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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.

Australian national radio’s Law Report features Lauri Love

Lauri Love is interviewed on ABC’s Law Report this week, on the subject of extradition law and cases of Gary McKinnon, Lauri Love and Gary Davis, who is currently taking his appeal against US extradition through the Irish courts.

The programme explores the unusual nature of cybercrime cases for extradition law: the ability of countries like the US to claim concurrent jurisdiction and the often vulnerable nature of the defendants who get caught up in these cases. Noting the importance of the High Court’s ruling in Lauri’s case, Rowan Nicholson of Sydney University explains the likely impact for extradition in other countries.

I can see more and more of these cases. The US in particular is quite strict, quite firm – some might say harsh – in its efforts to prosecute and extradite individuals accused of these crimes.

Other countries may also wish to adapt their extradition legislation to take account of some of the issues that arose in Mr Love’s case.

Listen back to the full programme here

Victory: High Court rejects Lauri Love extradition

In a major victory for Lauri Love, the High Court has approved his appeal and quashed his extradition. As Courage Case Director Naomi Colvin said, “This ruling is a massive victory for free expression online, for the fair treatment of neurodiverse people and for those of us who have drawn attention to the dire treatment of hackers and information activists in the United States.”

The High Court judges disagreed with the District Court on whether the forum bar should apply in Lauri’s case and on the prospect of proper medical care to treat the likely risk of suicide should Lauri have been sent to a US prison.

Regarding the forum bar, the judges found compelling the argument that if extradited, Lauri’s mental and physical health would deteriorate such that he could become unfit to plead. The judges also emphasized the absence of an argument from the UK prosecutor as to whether Lauri could be tried in the UK. Where the District Judge found this lack of argument to be neutral, the High Court saw it in Lauri’s favor: “In view of the fact that the CPS did not express any view adverse to the prosecution of Mr Love in the United Kingdom on any of the grounds potentially available to it, this silence is a factor which tells in favour of the forum bar, though it may readily be outweighed by other factors.”

The High Court also significantly departed from the District Judge’s handling of the issue of suicide. The ruling states, “We come to the conclusion that Mr Love’s extradition would be oppressive by reason of his physical and mental condition. In this difficult case, and in the course of an impressive judgment, we conclude that the judge did not grapple with an important issue.”

The judges felt that the District Judge leaned too heavily on testimony to the effect that no prisoner commits suicide while on suicide watch, the US prison’s term for 24/7 monitoring of at-risk inmates. The High Court argued, “Suicide watch is not a form of treatment; there is no evidence that treatment would or could be made available on suicide watch for the very conditions which suicide watch itself exacerbates.”

This ruling marks the first successful use of the forum bar, created in the wake of Gary McKinnon’s case, to protect a UK citizen from being unduly extradited to the United States. It also throws much-needed light on the US prison conditions, so lacking in adequate medical care as to put suicidal inmates at further risk.

Finally, the judges noted that it is now on the CPS to endeavor to try Lauri Love in the United Kingdom. The CPS has 14 days to find new arguments with which to appeal this ruling. Courage will continue to support Lauri Love and his family until his situation is resolved.

Courage statement on Lauri Love’s extradition ruling

Courage’s Case Director Naomi Colvin responded to today’s Lauri Love extradition ruling:

This is the result Lauri and his family have spent four years waiting for. This ruling is a massive victory for free expression online, for the fair treatment of neurodiverse people and for those of us who have drawn attention to the dire treatment of hackers and information activists in the United States. This ruling will be taken as a comment on the growing international isolation of the US under the Trump administration, and rightly so.

I am absolutely thrilled for Lauri, his family, friends, his legal team and all the supporters who have worked so hard to bring us to this point. As we demonstrated at appeal, Lauri was only ever in this position because he had been marked out for unfair, discriminatory and vindictive treatment. With any luck, today’s ruling will mean that prosecuting authorities finally start respecting the clear will of the British public: we do not extradite our geeks to face medieval punishment in the United States.

The Courage Foundation will continue to support Lauri Love and his family until Lauri’s legal situation is resolved.

 

 

 

 

Lauri Love extradition ruling: Monday, 5 Feb

The ruling on Lauri Love’s extradition appeal will be handed down at 11am on Monday, 5 February 2018, at Court 4, Royal Courts of Justice in London. The High Court’s decision could determine the future of the forum bar, in addition to Lauri Love’s personal fate.

Last November, the court heard from human rights group Liberty, who said “If someone is accused of having committed a crime here in the UK, this is where they should stand trial.”

Furthermore, former top prosecutor Lord MacDonald told the court that extradition is not the norm, and that Lauri Love has been singled out for particularly harsh treatment.

Courage will live-tweet Monday’s proceedings. Please direct all media inquiries to courage.contact@couragefound.org

See our Lauri Love press pack, including a timeline of important dates:

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Former top prosecutor confirms Lauri Love has been singled out for unusual treatment and extradition is not the norm

  • Lauri Love outside the courtroom | Getty Images | Jack Taylor

    Evidence from Former Director of Public Prosecutions confirms a “policy bias” towards prosecuting cybercrime cases in local courts. “There appear to be sound and obvious policy grounds for a particular bias towards prosecuting vulnerable defendants locally.”

