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Legal Minds

27 September 2018 / by / in

Forum Bar – finally in force?

The ‘forum bar’ was introduced into the Extradition Act 2003 by the Crime and Courts Act 2013 and came into force in October 2013. It was enacted following Theresa May’s decision to block the extradition of Gary McKinnon to the US and to redress the perceived imbalance in the UK/US extradition arrangements.

The aim of the forum bar was to prevent extradition in circumstances where the alleged offences could be prosecuted in the UK and where it would not be in the interests of justice to extradite. In determining whether extradition would not be in the interests of justice, the 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. Those specific matters are:

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

Following the introduction of the forum bar all attempts to use it as a bar to extradition failed, leading many practitioners to believe that it was a bar in name only.

That changed with the High Court decision in Love v USA. In circumstances almost mirroring those found in the McKinnon case, Laurie Love was accused of hacking into various US Government agencies (including the US Army, US Federal Reserve, NASA and Missile Defence Agency). Also, like McKinnon, Mr Love suffers from Asperger’s. In allowing Mr Love’s appeal the court disagreed with the judge at first instance in two areas: (a) the prospect that Mr Love would be unfit to plead; and (b) the significance of the absence of a prosecutor’s view, although by themselves they would not have persuaded the court that the judge was wrong. What was found to be persuasive was the particular strength of Mr Love’s connection to his family and home circumstances, provided by the nature of his medical conditions and the care and treatment they needed. This was something which could not be provided in the US.

Following this judgement, there remained scepticism as to whether forum would now be an effective bar or, given the very particular set of circumstances in Mr Love’s case, this would be a one off victory.

Although Love was no doubt a significant breakthrough, perhaps a decision of greater importance was that of Scott v USA. This was a case which bore absolutely no similarities to that of Love and yet it succeeded on a forum argument.

Mr Scott’s extradition was sought by the US in relation to an allegation that, whilst employed by HSBC in London, he participated in a scheme to defraud an oil and gas exploration company, Cairn Energy Plc, in connection with a currency market transaction. Cairn had invited HSBC and other banks to bid for the right to execute a foreign exchange transaction by which it planned to convert approximately US $3.5 billion into sterling. Before providing HSBC with information about this proposed transaction, Cairn required it to enter into a confidentiality agreement by which HSBC agreed to use the information solely for the purposes for which it was provided. Mr Scott was given access to this information. HSBC were successful in winning the bid to execute the transaction. The allegation against Mr Scott is that, despite the obligation of confidentiality undertaken by HSBC, he and Mark Johnson devised a scheme to benefit HSBC (and ultimately themselves) at Cairn’s expense by “(a) using their insider knowledge of the details of the [transaction] to front-run that transaction, and (b) ramping the price of Sterling/Dollar to the benefit of HSBC, and to the detriment of [Cairn].”

In the case of Scott, the court held that, although market manipulation was damaging to the integrity of the United States’ financial markets, that was unquantifiable. The only quantifiable harm was caused to Cairn, a UK company. This was treated as a factor weighing heavily against extradition. While Love seemed to set a high threshold that needed to be passed before attaching significant weight to the requested person’s connection to the UK, on the face of the judgment, there was nothing particularly significant in Mr Scott’s connection to the UK other than that it was a strong one. Nonetheless, the court viewed his connection to the UK as an important factor weighing against extradition.

One of the most interesting features in this case was that there was no real prospect of prosecution in the UK. The SFO had issued a public statement that its investigation into the fraudulent manipulation of the forex market had closed as there was insufficient evidence for a realistic prospect of conviction. It further confirmed to Mr Scott, by letter, that he had not been a suspect in the investigation and would not be the subject of any future SFO investigation. The court held that the district judge was wrong to view this letter as relevant to the prosecutor’s belief as it was not commenting on the most appropriate jurisdiction, rather, it should be viewed as a statement of fact. The court went on to discuss that where “the practical reality appears to be that no investigation or prosecution is likely in this jurisdiction”, the availability of evidence and convenience of witnesses is an arbitrary consideration.

While it may be too early to view Love and Scott as an indication that the forum bar will be more readily applied by the courts, it has to be seen as encouraging that it finally seems to have some teeth.

Furthermore, these judgments together with the decision of District Judge Qureshi in USA v Stickland (where it was held the requested person’s extradition would be unjust and oppressive due to his physical and mental health and would amount to a breach of Article 3 and Article 8 ECHR), give some hope to practitioners that perhaps the balance of the UK/US extradition arrangement is shifting to a more equal position.

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