‘A forum for debate about extradition?’

On 31 July the Lord Chief Justice, Lord Burnett of Maldon, handed down perhaps the most surprising judgment yet to address the issue of forum in extradition law. His decision to bar the extradition of Stuart Scott to the US[1] for offences of wire fraud garnered scant media attention, certainly when compared to his decision in November 2017 to bar the extradition of Lauri Love[2], also to the US, for hacking offences, which made headline news .

Mr Love was the first ever person to avoid extradition under the Forum Bar, introduced into the Extradition Act 2003[3] by then Home Secretary Theresa May in 2013 following public concern over a perceived imbalance in UK/US extradition arrangements, exemplified by the case of another hacker, Gary McKinnon. The purpose of the bar, as explained by May, was to allow judges to bar extradition in the interests of justice where the alleged conduct could be prosecuted in the UK instead. However, critics of the Forum Bar argued that it was toothless because it did not give the court the power to over-rule a decision by the Crown Prosecution Service or Serious Fraud Office not to bring a domestic prosecution. The first handful of cases appeared to confirm that, provided the domestic prosecution agencies did not choose to bring charges, the courts were very unlikely to invoke forum as a reason to refuse extradition. Now, almost like London buses, a long wait has resulted in two cases in succession that have defied early expectations.

Scott is the first case in which the Forum Bar has made a material difference to the outcome, because Mr Love’s extradition was also refused on other grounds. Moreover,  Scott is not a hacker with a media-friendly, romantic, underdog image but a banker accused of manipulating foreign exchange rates for substantial personal gain, shortly after the financial crash. Most interestingly, his is the first case in which the High Court has accepted, with seeming equanimity, that the Forum Bar can allow a defendant to escape justice completely. This is especially surprising given that the Forum Bar is assessed against the interests of justice and the Lord Chief Justice confirmed in Love that its underlying aim was “to prevent extradition where the offences can be fairly and effectively tried here”.[4] Not even its most enthusiastic proponents ever argued that it was in the interests of justice to prevent defendants being prosecuted at all.  Both Love and McKinnon said that they were only trying to avoid extradition, not responsibility for their actions. McKinnon even judicially reviewed the CPS for declining to prosecute him, following in the footsteps of the so-called “NatWest 3” who tried and failed (pre-Forum-Bar) to reverse a decision by the SFO not to charge them. How, then, does the allegedly toothless Forum Bar now allow defendants to avoid justice altogether?

The first part of the answer lies in the structure of the statute. Although extradition is only barred by reason of forum if it would not be in the interests of justice, this is assessed against a closed list of seven specified factors[5] which “do not leave to the court the task of some vague or broader evaluation of what is just.[6] Therefore, if the court concludes that the weight of the specified factors is against extradition, it is not permitted to re-balance the scales by reference to any broader principle, such as the desirability of putting on trial those who are legitimately charged with criminal offences.

For the second part, one must look at the ways in which the CPS and SFO are permitted to influence the forum decision within the extradition proceedings. The Act allows for two forms of intervention. First, the prosecutor can issue a certificate to the effect that it has made a formal decision not to charge under the Code for Crown Prosecutors. This disapplies the Forum Bar completely, because the UK is no longer a possible forum for the defendant to be tried. I am not aware that any certificates have been issued in any extradition case to date. Second, the prosecutor can choose to express a belief, falling short of a formal decision, that the UK is not the most appropriate jurisdiction for a prosecution. This belief, which obviously points towards extradition, is then one of the specified factors relevant to the interests of justice. It was no secret that both the US Department of Justice and the SFO had carried out a long-running investigation into fraudulent manipulation of the foreign exchange market. In respect of Scott, the SFO confirmed at the extradition hearing that he was “at no stage considered a suspect in that investigation; moreover, that the trades which are the subject of the US Request were not at any time a part of that investigation. Finally, I can confirm that the SFO does not intend to investigate Stuart Scott for the matters subject to the US Request.” You might think that it is implicit in this statement that the SFO believed that the UK was not the most appropriate jurisdiction for a prosecution, but you would be wrong.  According to the High Court “it does not address the question of where it would be more appropriate for the appellant to be prosecuted… It is a statement of fact rather than belief.” [7] As such, not only did it carry no weight as a specified factor in the interests of justice, it also dramatically skewed the way in which the other specified factors were assessed. The reasons for this lie in the third part of the answer.

