Christopher Hamilton v The Government of the United States of America

The forum bar under section 83A of the Extradition Act 2003 requires a two-stage assessment. The court must first decide whether a substantial measure of the requested person’s relevant activity was performed in the United Kingdom. If so, it must evaluate only the specified statutory matters and decide whether extradition would not be in the interests of justice.

The factors have no fixed hierarchy. The appellate court must decide whether the first-instance decision was wrong, rather than conduct a fresh evaluation merely because it might have balanced the factors differently. Where the alleged conduct occurred principally in the United Kingdom, the evidence can be made available there, a co-defendant can be prosecuted there, and the requested person has strong United Kingdom connections, extradition may be barred even though proceedings might begin sooner abroad.

The appellant challenged an order of District Judge Rimmer sending his case to the Secretary of State for a decision on extradition to the United States. The Secretary of State subsequently ordered extradition under section 93(4) of the Extradition Act 2003.

The appellant argued that extradition was barred by the forum bar in section 83A. The District Judge accepted that a substantial measure of the relevant activity had occurred in the United Kingdom, but concluded, after assessing the seven statutory factors, that extradition remained in the interests of justice. The appellant also sought to rely on fresh evidence concerning his health and subsequent developments in the United States proceedings.

The central issue was whether the District Judge’s evaluative decision was wrong and whether the appellant should instead be discharged.

1. Appeal allowed. The appellant was discharged and the request for his extradition was quashed.
2. The court held that the statutory threshold was satisfied because a substantial measure of the appellant’s relevant activity had been performed in the United Kingdom. The statutory factors then required an overall evaluative judgment confined to the matters listed in section 83A(3).
3. The District Judge’s reasoning was flawed. He had failed to take account of the discharge of the appellant’s alleged co-defendant, had treated the case as involving a binary choice between extraditing both defendants or neither, had not always grappled with the appellant’s submissions, and had departed from the statutory reference to where “most” of the harm occurred by referring instead to the “principal” place of harm.
4. On a fresh analysis, most of the harm directly caused by the appellant’s alleged conduct occurred in the United Kingdom. The evidence necessary for a prosecution was available, or could readily be made available, there. The appellant’s co-defendant could be prosecuted only in the United Kingdom, and it was desirable and practicable for the related prosecutions to occur there.
5. The prosecutor’s belief that the United Kingdom was not the most appropriate jurisdiction carried no weight. The assessment had been undertaken without considering important evidence, including material in the possession of the United Kingdom police, and without properly addressing the appellant’s case after the co-defendant had been discharged.
6. Delay favoured extradition, but carried limited weight. The United States proceedings had advanced further, yet the evidence did not establish that trial would occur sooner there. The appellant’s strong United Kingdom connections, nationality, residence, family life and medical treatment substantially favoured a United Kingdom prosecution.
7. The court would have allowed the appeal under section 104(3) without relying on the fresh evidence. The consequence of the forum bar was prosecution in the United Kingdom rather than impunity.

• High Court (Administrative Court): appeal allowed against the order of District Judge Rimmer dated 30 August 2022. The appellant was discharged and the extradition request was quashed.
• Secretary of State: ordered extradition on 26 October 2022 under section 93(4) of the Extradition Act 2003.
• Westminster Magistrates’ Court: the appellant’s case was sent to the Secretary of State after the District Judge rejected the forum and other challenges.