The appellant appealed against the decision of District Judge Tempia to order his extradition to the United States to face trial on charges relating to alleged computer hacking with associated demands for money and the dissemination on the internet of personal medical records.
At his extradition hearing the appellant submitted that the ‘forum bar’ to extradition pursuant to the Extradition Act 2003, s.83A should operate to prevent extradition on the basis that the interests of justice favoured prosecution in the UK. The judge was satisfied that the threshold requirement in s.83A(2)(a) was met because there was no doubt that a substantial measure of the appellant’s relevant activity took place in the UK. She then dealt with the matters set out at section 83A(3) and on balance, concluded that the appellant’s extradition to the US was in the interests of justice.
Grounds of appeal
The appellant’s grounds of appeal were that the DJ erred in conducting this balancing exercise, in particular:
- She failed to give sufficient weight to the fact the US has said, in terms, that the evidence can be provided to the UK;
- Her conclusion that up to fifteen people may have to give evidence weighs in favour of extradition is unsustainable;
- Her conclusion that the interests of justice were met by “all prosecutions taking place in one jurisdiction” ignored the fact that this case involves only one prosecution and it is submitted that construing factor (f) as referring to cases involving a single prosecution would enable the ‘double counting’ of the fact that the witnesses are located in the US which was already counted under factor (b) (interests of the victims); and
- The statement of the UK prosecutor established very little. The observations relating to the extradition request did no more than restate the statutory criteria.
Court’s decision and reasoning
The court was no persuaded by any of the above grounds and dismissed the appeal.
- On grounds one and two, the court rejected the submission that the judge at first instance had failed to appreciate that the evidence could be made available to the CPS, as having no substance. The judge had referred to it as a factor that weighed against extradition. The court accepted that while it is commonplace for witnesses to give evidence via video-link and for there to be a body of agreed written evidence, the victims of crime have an interest in proceedings that goes beyond the narrow confines of being a witness. They should, if they wish, be able to attend the trial and the judge cannot be faulted for having considered this to be a factor which weighed in favour of extradition.
- In respect of ground three, the court conceded that the judge may not have fully explained her approach to this factor in her judgment, but such a textual criticism was insufficient to make out the ground of appeal.
- Moving to the final ground of appeal, the court said that, although entitled to consider other factors, it would be very odd indeed for a prosecutor to express their belief without reference to the statutory factors. The question of how much weight to give to the prosecutor’s expressed belief is a matter for the judge. The court concluded that the judge’s ruling was detailed and clear; the individual criticisms of her reasoning were not established; and her judgment could not be stigmatised as wrong.