  • Since Lauri’s extradition hearing last summer at least three cases involving US computer systems have been successfully prosecuted in the UK.
  • Court hears new information about the deteriorating conditions in the US federal prison system

New evidence for Lauri Love’s appeal against extradition includes a statement from Former Director of Public Prosecutions, Lord MacDonald, confirming that Love should have had a trial at home.

Lauri Love faces extradition to the United States, and a potential 99-year prison sentence for his alleged participation in the series of online protests that followed the death of American internet pioneer Aaron Swartz.  The appeal, which concluded this morning, was heard by the Lord Chief Justice, Lord Burnett of Maldon and Justice Ousley at the Royal Courts of Justice in Central London.

MacDonald’s evidence comments on a schedule of domestic cybercrime prosecutions produced by Lauri Love’s legal team:

“I have been asked to comment on practice in relation to the prosecution of computer hackers who target United States computer systems from the United Kingdom.

“In my experience, there has been a general practice of prosecuting such hackers in the UK in the majority of cases. The notable exception was Gary McKinnon, whose extradition was eventually halted by the Home Secretary….

“The Schedule reflects the policy bias to which I have referred above, demonstrating the fact that almost all such cases have historically been dealt with by English or other relevant local courts abroad. This seems particularly to occur in the case of vulnerable defendants. Again, there appear to be sound and obvious policy grounds for a particular bias towards prosecuting vulnerable defendants locally, where it is possible to do so.”

Extradition is not the norm – a trial at home is the norm

Since Lauri’s extradition hearing in the summer of last year, British courts have heard at least three computer crimes cases that involve US servers, including military and government computer systems. All have been successfully resolved without the initiation of extradition proceedings.

In June 2016 an unnamed teenager from Plymouth was convicted for hacking a range of international servers including Seaworld in Florida, China’s Security Ministry and the Thai Department of Agriculture and made subject to a youth rehabilitation order for two years.

In June 2017, Sean Caffrey of Sutton Coldfield admitted hacking into the US Department of Defense. He was given a suspended sentence of 18 months at Birmingham Crown Court in September.

Finally, in October, Coalville resident Kane Gamble appeared at Leicester Crown Court, pleading guilty to 10 charges of attempting to hack into the computers of members of the US Government, the CIA, and the FBI. Gamble is due to be sentenced at Leicester Crown Court on 15 December.

New detail about US prisons and cybercrime prosecutions under Trump

In 2013 Britain’s parliamentarians introduced the forum bar in order to protect vulnerable defendants from extradition, after the ultimately successful decade long campaign to keep Gary McKinnon in the UK. McKinnon’s case became the subject of intense public pressure due to his diagnosis of Asperger syndrome and the likelihood that the prospect of a coercive plea bargain and detention in a US federal prison would have a devastating impact on his physical and mental welfare.

Evidence presented to the court describes how US prosecutorial conduct has become even more aggressive under the Trump Administration. In a statement, US computer crimes attorney Tor Ekeland reveals for the first time the impact of Jeff Sessions’ 10 May 2017 memo to prosecutors, in relation to the ongoing case of Justin Shafer in Texas:

“In a formal meeting in a pending cybercrime case, one Assistant U.S. Attorney cited the Sessions Memo in indicating he would seek the harshest sentence possible. This U.S. Attorney read the Sessions Memo to require he seek a consecutive, rather than the usual concurrent, sentence for the charges.

“This represents a troubling change in the United States’ criminal justice system, and profoundly increases Mr. Love’s risk of receiving an unjust, cruel, and unfairly punitive sentence if extradited and later convicted.”

If extradited, Lauri Love is likely to be remanded in one of two notorious New York facilities, the Metropolitan Correctional Centre (MCC) or the Metropolitan Detention Centre (MDC) in Brooklyn. Expert witnesses agree that Love is highly likely to find himself on suicide watch on admission to one of these institutions, which lack the medical and psychological facilities.

The court heard shocking new evidence about conditions in these prisons. Late last year, a Brooklyn judge refused to send a convicted woman to the MDC because of its “unconscionable” conditions. The facility is currently the subject of a major class action lawsuit, evidence from which has been introduced into the appeal. [5]

In one of these statements, former New York Senator Pedro Espada Jnr, who is currently two thirds of the way through a three-year sentence for embezzlement, describes his experience as a volunteer “suicide watch companion” at the MDC. There he was witness to multiple incidents of “inhumane treatment and conditions” involving inmates with serious mental illnesses. In particular, Espada describes a distressing incident where a “severely mentally ill” Hispanic man was left in filthy conditions for a seven-day period, despite having open wounds all over his body.

Lauri Love’s appeal is argued by Edward Fitzgerald QC and Ben Cooper, both of Doughty Street Chambers, who are instructed by Kaim Todner Solicitors. Liberty are intervening in the appeal. The one and a half day hearing in front of the Lord Chief Justice, Lord Burnett of Maldon and the Hon. Mr Justice Ouseley has now concluded. Judgment has been reserved.