Michael Lynch v Government of the United States of America

On an extradition appeal, the court must decide whether the district judge was wrong, rather than rehear the evidence or substitute its own weighting of statutory factors. Under the forum bar, the court must apply only the matters specified in Extradition Act 2003, s 83A. A prosecutor’s belief that the United Kingdom is not the most appropriate jurisdiction is not ordinarily to be reviewed on its merits unless irrational. Loss and harm may occur where the principal corporate victim and its shareholders are located, not merely where payment was made. In determining dual criminality, the court focuses on the conduct alleged and may transpose it into equivalent circumstances in the United Kingdom. Findings of fact made after hearing evidence should ordinarily be respected. The application for permission was refused because none of the grounds was arguable.

Dr Michael Lynch challenged District Judge Snow’s decision to send his case to the Secretary of State under Part 2 of the Extradition Act 2003. The United States sought his extradition to face charges arising from an alleged fraud concerning Autonomy Corporation plc and an alleged subsequent cover-up.

The district judge rejected challenges based on dual criminality, passage of time, the forum bar, Convention rights and abuse of process. The Secretary of State subsequently ordered extradition under s 93. The Divisional Court heard a rolled-up application for permission to appeal and the substantive appeal. The central issues were whether the district judge had been arguably wrong in applying the statutory bars and whether the alleged conduct constituted extradition offences.

1. Outcome. Permission to appeal was refused. None of the five grounds was arguable.
2. Appellate approach. Applying Love v Government of the United States of America [2018] 1 WLR 2889 and Scott v Government of the United States of America [2019] 1 WLR 774, the court’s task was to decide whether the district judge was wrong. It was not a rehearing or an invitation to re-weight factors. Findings of fact, particularly findings made after hearing live evidence, should ordinarily be respected.
3. Forum bar. The district judge correctly applied s 83A of the Extradition Act 2003. The alleged loss was principally suffered by HP, a United States company, and its predominantly United States shareholders. The alleged harm included substantial financial and reputational harm in the United States. The victims’ interests, the prosecutor’s reasoned belief that the United States was the more appropriate jurisdiction, the uncertainty and difficulty of securing United States co-operating witnesses for a United Kingdom trial, delay, and the desirability of one jurisdiction dealing with the prosecutions all favoured extradition. The applicant’s strong United Kingdom connections weighed against extradition but did not outweigh the other statutory factors.
4. Dual criminality. The fraud conspiracy constituted a territorial offence in the United States because overt acts occurred there and its effects were felt there. Transposed into equivalent circumstances in England and Wales, the conduct would constitute territorial conspiracy and offences including fraud by false representation and false accounting. The cover-up conspiracy was likewise an extradition offence. The indictment had to be read as a whole, and the conduct alleged was sufficient to constitute an offence in equivalent United Kingdom circumstances.
5. Other grounds. The passage-of-time bar was not made out because there was no demonstrated injustice or oppression. The medical evidence did not establish a real risk of Article 3 treatment, and the abuse-of-process allegations concerned disputed factual matters and immaterial discrepancies rather than defects undermining the extradition request.

• District Judge Snow: rejected the challenges to extradition and sent the case to the Secretary of State under s 87(3) of the Extradition Act 2003.
• Secretary of State: ordered extradition under s 93 of the Extradition Act 2003.
• High Court, Divisional Court: refused permission to appeal after a rolled-up permission and substantive hearing.