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Love v United States of America: A Victory for Justice?

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About The Author

Peter Lennon (Consulting Editor)

Peter Lennon is a trainee solicitor at a Top 50 UK law firm, with experience in insurance, commercial disputes, and contentious probate. Prior to law, Peter studied History at Selwyn College, Cambridge, before completing the GDL and LPC at the University of Sheffield.

His main areas of interest are litigation, law reform, history and foreign policy. Outside work, Peter enjoys books, cooking, and pretending to know about football.

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This is a victory for justice. What makes Great Britain great is that we live in a place with wisdom and compassion.

Alexander Love

These were the words of the father of Lauri Love (L), the hacking suspect who the High Court last week ruled against extraditing to the United States in Love v USA [2018]. As this quote shows, this was undoubtedly an emotional case, not least for L and his family, who were fighting to ensure their son stayed on this side of the Atlantic. 

But for others outside L's immediate family, the emotional nature of the case may be more about politics than L himself. Indeed, a cursory glance at the BBC’s coverage of the case shows that L’s supporters – many of whom were packed outside the courthouse with banners and placards – have attempted to turn this case into a referendum on a wide variety of topics, including the Trump administration, the UK’s extradition arrangements with the US, and the practice of solitary confinement in American prisons. Furthermore, in line with wishes that L himself has expressed, another talking point that can be drawn out of the case is the position of neuro-diversity and autism in the criminal justice system.

Certainly, as this article examines, the particular facts of this case meant that it had the potential to be severely politicised and co-opted for a number of different causes. It is, therefore especially important to delve into the case from a legal perspective, and examine what it does and does not mean going forward.

The Facts: Love v USA

L is a 33-year-old British national with joint Finnish nationality. He suffers from Asperger syndrome as well as severe eczema, and has a history of depression and suicidal thoughts. All of this was uncontested both in the original Magistrates’ Court hearing and before the High Court.

It is very important to note that – contrary to the typical assumptions of a person with Asperger’s or any autism spectrum disorder – L does not suffer from learning difficulties, attention deficit, or language difficulties. He is, in general, highly intelligent and articulate, and has full mental capacity for the purposes of understanding his conduct and standing trial. The primary effect of his Asperger’s, in the High Court’s words, is to cause him:

[T]o become so absorbed in his interests that he neglects important areas of his life, such as his studies, and even his health.

His parents, giving evidence, informed the High Court that his obsessions have previously led him to go without eating or sleeping for days at a time, and to become depressed on finding that others do not share his dedication to a certain issue or subject.

Between October 2012 and October 2013, it is alleged that L – working with others – made a number of cyber-attacks on the networks of private companies and government agencies in the USA, including the US Federal Reserve, NASA, the Pentagon, and the FBI. This was allegedly done in order to steal and publicly disseminate confidential information found on those networks, including ‘personally identifiable information’. L’s motives for doing so were not discussed in the proceedings.

Federal indictments were returned in three American states where the agencies and companies were located: New Jersey, New York, and Virginia. L was arrested in October 2013 and released on bail pending investigation; he was re-arrested in July 2015 following an extradition warrant. A District Judge at Westminster Magistrates’ Court ruled in September 2016 (USA v Love [2016]) that he should be extradited; an order for his extradition to the USA was thus signed by the Home Secretary in November 2016, pending L’s appeal. This appeal was the matter at issue before the High Court in Love v USA [2018].

The Law: Bars to Extradition

Most of the relevant law in this case is contained in the Extradition Act 2003 (EA 2003), as amended by Schedule 20 of the Crime and Courts Act 2013. The EA 2003 contains a number of different grounds on which a person’s extradition can be barred; of relevance here are the grounds of ‘physical or mental condition’ found in Section 91, and the ