Love v Government Of United States Of America [2018] EWHC 172 (Admin), [2018] 1 WLR 2889

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# Love v Government of United States of America [2018] EWHC 172 (Admin), [2018] 1 WR 2889

In Love v Government of United States of America [2018] EWHC 172 (Admin), [2018] 1 WR 2889, the Divisional Court (the Lord Chief Justice, Lord Burnett of Maldon, and Ouseley J) allowed Mr Love’s appeal against his ordered extradition to the United States and discharged him, finding that extradition was barred both by the forum bar in section 83A of the Extradition Act 2003 and because it would be oppressive by reason of his physical and mental condition under section 91.

Mr Love, a 32-year-old British and Finnish national, was sought by the United States under three federal indictments alleging computer hacking offences committed between October 2012 and October 2013. The allegations were that he, working with others, carried out a series of cyber-attacks on private companies and United States government agencies including the Federal Reserve, US Army, NASA, and Department of Defence. The attacks allegedly exploited vulnerabilities in Adobe ColdFusion software and used SQL injection techniques to gain unauthorised access, place backdoors within networks, and steal confidential data including personal information, social security numbers, credit card details, and salary information. The FBI identified Mr Love through a confidential source who had access to an online chat room where Mr Love allegedly discussed hacking activities using nicknames including “nsh”, “peace”, “shift” and “route”. The three indictments, returned in New Jersey, the Southern District of New York, and the Eastern District of Virginia, comprised a total of twelve counts with maximum sentences ranging from two to ten years per count, with aggravated identity theft counts potentially consecutive. The offences corresponded to offences under the Computer Misuse Act 1990, the Proceeds of Crime Act 2002, and conspiracy to defraud.

On 25 October 2013 the National Crime Agency executed a search warrant at Mr Love’s parents’ home where he lived. One of his computers was logged into a chat room using the nickname “nsh”. Preliminary review revealed stolen data on his computers. He was arrested on suspicion of Computer Misuse Act offences, gave a no comment interview, and was released on bail. In July 2014 he was released from bail but told the investigation remained active. In June 2014, not before the District Judge, the Crown Prosecution Service decided to allow the United States indictment to take priority over a UK prosecution. On 15 July 2015 Mr Love was arrested pursuant to the extradition warrant. On 16 September 2016 District Judge Tempia at Westminster Magistrates’ Court sent his case to the Home Secretary, who on 14 November 2016 ordered his extradition. Mr Love was on bail throughout.

The District Judge accepted unchallenged medical evidence that Mr Love suffered from Asperger Syndrome, a very severe disability causing him to become so absorbed in his interests that he neglected important areas of his life including his studies and health. He was high functioning, had capacity to participate in a trial and give instructions, and his thinking processes were generally excellent. He also suffered from severe eczema since birth, a partly stress-related condition exacerbated by his mental health issues causing daily problems requiring extensive medication and hygiene routines. He suffered from asthma. He had suffered from depression since 2004 which had worsened since the proceedings began, though he had not consistently taken prescribed medication and had proved very reluctant to engage in psychiatric or psychological treatment in the UK. There had been no past incidents of self-harm but he had experienced suicidal thoughts intermittently. The judge accepted the evidence of Professor Baron-Cohen and Professor Kopelman that Mr Love would attempt suicide before extradition and would be at high risk of suicide, and that this was not a voluntary plan but due to his mental health being dependent on him being at home with his parents and not being detained indefinitely. His father, a prison chaplain, gave evidence that Mr Love was a nightmare to live with, struggled with what was possible or real, had no regard for consequences, could not function without his parents, and that only their support prevented suicide. His father believed Mr Love would die if imprisoned in America but thought he could get through imprisonment in England with his parents’ help.

On the forum bar under section 83A of the 2003 Act, the District Judge found that a substantial measure of Mr Love’s relevant activity was performed in the United Kingdom. She then considered the specified matters relating to the interests of justice. She found that most if not all loss or harm occurred in the United States. On the interests of victims, she rejected the submission that their interests might not be served by extradition because Mr Love might not be fit to stand trial, treating this as conjecture. On any belief of a prosecutor, she treated the absence of any CPS belief that the UK was not the most appropriate jurisdiction as neutral. On availability of evidence, she accepted that evidence could be made available in the UK but that there would be substantial difficulty, particularly with witnesses. On delay, she found no clear basis for favouring one jurisdiction. On desirability of prosecutions in one jurisdiction, there were no co-defendants and over twenty witnesses all in the United States. On Mr Love’s connections to the UK, she accepted these included his personal circumstances, health and support network, not merely connection to the state, but found these did not outweigh the fact that conduct occurred in the US, victims were in the US, their interests were best served by trial there, and she had no evidence of how far any UK investigation had progressed.

On oppression under section 91, the District Judge accepted there was a substantial risk Mr Love would commit suicide before removal, in transit and on arrival in the United States, and that his mental condition removed his capacity to resist the impulse to commit suicide. She accepted evidence from United States authorities about safeguards during transport by the US Marshals Service and about suicide prevention programmes and mental and physical healthcare in Bureau of Prisons facilities, particularly the Metropolitan Detention Center in Brooklyn and Metropolitan Correctional Center in New York where he would likely be detained. She concluded that preventative measures would be effective in preventing suicide, relying on evidence from Dr Kucharski that no one commits suicide on suicide watch. She rejected the suggestion that extradition was oppressive.

