Courage our network

Lauri Love’s forum bar precedent lives on

Stuart Scott becomes the second UK citizen to benefit from post-McKinnon extradition protections

It took until Lauri Love’s appeal ruling in February 2018 for the protections introduced after Gary McKinnon’s extradition case in October 2013 to actually help anyone. Today the High Court in London has ruled for the second time this year that it would not be in the interests of justice for a British defendant to be surrendered to the US justice system.

The facts of Stuart Scott’s case are very different from Lauri’s  — Scott, the former head of Currency Trading at HSBC Holdings Ltd, was facing wire fraud charges in the United States, where his former boss had already been tried and found guilty (an appeal is pending) — but today’s ruling does give us some clues as to how important Lauri’s victory is likely to be.

Lauri won his appeal on forum bar grounds as well as on the basis that extradition would be “oppressive”, given the inevitable impact of the US carceral system on his physical and mental welfare. At the time, some legal observers questioned whether many defendants would be able to marshal the kind of evidence about long-term health issues that Lauri’s legal team did on his behalf. Now we have a forum bar ruling that has been decided in the defendant’s favour not due to life-threatening welfare needs but on the basis of a settled family base and caring responsibilities in the UK:

The appellant is a British citizen, resident and domiciled here. He was the sole carer for his children who are also British citizens until he met his current wife, who was widowed with two children. He is the stepfather to children. He and his partner face substantial personal pressures because of family illnesses which it is unnecessary to detail in this judgment. His entire life is and has been in the United Kingdom. He has no links to the United States, save for the fact that at the relevant time (but no longer) he worked for a bank conducting business internationally.”

As in Lauri’s case, the Lord Chief Justice has ruled that a defendant’s links to the UK and the location where the alleged activity took place should be regarded as “powerful factors against extradition.” That seems to indicate that Lauri’s precedent could go on to help more defendants than many expected.

Another important point of precedent in Lauri Love’s appeal ruling was the Lord Chief Justice’s finding the CPS’ failure to comment on Lauri’s case should be interpreted as a point against extradition. This has been revisited in the Scott ruling, in a way that works in favour of the CPS. However, a disclosed statement from the UK’s Serious Fraud Office that they had not investigated Scott and did not intend to was not found to weigh in favour of extradition because, as a statement of fact “It does not address the question of where it would be more appropriate for the appellant to be prosecuted.”

UK prosecutors, then, are still expected to make a formal statement if they really think an extradition should go ahead – something that we have previously said will probably make extradition requests in these cases less likely in future.

In Lauri’s case, US authorities were ultimately unable to appeal the High Court’s ruling as it would have made no difference to Lauri being able to stay in the UK. They have, however, indicated that they will appeal the Scott ruling, which relies solely on the forum bar.