failed.

• High Court (Administrative Court). The appeal under sections 105 and 106 of the Extradition Act 2003 was dismissed.
• Westminster Magistrates’ Court. On 28 February 2019, District Judge Tempia discharged the respondent, holding that extradition was barred by reason of forum.