Still a ‘Special Relationship’? The ‘forum bar’ and the development of the extradition relationship between the UK and the USA – a two-part blog series

Part One – What is the forum bar?

This blog is part one of a two-part blog series. In this blog we discuss the ‘forum bar’ to extradition and the relevant case law of extradition proceedings, following a request from the USA to the UK, in which the forum bar has been successfully argued.

It has now been over ten years since the introduction into English law of the forum bar to extradition, following a number of high-profile cases involving extradition requests made by the USA to the UK.

While reported cases in this jurisdiction in which the forum bar has been successfully argued remain relatively scarce, in recent years there have been some significant decisions.

In this blog series we discuss those decisions, alongside extradition data provided in response to FOI requests submitted by this firm, and to Parliamentary questions. We consider what they can tell us about the current extradition relationship between the UK and the USA.

What is the forum bar to extradition?

Section 79 of the Extradition Act 2003 (the ‘Act’) sets out a number of ‘bars’ to extradition that must be considered by the courts in extradition proceedings involving a category 2 requesting state, such as the USA (s.11 of the Act sets out the bars to extradition for category 1 territories, which are outside the scope of this blog). If the court finds that any of the bars apply, then the requested person (“RP”) must be discharged.

One such bar is the forum bar, which was introduced into the Act by the Crime and Courts Act 2013 and came into force in October 2013. Its introduction followed widespread criticism of a perceived imbalance in the extradition arrangements between the USA and the UK in several high-profile extradition cases.

Section 83A(1) of the Act provides that the extradition of the RP to a category 2 territory is barred by reason of forum if the extradition would not be in the interests of justice.

Section 83A(2) states that the extradition would not be in the interests of justice if the judge —

(a)  decides that a substantial measure of RP's relevant activity was performed in the United Kingdom; and

(b)  decides, having regard to the specified matters relating to the interests of justice (and only those matters), that the extradition should not take place.

The specified matters are set out in s.83A(3)(a)–(g). The judge must decide the question under s.83A(2)(a) first and then, if the judge finds that a substantial measure of the RP’s activity was performed in the UK, they must then go on to decide the interests of justice question under s.83A(2)(b), having regard to each of the specified matters individually.

For the purposes of s.83A(2), “RP’s relevant activity” is defined as “activity which is material to the commission of the extradition offence and is alleged to have been performed by the RP”.

It is important to note that the test under the forum bar does not look at whether the appellant should be tried in the requesting state or in the UK.

What are the specified matters?

The specified matters are set out in in s.83A(3)(a)–(g):

(a) “Place”

(b) “Interests of the victims”

(c) “Prosecutor’s belief”

(d) “Availability of evidence”

(e) “Delay”

(f) “Trials in same jurisdiction”

(g) “The RP’s connection to the UK”

Has the forum bar been successfully argued for any person requested by the USA?

At the time the forum bar was introduced, some commentators doubted whether the courts would ever refuse an extradition request on the basis of forum. It was not until 2018 that the forum bar was successfully argued in extradition proceedings following a request from the USA. There are now five reported cases in this jurisdiction in which the forum bar has been successfully argued following a request from the USA:

1) Love v United States of America [2018] EWHC 172 (Admin)

This case involved allegations that the RP had participated in a series of cyber-attacks on the computer networks of private companies and USA government agencies, to steal and publicly disseminate confidential information. Relevant factors included: 

• Although the victims would be inconvenienced by a UK trial, their interest in having a trial at all was more important. There was a real risk that, if extradited, the RP would become unfit to stand trial because of mental health issues. That told against extradition being in the victims' interest because there risked being no trial at all;

• The absence of any prosecutor's belief that the UK was not the most appropriate jurisdiction. Silence told in favour of the forum bar, though it could be outweighed by other factors; and

• There was particular strength in the RP’s connection to his family and home because of his medical conditions, vulnerabilities and the stability provided by his parents.

2) Scott v United States [2018] EWHC 2021 (Admin)

This case involved allegations that the RP and another had defrauded a corporate client in relation to a $3.5 billion dollar-to-sterling foreign exchange transaction.

Relevant factors included:

• The majority of the harm caused by the RP’s alleged conduct had been in the UK, and the RP had no connection whatsoever to the requesting state.

3) United States v McDaid [2020] EWHC 1527 (Admin)

This case involved allegations that the RP had participated in a scheme to convey false and misleading information to law enforcement agencies in the USA, which had caused armed response officers to attend an address at which a hostage was said to be held (a practice known as ‘swatting’).

Relevant factors included:

• Evidence necessary to prove the offences could be made available in the UK;
• A prosecution in the UK would be unlikely to result in delay;
• Co-accused had already been convicted and sentenced, so there was no prospect of a joint trial; and
• The RP had a very close relationship with his family and their support would not be available if he were extradited to the US.

4) United States v Osborne [2022] EWHC 35 (Admin)

This case involved allegations that the RP had committed two offences of sexual exploitation of a minor child, one of coercion and enticement of a minor child and one of receipt and distribution of child pornography.

Relevant factors included:

• Evidence necessary to prove the offences was available in the UK and some of this evidence had already been put to the RP at his police interview;
• The victims could give live evidence in the UK by way of video-link from the US;
• The UK investigation had already been completed in 2017 and a file submitted to the CPS for a charging decision; and
• The RP had strong connections to the English jurisdiction and no connection whatsoever to the requesting state. His family life and his employment were entrenched in the UK.

5) Hamilton v United States [2023] EWHC 2893 (Admin)

This case involved allegations that the RP had conspired to commit money laundering and wire fraud related to the bogus cryptocurrency ‘OneCoin’. The global fraud is said to have caused three and a half million victims to lose over $4billion. Relevant factors included:

• The majority of the harm caused, and intended to be caused, by the RP’s alleged conduct had been in the UK (he had transferred money through UK business and personal bank accounts and did not appear to have had control of any USA bank accounts), which militated in favour of prosecution in the UK rather than the USA;
• Evidence necessary to prove the offences could be made available in the UK;
• There were victims worldwide, and so their interests did not weigh significantly in either direction; and
• The RP had strong connections to the English jurisdiction and no real connection to the requesting state. His family life was entrenched in the UK.

Part Two – The future of the forum bar

In this blog we discussed the forum bar to extradition and the cases in which the forum bar has been successfully argued.

In part two we will discuss the future of the forum bar and analyse data which has been provided in response to FOI requests submitted by this firm, and to Parliamentary questions, which reveal the number of extradition requests made and the number of extraditions ordered between the UK and the USA.

Further information

For more information on any of the issues covered in this blog, please contact Tom Surr.

 

about the author

Tom Surr is a trainee solicitor at Kingsley Napley and is currently in his third seat with Criminal Litigation.

Tom joined Kingsley Napley in October 2019 as a paralegal in the Criminal Litigation department and was promoted to Head Paralegal in March 2020. He worked on matters including criminal defence and police investigations, white collar and financial crime, international crime and extradition, and investigations.