The Forum Bar: it does exist — Bruno Min

9 February 2018 by Guest Contributor

On 5^th February 2018 the Divisional Court gave judgment in Love v USA [2018] EWHC 172 (Admin), holding that the forum bar operated against the extradition of Lauri Love to the United States to face charges of making a series of cyber-attacks on the computer networks of private companies and US Government agencies.

This is the first reported case in which the ‘forum bar’ has been applied to block an extradition.

The Forum Bar

In October 2012, Theresa May, then Home Secretary, announced significant reforms to the way in which extradition requests are handled in the United Kingdom. These changes included a new ‘forum bar’ to extradition, which gave courts the power to refuse extraditions if the UK is the more appropriate place (or ‘forum’) where the criminal case should be heard. The forum bar was inserted into the Extradition Act 2003 in 2013 (as section 83A) and it enables the courts to stop extraditions if it decides that a substantial measure of the alleged criminal activity took place in the UK, and it would be in the interests of justice for the extradition not to take place.

The introduction of the forum bar followed public outcry over several high profile extradition cases in which the United States appeared to be exercising ‘exorbitant jurisdiction’ over criminal cases involving British defendants. Critics argued that US authorities were acting over-zealously by trying to prosecute British nationals for crimes that took place in the UK (and should therefore be tried in the UK), and that the UK could do little to prevent the extraditions to the US in such cases because the UK-US extradition treaty was supposedly imbalanced in the US’s favour.

The best known example of such cases was that of Gary McKinnon, who (according to some reports) faced up to 70 years in prison in the US for computer hacking crimes that had allegedly been committed entirely in the UK. McKinnon had never visited the US, and given his mental health vulnerabilities, there were serious concerns that his extradition would violate his human rights. Unlike some other countries in Europe, such as France, UK law does not bar the extradition of its own nationals, and at the time of McKinnon’s extradition proceedings, there were no laws in force that prevented his extradition on the basis of his connections to the UK, or on the basis that the criminal act had occurred on UK soil.

The forum bar, as well as a range of other reforms to UK extradition law, was largely welcomed by human rights activists and extradition lawyers at the time it was announced. Fair Trials had, for example, included the forum bar as part of its recommendations for making UK extradition laws fairer. However, in the first 4 years after the Extradition Act was amended, there was not a single reported case in which the forum bar blocked extradition, and this led some commentators to describe it as illusory and toothless, with some extradition lawyers doubting that courts would ever refuse an extradition request on the basis of the forum bar.

Lauri Love’s case

This view would have no doubt been reinforced by the Magistrates’ Court’s decision in September 2016 to order Lauri Love’s extradition to the United States. Love faced extradition to the US under circumstances that are remarkably similar to those of McKinnon. Like McKinnon, Love was facing criminal allegations relating to computer hacking despite never having visited the country, and he also had significant mental health issues that could deteriorate considerably if he were extradited. If the forum bar had been introduced to prevent the type of injustice seen in McKinnon’s case, its very relevance would have surely hinged on whether the courts were prepared to apply it in Love’s favour.

However, on 5^th February 2018 the Divisional Court gave judgment in Love v USA [2018] EWHC 172 (Admin), holding that the forum bar operated against Love’s extradition to the US. In reaching its decision, the court took into account a number of different factors, but the strength of Love’s connections with the UK, given the care and support he receives from his family and others on account of his vulnerabilities, was held to be decisive (see paras 42-44). This is a landmark decision that dispels the perception that the forum bar is nothing more than a theoretic bar to extradition, and it should enable extradition lawyers to argue the forum bar with more confidence. However, the judgment also seems to suggest that Love’s case was a marginal one (para 44) and that in practice, the forum bar will only be able to prevent extraditions in rare, exceptional cases.

Analysis

Love’s case was unusual in that like McKinnon, he had significant public support and sympathy (see the Free Lauri campaign website, as well as coverage in the Guardian and New Statesman), possibly because of his vulnerabilities, the nature of the accusations he faced, together with the perceived faults in the US criminal justice system, including its harsh sentencing and system of plea-bargaining. Love also benefited from a highly experienced legal team who brought together leading experts that provided compelling, decisive evidence on his mental health (see paras 75-90 and 115-118). It is doubtful that many other individuals wanted for extradition would be able to access similar levels of expertise and support on legal aid. It is also questionable whether Love’s case would have been decided in the same way, if like Domminich Shaw (who was extradited to the US for child pornography offences which were committed whilst he was in London), he had faced allegations which would make him less likely to be an object of sympathy.

The implications of the High Court decision for the Crown Prosecution Service also cannot be ignored. Under s. 83A(3)(c) of the Extradition Act, a UK prosecutor’s belief that the UK is not the most appropriate jurisdiction where the case should be tried is a relevant factor in determining whether the forum bar should prevent the extradition. No such belief was expressed by the CPS in Love’s case – in other words, the CPS did not make any explicit declaration that the US is the most appropriate jurisdiction in which his criminal case should be heard. The High Court held that the failure to express such a belief was not a ‘neutral’ factor for the purpose of making a forum bar decision, but that it is one that should be weighted (albeit moderately) in favour of applying the forum bar.

This means that in effect, the High Court decision may require the CPS to be more proactive in making prosecutorial decisions in cross-border cases. While there is no legal requirement for the CPS to make any expressions of belief regarding the appropriate jurisdiction in cross-border cases, the CPS can no longer assume that an absence of such a decision is immaterial, and it will need to consider more carefully how questions regarding forum in criminal cases should be resolved.

Bruno Min is the Legal and Policy Officer at Fair Trials, a non-profit organisation working to uphold the right to a fair trial according to internationally recognised standards of justice. It campaigned for the introduction of the forum bar as part of its recommendations for making UK extradition laws fairer.