THE GOVERNMENT OF THE UNITED STATES OF AMERICA v CHRISTOPHER OSBORNE

On a forum-bar appeal, the court must first decide whether a substantial measure of the requested person’s relevant activity was performed in the United Kingdom. If that gateway is satisfied, the judge must have regard only to the specified matters in section 83A of the Extradition Act 2003, evaluate the weight of each, and decide whether extradition would not be in the interests of justice.

The factors have no predetermined hierarchy. A prosecutor’s belief that the United Kingdom is not the most appropriate jurisdiction is not automatically decisive. It may receive reduced weight where the judge reaches different conclusions on factors considered by the prosecutor. Practicability of witnesses giving evidence by video link may be relevant. On appeal, the question is whether the decision was wrong, including because crucial factors were weighed so significantly differently that the result should have been different.

The United States appealed under section 105 of the Extradition Act 2003 against District Judge Goozée’s decision ordering Christopher Osborne’s discharge under section 79(3). The request concerned prosecution in New York for sexual exploitation, coercion and enticement of minors, and receipt and distribution of child pornography.

The District Judge accepted that a substantial measure of the relevant activity had occurred in the United Kingdom. He concluded that extradition was barred by the forum bar under section 83A, having regard to the location of the harm, the victims’ interests, the prosecutor’s belief, evidence availability, delay, the desirability and practicability of prosecution in one jurisdiction, and Osborne’s United Kingdom connections.

The appeal challenged the treatment of the prosecutor’s belief, delay, and the practicability of video-link evidence.

1. Appeal dismissed. The District Judge’s decision was not wrong within the meaning of section 106 of the Extradition Act 2003.
2. Once the section 83A(2)(a) gateway is satisfied, the judge must have regard to the section 83A(3) matters, and only those matters. Each factor must be evaluated, but Parliament prescribed no hierarchy. The court must then decide whether extradition, rather than prosecution in the United Kingdom, would not be in the interests of justice.
3. The prosecutor’s belief under section 83A(3)(c) is an independent factor. Its weight is for the judge. The District Judge was entitled to give it reduced weight because he had reached different conclusions on factors (d), (e) and (f), which had also informed the prosecutor’s belief. He did not give the belief no weight.
4. The District Judge was entitled to treat delay as neutral. The United States still needed to obtain original evidence through an MLA process, while the United Kingdom investigation had been completed and referred for a charging decision. There was no evidence that United Kingdom proceedings would necessarily be significantly slower, or that the pandemic had affected the two jurisdictions materially differently.
5. “Practicability” in section 83A(3)(f) includes whether witnesses can give evidence by video link. The District Judge was entitled to find that the two victims could give evidence remotely from the United States. The possibility of video-link evidence was relevant under both factors (d) and (f), which may overlap.
6. A person’s United Kingdom connections under section 83A(3)(g) may include having been questioned by United Kingdom police and having answered questions in reliance on an expectation of prosecution here. The District Judge was entitled to treat those matters as a substantial connection.
7. Although the District Judge used the expression “balancing exercise”, he applied the statutory question correctly. The appeal court does not re-hear the evidence or merely substitute different weights. An appeal succeeds only where the decision was wrong, including because an error, individually or cumulatively, was material to the discharge decision.

• High Court (Administrative Court): appeal under section 105 of the Extradition Act 2003 dismissed.
• District Judge Goozée: ordered the respondent’s discharge under section 79(3) of the Extradition Act 2003 because extradition was barred by the forum bar.