Andrew Fuller aka James Wellesley v Government of the United States of America

On an extradition appeal, the High Court must decide whether the district judge’s decision was wrong, rather than rehear the evidence or reweigh every factor afresh. The forum bar is confined to the statutory matters in Extradition Act 2003, section 83A. In assessing the availability of evidence, practical difficulty and effectiveness may be relevant, although the court is not choosing the preferable trial forum. The location of most loss or harm is a weighty factor. The interests of victims include interests beyond giving evidence. Connections with the United Kingdom may include family ties and the consequences of disrupting them, but they must be weighed against the other statutory factors. The possibility of a UK prosecution normally carries weight under Article 8 only where the proportionality balance is finely balanced.

The appellant appealed against District Judge Zani’s decision of 23 March 2023 referring his case to the Secretary of State for extradition to the United States. The Secretary of State ordered extradition on 10 May 2023. The alleged offences concerned an international wine-investment fraud involving wire fraud and money laundering. The appeal relied on the forum bar under section 83A of the Extradition Act 2003 and Article 8 of the ECHR. An Article 3 ground was later added but abandoned before judgment. The central issues were whether the district judge had wrongly assessed the statutory forum-bar factors, whether extradition was disproportionate under Article 8, and whether the prison conditions created a real risk of Article 3 ill-treatment.

1. Appeal dismissed. The district judge had not made an error requiring the appeal to be allowed under sections 103 and 104 of the Extradition Act 2003.

2. The appellate task was to decide whether the district judge’s decision was wrong. It was not a rehearing of the evidence or an invitation to undertake the whole evaluation afresh. The court could nevertheless stand back and conclude that the overall evaluation was wrong where crucial factors had been weighed so significantly differently that the decision could not stand.

3. The appellant’s relevant activity was substantially performed in the United Kingdom. However, the comparison under section 83A(3)(a) was properly made between the jurisdictions in which prosecution might occur, principally the United States and the United Kingdom. The evidence supported the conclusion that most loss or harm occurred, or was intended to occur, in the United States. El-Khouri concerned a different statutory question under section 137 and did not limit the assessment required by section 83A(3)(a).

4. The district judge was entitled to treat the interests of United States victims as favouring extradition. Those interests extended beyond attendance as witnesses and could include access to local proceedings and prosecution under local law. The fact that one complainant pursued civil proceedings in the United Kingdom did not provide a proxy for the wider public interest in criminal prosecution.

5. Under section 83A(3)(d), practical issues concerning the transfer and use of documentary evidence and the receipt of evidence by video link were relevant. The provision did not require the court to identify the preferable forum, but evidence could be available in the United Kingdom while the expense, inconvenience and uncertainty of obtaining it still favoured extradition.

6. Delay favoured extradition because the United States investigation was at an advanced stage, whereas a United Kingdom prosecution would require further investigation and preparation. It was also highly desirable for the appellant and his co-defendant to be prosecuted in the same jurisdiction. The co-defendant’s extradition to the United States materially strengthened this factor.

7. The appellant’s United Kingdom connections, including the serious consequences for his wife and family if the connection were severed, were a factor of significant weight in favour of the forum bar. They did not, however, outweigh the other factors favouring extradition.

8. The Article 8 challenge failed. The possibility of a prosecution in the United Kingdom was relevant only if the proportionality balance was finely balanced. This case was not finely balanced. The seriousness of the alleged offending, the public interest in complying with extradition obligations and the district judge’s assessment of family hardship justified the conclusion that extradition was proportionate.

9. Although the Article 3 ground had been abandoned, permission would have been refused. The assurances that the appellant would receive at least 3m2 of personal space at MDC Brooklyn removed the real risk identified in Weinzierl and satisfied the principles in Muršić.

• High Court (Administrative Court): appeal against the District Judge’s decision of 23 March 2023 dismissed. The Secretary of State’s extradition order dated 10 May 2023 therefore remained effective.