Senior District Judge Emma Arbuthnot, the Chief Magistrate, sitting at Westminster Magistrates’ Court on 28 January 2021, rejected the arguments put forward by Arif Naqvi’s legal team against his extradition and ordered the case to be sent to the Secretary of State for a decision as to whether he should be extradited. Mr Naqvi, the founder and former Chief Executive of the private equity group Abraaj, is sought to stand trial in the US on 16 counts of fraud and money laundering relating to the 2018 collapse of Abraaj.
Lawyers for Mr Naqvi, a Pakistani national resident in London, argued that his extradition should be barred by reason of forum, that is to say that a substantial measure of the offending took place in the UK and, having regard to the specified matters relating to forum, it would not be in the interests of justice for extradition to take place; and also on the grounds that extradition would breach his rights under Articles 3 and 6 of the ECHR, which prohibit torture and inhuman or degrading treatment or punishment, and guarantee the right to a fair trial, respectively.
Rejecting the defence’s argument that the forum bar applied in this case, the court found that a substantial measure of Mr Naqvi’s alleged criminal conduct was not performed in the UK. In particular, the relevant representations made to investors were not made in this jurisdiction and most of the loss suffered was in the US. Notwithstanding this finding, the court went on to consider the specified matters in section 83A of the Extradition Act 2003 relating to the interests of justice. The court acknowledged the disruption to his ongoing medical treatment in the UK that would result from his extradition, but found, in particular, that the majority of the harm and loss suffered took place in the US, that there likely would be delay were the trial to take place in the UK, and that it was desirable to try Mr Naqvi in the same jurisdiction as his co-accused, who had already entered into a plea deal with the prosecution. Therefore, it would not be in the interests of justice to bar extradition.
As to the risk of that Mr Naqvi’s conditions of pre-trial detention in the US would breach his Article 3 rights having regard to his agreed physical and mental health conditions, the court relied on the decision in Hafeez v USA  1 WLR 1296, in which the Divisional Court said, that the test in relation to Article 3 is a high one, with “strong evidence required to establish a violation of Article 3 by reference to prison conditions when the requesting state is a well-established democratic country.” Whilst the proposed detention facility in this case has many of the faults of large prisons, the conditions of the facility’s mental health unit are reasonable, and the court held that the cumulative conditions were insufficient to cross the high threshold of an Article 3 breach.
The test for refusing to order a requested person’s extradition on Article 6 grounds is set out in Soering v UK (1989) 11 EHRR and requires the requested person to demonstrate a real risk that he will suffer a flagrant denial of justice in the requesting state. Rejecting the defence’s arguments on this ground, the court did not accept that Mr Naqvi would, if extradited, be prevented from properly engaging in the trial process either by preparing or instructing his lawyers. There was no risk at all of an Article 6 breach, let alone a real risk.
This judgment provides another interesting example of the application of the forum bar, the limits of prosecution assurances on bail and the treatment of evidence of mental health conditions by the court.
For the forum bar to apply, a ‘substantial measure’ of the requested person’s ‘relevant activity’ must have taken place in the UK. The Senior District Judge adopted a narrow interpretation of both of these terms. Section 83A(6) of the Act defines ‘relevant activity’ as ‘activity which is material to the commission of the extradition offence and is alleged to have been performed by [the requested person]’. Despite the defence’s efforts to persuade the court to look at Mr Naqvi’s and Abraaj’s activities in the round, the court found that “it is the activity set out in the request that must be assessed” and concluded that whilst a number of administrative functions relating to the funds in question took place in London, a substantial measure of the relevant activity was not in the UK. The ‘substantial measure’ test is intended to mirror the test for establishing domestic, geographical jurisdiction as set out in R v Smith (Wallace Duncan) (No. 4)  EWCA Crim 631. Accordingly, if a UK court could, in theory, have jurisdiction over the ‘relevant activity’ then the forum bar is in play. The Senior District Judge did not refer to Smith so her narrow interpretation leaves open the possibility that the ‘substantial measure’ test could be applied differently in the domestic and extradition contexts, which would be contrary to the intended operation of the legislation.
In assessing the strength of Mr Naqvi’s connection to the UK, one of the specified matters in relation to the interest of justice in section 83A of the 2003 Act, the court had regard to his ‘medical connection’, namely his ongoing receipt of medical treatment in this jurisdiction and the relationship he has built up with those providing his treatment. In Love v US  EWHC 172 (Admin), the Divisional Court provided a non-exhaustive definition of ‘connection’ in the context of this provision, concluding that it would not normally extend to cover medical treatment, unless there was something particular about the nature of the treatment that connected the individual to treatment in the UK. It would appear from this decision, that a longstanding relationship with doctors providing treatment for a mental health condition may create such a connection for the purpose of considering the interests of justice test.
The US authorities provided an assurance that bail would not be opposed if Mr Naqvi was returned to the US and subsequent assurances in respect of Mr Naqvi’s pre-trial detention, in the event that, despite that assurance, he was remanded in custody. The court accepted that the US assurance was given in good faith and was binding, but noted that the no assurance can bind a judge in a state where there is a separation of powers and, therefore, there was a risk that the judge before whom Mr Naqvi presents in New York may take a different view of bail to that taken by the prosecution. In light of that residual risk of detention, the court was obliged to go on to consider whether the assurances given in respect of the potential detention facility ensured compliance with Article 3.
The decision to order Mr Naqvi’s case to be sent to the Secretary of State for her decision on extradition comes on foot of the recent decision to discharge Julian Assange on the grounds his mental condition was such that it would be oppressive to order his extradition. The court in the instant case accepted the evidence that Mr Naqvi suffers from poor physical and mental health and that he poses a risk of suicide, and whilst it was not submitted that his risk of suicide met the ‘oppressive’ threshold under section 91 of the 2003 Act as in the case of Assange, it is clear from this decision that requested persons continue to have a high hurdle to surmount if they are to successfully resist extradition, particularly to a modern, Western democracy, where evidence of mental or physical health are relied upon.
Many of the forum arguments raised in these proceedings are likely to be revisited before the court in February 2021, when the extradition hearing of former Autonomy CEO, Mike Lynch, is scheduled to commence. Mr Lynch, faces charges of securities and wire fraud in the US, founded on allegations he fraudulently inflated Autonomy’s true value when it was sold to Hewlett Packard (‘HP’). As in Mr Naqvi’s case, any consideration of the forum bar will be fact-specific. Thus, in considering Mr Lynch’s case, the court will closely scrutinise the particulars of the conduct alleged and assess, on the evidence before it, whether a substantial measure of that conduct took place in the UK, in particular any representations alleged to be fraudulent. Any assessment of the nature of Mr Lynch’s connections to the UK, again, will be fact-specific. It is notable that in Mr Naqvi’s case there had been no corresponding investigation by UK authorities and as such there was before the court no expressed view of a UK prosecutor as to the appropriateness of the UK as the prosecuting jurisdiction. Contrastingly, in the case of Mr Lynch, the Serious Fraud Office (‘SFO’) began investigating HP’s claims in 2013 but the investigation was closed in January 2015, with the SFO concluding that, on the information available, there was insufficient evidence for a realistic prospect of conviction. That would suggest that the SFO, at least initially, considered that the ‘substantial measure’ test was met so it had the jurisdiction to investigate even it chose not to prosecute.