Case comment: good news for the future of the “forum bar”?

Government of USA v McDaid [2020] EWHC 1527 (Admin)

In 2013 the “forum bar” was inserted into the Extradition Act 2003 by the Crime and Courts Act 2013 and it applies to Part 1 and 2 cases. It was enacted following the Government’s review  of the UK-US Extradition Treaty (here). The review was requested following several problematic high-profile cases such as the ‘NatWest Three’ and Garry McKinnon’s case. The then Home Secretary decided to block the extradition of Gary McKinnon to the US and to remedy the perceived imbalance in the UK-US extradition arrangements.

A recent judgment of the High Court in Government of USA v McDaid [2020] EWHC 1527 (Admin) is the latest instalment in a small but notable forum bar jurisprudence. The bar has been upheld only three times so far, including in the case of Mr McDaid. The first case was Love v Government of USA [2018] EWHC 172 (Admin), closely followed by Scott v Government of USA [2018] EWHC 2021 (Admin). Love is the leading case where the relevant principles were laid down.

Although McDaid did not establish any new points of law, what makes the caseworthy of analysis is its application of the principles from the limited extant jurisprudence and the comparison it affords with these other cases.

Law

The purpose of the forum bar is in part to prevent over-zealous extra-territorial prosecutions. For Part 2 of the Extradition Act 2003, applicable to USA requests, the applicable section is s83A. In determining whether extradition would not be in the interests of justice (s83(A)(1)), a judge must decide whether a substantial amount of an individual’s activity was performed in the UK and whether, having regard to seven specific matters, extradition should not take place (s83A(2)). Those specific matters are (s83A(3)):

1. the place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur;
2. the interests of any victims of the extradition offence;
3. any belief of a prosecutor that the UK, or a particular part of the UK, is not the most appropriate jurisdiction in which to prosecute D in respect of the conduct constituting the extradition offence;
4. were D to be prosecuted in a part of the UK for an offence that corresponds to the extradition offence, whether evidence necessary to prove the offence is or could be made available in the UK;
5. any delay that might result from proceeding in one jurisdiction rather than another;
6. the desirability and practicability of all prosecutions relating to the extradition offence
   taking place in one jurisdiction, having regard (in particular) to:
   1. the jurisdictions in which witnesses, co-defendants and other suspects are
      located, and
   1. the practicability of the evidence of such persons being given in the UK or in jurisdictions outside the UK; and
7. D’s connections with the UK.

Background

The offences for which Mr McDaid was sought by the USA were allegedly committed in 2015. At that time Mr McDaid was in his early twenties. He was diagnosed with a mild autistic spectrum disorder and suffered from episodes of depression with suicidal ideation. He heavily relied on his family, especially his mother, for support in his everyday life. In this respect, two psychiatrists gave evidence before the District Judge and this evidence was unchallenged on behalf of the US Government.

In 2015 two US citizens, Mr Dobbs and Mr Passarelli, were in dispute over a drug debt. Mr Passarelli was assaulted by an associate of Mr Dobbs. In revenge, Mr Passarelli’s friend, Mr Lee, organised the “swatting” of Mr Dobbs. It was alleged that Mr Lee (in the USA) contacted Mr McDaid (in England) by Skype. Mr Lee, Mr McDaid and another British man took part in a second Skype call, in the course of which a man with an English accent called a Terrorism Hotline in the US. The caller, giving Mr Dobbs’ address, said that he had a loaded gun and plastic explosives, had taken hostages, and would execute them if a ransom was not paid. It was alleged that Mr McDaid was either the man who made that call, or alternatively had recruited the other British man to do so. He was indicted for the following offences: conspiracy against the US, false information and hoax and aiding and abetting, and aggravated identity theft and aiding and abetting.

Mr McDaid was arrested in the UK and produced before Westminster Magistrates’ Court on 7 September 2019. His co-defendant, Mr Lee, had already been tried and sentenced in January 2018 in the USA.

