On 26 January 2022, Mr Justice Swift dismissed a judicial review application by Autonomy founder, Michael Lynch, challenging the District Judge Snow’s refusal to extend the time permitted for the Secretary of State for the Home Department (‘SSHD’) to decide whether to order his extradition to the USA.
Lynch has been indicted on 17 counts of conspiracy to commit wire fraud, wire fraud and aiding and abetting between January 2009 and November 2018. The central allegation advanced by the US is that prior to sale of the Autonomy to Hewlett Packard (‘HP’), Lynch deceived HP about the true performance and value of the business. In addition to his extradition proceedings, Lynch is also awaiting judgment in a civil fraud suit, worth £3.3bn, in the Chancery division of the High Court.
The District Judge had ordered his extradition and sent the case to the SSHD for her decision in August 2021. Under section 99 of the Extradition Act 2003 (‘EA 2003’) the SSHD is required to make a decision within 2 months unless that period is extended by the District Judge under section 99(4). The SSHD can only refuse to order extradition for very limited reasons set out in section 93, namely (a) because the person concerned could be sentenced to death for the offence concerned; (b) because there are no specialty arrangements with the relevant country; (c) that the person concerned has previously been extradited to the UK, that the consent of the extraditing territory is required in respect of any further extradition, and that consent has not been given by the extraditing territory; or (d) the person was transferred to the UK to serve a sentence imposed by the International Criminal Court, that the consent of the Presidency of the Court is required before any further extradition, and such consent has not yet been given. None of these grounds appeared to apply to Mr Lynch. Nevertheless, the SSHD had been granted two previous extensions on the basis that she wished to consider the outcome of the High Court proceedings in which the judgment was said to be imminent because, as submitted by Mr Lynch, it might have an impact on specialty. However, the District Judge rejected the SSHD’s further request for an extension in November 2021 on the basis that she had not provided sufficient reasons. It was that decision that was judicially reviewed by Mr Lynch.
Grounds of Appeal
Lynch raised four grounds of challenge in his appeal:
- that the Judge’s conclusion on the application of section 99 of the EA 2003 was irrational;
- that the Judge took an irrelevant matter into account, namely his own opinion of whether there might be matters in the judgment in the Chancery proceedings relevant to the SSHD’s decision on specialty;
- that the Judge failed to give sufficient weight to the SSHD’s opinion that she wanted the opportunity to consider the judgment, and;
- that the Judge applied the wrong test in reaching his decision because he took account of the overall history of the extradition proceedings.
In Swift J ’s view, these four grounds of challenge gave rise to two key questions:
First, and for the purposes of grounds 2, 3, and 4, what test ought the Judge have applied when considering the SSHD’s request? Second, and for the purposes of ground 1, what were his reasons for refusing the SSHD’s application to extend the required period until March 2022?
Grounds 2 and 3
The Claimant argued that the outcome of a section 99(4) application should depend on only two matters: (i) has the application been made by the SSHD for a purpose that would facilitate the exercise of their function under section 93, and (ii) was the application a rational step for the SSHD to take? If the answers to these two questions is in the affirmative, then the District Judge must grant the application. The Claimant submitted that in denying the SSHD time to consider the pending judgment and its potential impact on her decision on extradition, the District Judge had applied the wrong test.
Swift J rejected these submissions, and held that it was for the District Judge, as primary decision maker, to decide whether a sufficient reason had been given for an extension request. Moreover, that such an approach was consistent with the general objective of the EA 2003, to deal with extradition requests promptly. Furthermore, although section 99(4) provided for some derogation from the practical limitation of a two-month timetable, it did not give the SSHD a wide margin to decide whether or not to keep within the required time period.
Swift J concluded that the District Judge’s decision came ‘nowhere near usurping’ any function of the SSHD, and that the failure of the application was attributable to the SSHD’s insufficient explanation as to why the pending civil fraud judgment was relevant, to justify an extension. Swift J noted that the District Judge had allowed a short extension of 3 weeks to allow the SSHD to formulate better reasons why she needed to wait for the civil judgment but she had not done so.
This ground formed part of the first question considered by Swift J, namely what test ought the Judge to have applied when considering the SSHD’s request? The Claimant argued that the District Judge was wrong to refer to ‘the passage of time’, and by doing so, applied an ‘interests of justice test’, which was not part of section 99.
Swift J rejected this submission and considered that the reference to the passage of time was itself no more than a passing reference. Furthermore, that it was not the ‘substantial explanation as to why the SSHD’s application failed’. Swift J held that the phrase ‘in the interests of justice’ was a formulation which gave the court latitude to consider circumstances bearing upon the situation before it to ensure that the proceedings are conducted fairly, which included the need to finish proceedings in good time.
Under this ground, the Claimant submitted that the District Judge was informed by the SSHD that the civil fraud proceedings might contain material relevant to potential arguments on specialty provided for under section 95. Specialty is the rule which prohibits an extradited person from being prosecuted for any offence other than for which their extradition has been granted.
In the Claimant’s submissions, the civil fraud judgment would be relevant to the SSHD’s decision on specialty because the allegations concerning Dr Lynch’s conduct made in each set of proceedings overlapped; and that “there is a real risk that the US prosecutor will seek to bring new charges or substantially alter the charges on the basis of the evidence that comes out of the trial”.
Swift J rejected these submissions and held that the District Judge was entitled to expect a clear explanation of why the extension was needed, and no such explanation was apparent from the SSHD’s reasons, stating that “neither the existence of a factual overlap between the Chancery proceedings and the criminal prosecution, nor the fact that there were witnesses common to both, readily provides the basis for representations that specialty would be a barrier to extradition.” Swift J also concluded that, even if the Claimant’s submission that the District Judge should only have enquired as to whether the SSHD’s request was rational, his ruling was still lawfully available to him given that the decision for the SSHD was simply whether appropriate specialty arrangements existed that met the requirements of section 95, which they did as set out explicitly in the UK/US Extradition Treaty.
If the SSHD were to order Lynch’s extradition, he can appeal the matter to the High Court, under section 103 of the EA 2003, and notice of application for leave to appeal would have to be given before 14 days from the day on which SSHD informed Lynch of their decision.
In addition, and if Lynch were to be unsuccessful in this appeal, then it would still be open to him to seek permission to appeal to the Supreme Court on a point of law of general public importance, under section 114 of the EA 2003.