The Forum Bar – a new lease of life?

Ben Lloyd

Ben Lloyd
6 February 2018

Yesterday Lauri Love won a famous victory in his on-going fight to resist extradition to the United States. In allowing his appeal, the High Court has breathed new life into the ‘Forum bar’, which hitherto had not prevented a single extradition despite being in force since 2013. Two areas of the judgment in particular are worth further reflection: (i) the absence of any belief expressed by a UK prosecutor as to forum; and (ii) the scope of a defendant’s ‘connections with the United Kingdom’.

The forum bar – brief history

Historically, the courts have not concerned themselves with ‘forum’. The question of the most appropriate place for a prosecution to be brought was one traditionally that has been for the relevant prosecuting authorities alone. This changed with the introduction in 2013 of the ‘forum bar’ into the Extradition Act 2003. However, despite the new bar, the Courts have hitherto been reluctant to halt extradition on the grounds of forum. This may be a result of an historical hangover: judges are perhaps understandably reluctant to interfere with prosecutorial decision-making. Indeed, despite high-profile campaigns seeking to bring the forum bar into force, there remained strong opposition to the principle too. The Scott Baker Review concluded that ‘prosecutors are far better equipped to deal with the factors that go into making a decision on forum than the courts.’

The High Court to date has also been reluctant to interfere with first instance decisions on forum. It made it clear in Astrakevic v Prosecutor General’s Office, Republic of Lithuania [2015] EWHC 131 (Admin) that where a judge’s value judgment on whether the extradition would not be in the interests of justice was challenged, an appellate court would not ordinarily reassess all the factual issues or the weight to be given to the various factors.

It may be that in the light of yesterday’s decision the Courts will now pay closer attention to the Forum bar.

Lauri Love

Lauri Love is accused in the United States of a series of deliberate and sustained cyber-attacks on the computer networks of government agencies and private companies. The allegations are serious. There was no dispute in the extradition proceedings that forum was engaged in that a ‘substantial measure’ of Mr Love’s ‘relevant activity’ was performed in the United Kingdom (section 83A(2)(a) of the 2003 Act). The District Judge rejected Mr Love’s arguments in relation to the interests of justice test (section 83A(3)). She also ruled that extradition would not be oppressive by reason of Mr Love’s mental health. These grounds were renewed on appeal, with the High Court concluding that the District Judge was wrong in her decision on these issues. This post focuses only on the Forum bar.

Two aspects of the High Court’s decision on Forum are of particular note and no doubt will be of wider interest to practitioners.

Prosecutor’s belief

Hitherto, the absence of a ‘prosecutor’s belief’ as to whether the United Kingdom is not the most appropriate jurisdiction has been treated by the Courts as a neutral factor, i.e. counting neither in support of, or against, the operation of the forum bar. In Shaw v Government of the United States of America [2014] EWHC 4654 (Admin), the High Court held this factor would only be relevant if a belief had been expressed: ‘The judge has to ask whether there is a belief; but if there is not, then he cannot have any further “regard” to this factor.’ (§48)

This approach has not survived Mr Love’s case, with the High Court concluding that the District Judge was wrong to treat the absence of any prosecutor’s belief as a neutral factor. On the contrary, the absence of any such belief was a factor that favoured the appellant’s case. As the Court held, ‘this silence is a factor which tells in favour of the forum bar’ (at §34).

This aspect of the Court’s decision is likely to pose questions for prosecutors going forward. Often, there is no prosecutor’s belief because there has been no investigation into any allegations in the United Kingdom. However, the decision in Love means that prosecutors are going to have to re-consider their approach: given the remarks of the High Court, domestic prosecutors are going to have to take more of an interest in extradition cases where forum is raised. Far from being a neutral factor, the lack of any involvement of a domestic prosecutor could be taken as a factor in favour of the operation of the forum bar.

Furthermore, prosecutors may feel that in appropriate cases greater use should now be made of prosecutor’s certificates, the effect of which is to require a the District Judge to conclude that extradition is not barred by reason of forum. However, such certificates again require greater involvement of domestic prosecutors, who in the majority of forum cases will not have had any prior involvement.

From a defendant’s perspective, the decision in Love is good news: the absence of the involvement of a domestic prosecutor in an extradition case is not uncommon; however, going forward such a position may well support a defendant’s case. Courts are going to have approach forum on a different basis and prosecutors will now need to reconsider their whole approach to the bar.

Connections to the United Kingdom

More good news for defendants. The Court rejected the notion that the concept of ‘connection’ to the UK was a narrow one. Rather, connection is ‘closer to the notion of ties for the purposes of bail decisions’, whilst not being so ‘elastic’ as to replicate Article 8 of the Convention (§40).

Again, the Court’s emphasis on this aspect of the interests of justice test is noteworthy. Hitherto judges have had a tendency to treat the ‘connections’ limb as a bit of an afterthought, and rarely (if ever) capable of outweighing the other aspects of the bar.

In the light of the decision in Love, judges will no doubt pay closer attention to this important factor.

Conclusion

The High Court in Love has breathed new life into the forum bar. Domestic prosecutors are going to have to engage more closely and judges are going to have to pay greater attention to a defendant’s connections to the UK.

After all, the High Court has issued a timely reminder to practitioners and Courts: the underlying aim of the forum bar is to ‘prevent extradition where the offences can be fairly and effectively tried here and it is not in the interests of justice that the requested person should be extradited.’ (§22)

 

 

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