Mr McDaid resisted extradition. It was accepted by both parties that the substantial measure of his activity was performed in the UK. District Judge Tempia rejected Mr McDaid’s grounds but for one – the forum bar – and discharged him as his extradition would not be in the interests of justice under s83A. The Judge evaluated the specified matters set out in s83A(3) and found that (a) to (c) weighed in favour of extradition but (d) to (g) against it. 

The US government appealed on three grounds: first, the US claimed that the District Judge had erred in her approach to s83A and  in  particular  in  her  consideration  of  s83A(3)(d), (e) and (f); second, she erred in law in her construction of s83A(3)(f); and third, her overall evaluation of the forum issue was wrong.

Judgment

Regarding the first ground of appeal, the High Court was satisfied that the District Judge applied the correct test as laid down in Love at [22] and rejected the US Government’s second contention that the she erred in her construction of s83A(3)(f). As to the third ground of appeal, the Judge’s overall evaluation was not wrong, and the relevant matters should not have been weighed so significantly differently that the High Court should allow the appeal.

First, the Court was not persuaded that the Judge should have reached a different conclusion about any of the three individual factors on which the appellant relied, namely (d), (e) and (f). As to (d), it was accepted by the appellant that the relevant evidence could be made available in the UK, albeit that expense and inconvenience would be involved.

As to (e), the delay in proceedings in either country, the Judge was entitled to accept the US prosecutor’s evidence that any issue as to Mr McDaid’s health or competence would substantially lengthen the proceedings, given the unchallenged evidence of the psychiatrists. It was open to the Judge to conclude that prosecution in the UK was unlikely to result in delay.

As to (f), Mr McMaid’s co-defendant was already tried and sentenced in the USA. Moreover, the Judge was correct to anticipate that the evidence against Mr McDaid would largely come from an analysis of online communications, and that it would be practicable for the necessary witnesses to give their evidence via video link. In those circumstances, it was open to the Judge to conclude that overall, this factor weighed against extradition.

Lastly, the appellant was unable to challenge the Judge’s evaluation of (g) as a weighty factor against extradition. The Judge had heard the evidence and observed Mr McDaid and his mother during the extradition hearing and found this to be an important factor.

Commentary

The first thing that is notable about Love, Scott and McDaid is that they are the only cases where the forum bar prevented extradition, and each time to the USA. To the best of the author’s knowledge there has not yet been a successful invocation of the forum bar by a requested person vis-à-vis any other country.

Secondly, in each case it was common ground that a substantial measure of the appellant’s activity was performed in the UK and accordingly that the requirement contained in s83A(2)(a) was satisfied (Love [17], Scott [24] and McDaid [43]). To the best of the author’s knowledge, there is yet to be a significant discussion about what this entails.

Thirdly, as to the specified matters in s83A(3), the High Court made clear that there is no predetermined hierarchy between the factors (Scott [25]). However, what emerges from the three cases is that certain specified matters prevailed over others. Each specified matter is discussed in turn in the order they appear in the Act.

Concerning the place where most of the harm or loss took place, it was said by the High Court in Love that this “would usually be a very weighty factor” in favour of extradition ([28]). This was repeated in Scott ([40] and [60]) and McDaid ([44]).

Regarding the interests of any victims of the extradition offence, in Love there was a significant risk of suicide if Mr Love was extradited which favoured prosecuting him in the UK rather than likely having no prosecution in the USA ([33]). A similar argument was presented in McDaid before the District Judge who found the risk of suicide to be low, which tipped the scales towards the extradition ([25]). That factor was not addressed by the High Court. In Scott,the following matters favoured extradition to the USA: there wasa low prospect of Mr Scott’s prosecution in the UK, as the related UK civil proceedings settled there was no potential victim in the UK, and Mr Scott’s co-defendant was already being tried in the USA ([44] and [45]).

As to the domestic prosecutor’s belief that the UK, or a particular part of the UK, is not the most appropriate jurisdiction in which to prosecute the defendant, in Love, Lord Burnett CJ expressed obiter ([34] and [35]) that the absence of any such belief was “a factor which albeit modestly, favoured” the operation of the bar to extradition. However, in Scott he clarified the correct approach to s83(A)(3)(c): this factor is not to be considered unless the domestic prosecutor’s belief was expressed ([28] to [31]). This was applied in McDaid by the District Judge as the prosecutor expressed his belief that the prosecution should take place in the USA ([26]), but again it was not discussed by the High Court. This specified matter seems to have found little traction with the courts as unless the prosecutor’s belief is expressed, which it hardly ever is, this factor will not come into play.