The Divisional Court admitted further medical evidence from Professor Kopelman dated 29 October 2017 showing Mr Love was currently severely depressed. Professor Kopelman maintained there was a very high risk Mr Love would not be fit to stand trial in the United States because of likely severe deterioration in both physical and mental state, worsening of eczema, asthma and depression, likely development of psychotic symptoms, very high suicide risk, and severe compromise of his ability to concentrate, cope with proceedings, make rational decisions and give evidence. The court held the District Judge was wrong to characterise this as conjecture. Professor Kopelman’s evidence, including his oral evidence, clearly stated there was a real risk that if remanded in custody Mr Love would become unfit to plead, depending on whether his depression worsened, if he became psychotic, and if his asthma and eczema worsened his mood, and that severely worsening depression with possible onset of psychosis was exactly what was anticipated.

On the forum bar, the court identified two areas of respectful disagreement with the District Judge: the prospect of unfitness to plead and the significance of absence of a prosecutor’s view. The court held the absence of any prosecutor’s belief was not neutral but a factor which, albeit modestly, favoured Mr Love. The CPS had not expressed any view adverse to prosecution in the UK through the formal mechanisms available in section 83A. The court rejected Liberty’s submission that the 2003 Act required the prosecutor actively to engage with the forum process beyond what the statute provided, but emphasised that absence of expression of belief was not neutral in the statutory scheme. The court also held the District Judge significantly underplayed the weight to be attached to her conclusion that prosecution could realistically proceed in the UK, albeit less conveniently. The court gave particular weight to the nature of Mr Love’s connection to the UK, not just his nationality and residence but the particular strength of connection to his family and home circumstances provided by the nature of his medical conditions and the care and treatment they needed, especially the stability and care his parents provided which could not be provided abroad and which his entire wellbeing was bound up with. The court held that these connections, together with the other factors, outweighed those favouring extradition sufficiently clearly to make the District Judge’s decision wrong.

On oppression, the court admitted further evidence about conditions at MDC and MCC including a Federal Magistrate’s report describing conditions as unconscionable because of absence of sunlight, fresh air, air conditioning, outdoor exercise, and poor food and medical treatment, and a June 2016 report by the National Association of Women Judges making similar findings. The court also considered evidence from Dr Kucharski about the reality of psychological services in BOP facilities, including that only two or three psychologists were available for direct inmate healthcare with ratios of about 100 to 130:1, that most treatment was by medication only, and that resources were severely constrained. Dr Kucharski stated he would place Mr Love on suicide watch immediately on arrival but that this would be likely to exacerbate his depression and substantially increase suicide risk. He warned that suicide watch was a device to prevent suicide, not a form of treatment, with minimal treatment available, and that the international nature and notoriety of the case would add pressure to keeping Mr Love on suicide watch. He stated that isolation in suicide watch was likely to have severe adverse effect on mental state, precipitate psychotic experiences including psychotic depression, and increase suicidal ideas. The court also considered evidence from Mr Katznelson about failings in delivery of care and vulnerability of those with Asperger Syndrome in the prison environment.

The court concluded the District Judge did not grapple with the important issue of whether measures to prevent suicide would themselves have a seriously adverse effect on Mr Love’s vulnerable and unstable mental and physical wellbeing. The court found they would, both on the evidence before the District Judge and on further evidence received. The court held that if suicide risk could be prevented through suicide watch, this would involve segregation which would be very harmful for his Asperger Syndrome and depression and for his eczema which would be exacerbated by stress, creating a worsening cycle. There was no satisfactory evidence that treatment for this combination of severe problems would be available. Suicide watch was not treatment and there was no evidence treatment would be available on suicide watch for the very conditions it exacerbated. Once removed from suicide watch, the risk of suicide could not realistically be prevented. If not in segregation, his Asperger Syndrome and physical conditions would make him vulnerable to bullying and intimidation, leading to protective segregation with the same problems. He would have no support network. The court found it very difficult to envisage that his mental state would not be gravely worsened over ten years in and out of segregation. Professor Kopelman’s evidence was that he would be at permanent risk of suicide. The court held that in this particular combination of circumstances it would be oppressive to extradite Mr Love.

The court emphasised that the high threshold for oppression was not readily surmounted but was satisfied in these particular circumstances. The court also emphasised that it would not be oppressive to prosecute Mr Love in England for the offences alleged, that where the forum bar prevents extradition prosecution rather than impunity should follow, and that the CPS must now bend its endeavours to his prosecution with assistance from United States authorities, recognising the gravity of the allegations and harm to victims. The court noted Mr Fitzgerald’s acceptance that if convicted and imprisoned in England, the experience would be significantly different with the support of his family meaning far lower risk of suicide and that his mental and physical condition would survive imprisonment without such significant deterioration, though it would be more problematic than for many prisoners. In short, the appeal was allowed and Mr Love was discharged because extradition was barred both by the forum provisions and because it would be oppressive, but prosecution in England should now follow.

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