Earlier in the judgment the Lord Chief Justice pointed out that “consideration of the interests of justice… is primarily concerned with the question whether a prosecution for the conduct which is the subject of the extradition request… should take place in this country or in the requesting state. It is not concerned with… a situation where in practice the choice is between a prosecution in the requesting state and no prosecution at all.”[8] Having found, as a result of the SFO’s statement, that he was nevertheless dealing with this latter situation, he concluded that two of the specified factors were now entirely hypothetical and therefore irrelevant: whether evidence is or could be made available in the UK[9]; and whether any delay might result from proceeding in one jurisdiction rather than the other[10]. Perhaps most controversially, he held that the weight attaching to the interests of any victims of the extradition offence[11] was severely curtailed.  Whilst it was true that victims would normally favour a trial overseas over no trial at all, in this case the victim was a UK company who had already been compensated by HSBC, Scott’s employer, and his US-based co-defendant had pleaded guilty in New York. Therefore “(t)o the extent that an identifiable victim may take comfort from the prosecution of a wrong-doer, that has been possible as a result of the earlier prosecution.”[12] Because two of the specified factors already weighed heavily against extradition, namely the place where most of the loss and harm occurred and Scott’s connections to the UK (notably, his substantial personal pressures due to family illnesses), the court concluded that the overall balance meant that extradition was not in the interests of justice.

The court’s approach is certainly open to criticism. In slavishly following the statutory scheme in determining the interests of justice and eschewing any broader test, the judgment misses the point that justice is rarely served by failing to bring those properly accused of crimes before a tribunal that can determine their guilt or innocence. The court’s interpretation of the interests of victims is very narrow, and it could just as reasonably have said that victims have a strong interest in seeing all defendants taken to trial. Scott may disagree, but not having the opportunity to clear your name is not necessarily in the interests of defendants either.

Neither was the court obliged to adopt such a literal interpretation of the SFO’s statement.  If there was any confusion about whether the SFO intended to express a belief about where Scott should be tried it could have been asked to clarify its position. More problematically, the judgment ignores the fact that when the SFO or CPS clearly expresses a belief that it would be more appropriate to prosecute the defendant overseas (which in Scott’s case might have tipped the balance against him), invariably that is because it has no intention of investigating and prosecuting him domestically. If that is correct then the analysis in Scott leads to two practical paradoxes: First, the prosecutor’s belief points strongly in favour of extradition, but the practical effect of that belief – that no domestic prosecution will take place – points in completely the opposite direction.  Second, why should a formal decision not to prosecute, supported by a certificate, disapply the Forum Bar entirely whereas an informal decision to the same effect now makes its application more likely?

The Lord Chief Justice may have demonstrated that the Forum Bar has teeth, but has this judgment bitten off more than it can chew?

[1] Scott v United States of America [2018] EWHC 2021 (Admin)

[2] Love v The Government of the United States of America & Anor [2018] EWHC 172 (Admin)

[3] Sections 19A-19F and 83A-83F Extradition Act 2003

[4] Love, paragraph 22

[5]Section 83A(a)-(g)

[6] Love, paragraph 23

[7] Scott, at paragraph 46

[8] Scott, at paragraph 34

[9] Section 83A (d)

[10] Section 83A (e)

[11] Section 83A (b)

[12] Scott, at paragraph 44

By Nick Vamos, Partner at Peters & Peters Solicitors LLP

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