The High Court, in all three cases, has not seen the availability of the evidence in the UK factor as particularly meaningful. It was accepted that the evidence could be made available in the UK digitally, witnesses could give evidence via video-link, or that witnesses were willing to travel to the USA to give evidence in person in the co-defendant’s trial. Though it was also recognised by the Court that making the evidence available in the UK could cause some inconvenience (Love [36]; Scott [48]-[51]; and McDaid [47]).

Regarding delay in either jurisdiction, in Love, based on the evidence before the Court, there was no clear justification for favouring one jurisdiction over another ([38]). In Scott this factor was not considered on account of a low prospect of trial in the UK ([52] and [53]). In McDaid the Court agreed with the District Judge that this factor weighed against extradition. In this respect the Judge took into account evidence from the US prosecutor that there could be significant delays (beyond 70 days) if the defence filed any motions relating to Mr McDaid’s mental health ([28] and [48]). This shows scope for argument in relation to this factor depending on the factual circumstances.

The desirability of all prosecutions taking place in one jurisdiction has gained some footing with judges in comparison with some of the other factors. In Scott, Mr Scott’s co-defendant was being tried in the USA around the time of Mr Scott’s extradition proceedings in the UK. One trial with both as co-defendants in the USA was thus not achievable. However, a possibility of a subsequent separate  trial of Mr Scott in the same jurisdiction was still weighty factor, though not as weighty as if there was a prospect of a single trial with both co-defendants ([55] and [56]). In contrast, in McDaid this factor lent weight against extradition on account of the US authorities expressing a view Mr McDaid could be prosecuted in the UK, the fact that evidence could be made available in the UK digitally and witnesses could appear via video-link in his UK trial ([49]).  

In Love, whilst all the specified matters under the bar were examined, considerable weight was placed upon his connections to the UK; namely his connection to his family and home circumstances due to his mental health disorder and the care and support he required. In addition, the prospect of Mr Love’s prosecution in the UK contributed to the High Court’s decision that the extradition would not be in the interests of justice ([40], [42], and [43]).  

In McDaid, as in Love, the High Court would appear again to view connections to the UK as a weighty factor due to mental health issues and Mr McDaid’s heavy reliance on his family. Though in Mr McDaid’s case his connections to the UK were perhaps not as weighty a factor as in Love, they were a significant part of the decision-making process ([50]).

In Scott, on the face of the judgment, there was nothing exceptionally significant in Mr Scott’s connections to the UK other than that they were strong connections to the UK ([57]). Nonetheless, the court viewed these connections as an important factor weighing against extradition ([58]).

Conclusion

Although the High Court stressed that the there is no predetermined hierarchy, what emerges is a picture where a significant status is afforded to certain factors. Other factors do not appear essential. 

It is clear from the three cases that connections to the UK and where most harm occurred were considered to be very weighty factors in the Court’s overall assessment.

There seems to be a scope for arguing against extradition based on other factors, such as the interests of any victims, delay in either jurisdiction, or the availability of the evidence in the UK.

Other specified matters, such as the domestic prosecutor’s belief or the desirability of all prosecutions taking place in one jurisdiction, are less prominent in the judgments. This could be because the Court attributed them lesser importance or may be because they are not engaged as often as the other factors.

Even though it may be too soon to perceive Love, Scott and McDaid as indicating that the forum bar will be more readily applied by the courts, these cases can be viewed as a signpost in that direction. The forum bar finally seems to have some traction and resonance with judges.

These three cases are examples of the forum bar achieving that which it set out to do but we are yet to see wider success in deploying this bar to extradition. For example, we are yet to see its application in a European context.

Achieving effective invocation of the forum bar is important to protect requested persons by preventing over-zealous extra-territorial prosecutions when it would not be in the interests of justice to extradite.

Author: Lucia Brieskova