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A one-sided extradition treaty

Extradition arrangements between the US and the UK were agreed to in the 2003 Extradition Treaty, which came into force in 2007 after being ratified by both countries. The Treaty has become very controversial in the UK, particularly in cases that concern alleged computer crimes. In several such cases – like those of Gary McKinnon and Richard O’Dwyer – vocal public campaigns have made it impossible for extradition to occur.

Criticism of the Treaty is particularly acute in cases, like Lauri’s, where the US is seeking extradition despite any alleged actions taking place in the UK. In 2012, a Freedom of Information request confirmed that this dynamic only operates in one direction and that from January 2004 to March 2012, no-one had been extradited from the US to the UK for actions allegedly carried out on US soil.

A series of Parliamentary inquiries over the past five years has identified further concerns with the Treaty – particularly the inability of those facing UK-to-US extradition to address the evidence against them, which is available to those facing extradition from the US to the UK. In March 2012, the Home Affairs Select Committee, recommended “in the interests of justice” that where there are questions of forum – that is, whether a case would be better heard in the UK – those should be heard in open court.

Six months after that report, Gary McKinnon’s decade spent resisting extradition came to an end when Home Secretary Theresa May finally blocked his extradition to the United States on the basis of his mental health, telling Parliament that:

Mr McKinnon’s extradition would give rise to such a high risk of him ending his life that a decision to extradite would be incompatible with Mr McKinnon’s human rights.

McKinnon, who was accused of hacking into US military and NASA networks, claimed that he was looking for evidence of UFOs. He had also been diagnosed with Asperger’s Syndrome and depression, the symptoms of which were exacerbated by his fight against extradition.

In the wake of the McKinnon case, the British government acknowledged some of the concerns around extradition by introducing a “forum bar” in 2013, an additional statutory bar to extradition that can be invoked by a defendant to question whether the UK is in fact the proper place to hear a case. The effectiveness of the forum bar has been questioned by legal commentators and it has not really been tested in court.

Nevertheless, the conduct of UK prosecutors in Lauri’s case raises questions about whether there has been a genuine attempt to bring a case in the UK: on the face of it, that’s exactly the kind of behaviour the forum bar was intended to prevent.

Lauri Love has never been to the United States and his alleged actions took place while he was in the United Kingdom. Other countries refuse to extradite in similar cases. The UK public knows that the way US extradition requests are processed in the UK is one-sided and those concerns have been acknowledged by legislators. If Lauri has a case to answer, he should be entitled to see the evidence against him and mount a properly prepared legal defence, in front of a jury of his peers.

A political extradition

Lauri Love is a committed political activist and his alleged actions took place in the context of a protest against practices in the US criminal justice system. Noone has ever suggested that the actions Lauri is accused of were undertaken for personal gain.

Another concern about the extradition requests Lauri is facing is that his political motivations are explicitly noted in them – Lauri is described as a member of a group motivated by a desire to embarrass the United States government. It is a long standing principle of extradition law, from the very first British Extradition Act of 1870, that individuals whose offence is of a political character should not be extradited. The force of this ‘political exception’ has been watered down by subsequent agreements between the UK and the US, as well as within the EU, but it may still become pertinent in Lauri’s case.

Coordination between UK and US authorities

Nearly two years elapsed between Lauri’s initial arrest and the US initiating an extradition request against him. This rearrest came as a surprise to Lauri and his lawyers – it had been almost a year since Lauri’s police bail was ended on the grounds that it was disproportionate. There are several grounds for concern that there has not been a real attempt to pursue the allegations against Lauri Love in the UK.

In the UK, people who have been arrested are usually not named unless they are subsequently charged with a crime. This was not observed in Lauri’s case; in fact his first 2013 arrest was the subject of a press conference from the US Department of Justice. Not only did this publicity cause problems for Lauri and his family, it has made a UK prosecution more difficult. The NCA itself said that naming Lauri would have a “potentially disastrous effect on the prospects of a successful prosecution.”

In February 2014 refused to obey a Section 49 RIPA order, compelling him to surrender his encryption keys. This action carries the threat of a two-year prison sentence – and courts in the UK have convicted people for similar actions – but there has been no attempt to prosecute Lauri on this basis, or for any offenses under the Computer Misuse Act.

The status of the UK investigation against Lauri is unclear. The NCA still holds five of the devices it confiscated in summer 2013, which Lauri has now launched legal action to have returned to him. We know from the evidence the NCA has presented in that case that the organisation has shared disk images of the devices it cannot decrypt with US law enforcement. It is not clear whether the British authorities have asked the US to share information that might enable a case to be launched against Lauri in the UK.

Lauri has said that he believes that the prospect of being extradited to the United States has been used as a coercive tactic to force him to potentially incriminate himself in the UK. These would appear to be exactly the kind of circumstances that the ‘forum bar’ in UK extradition law was intended to address. As Lauri told the Guardian in October 2015:

It’s clearly problematic that as a direct consequence of there being insufficient evidence even to bring a charge in the UK, I am facing a fate that I consider worse than any possible sentence given in the UK.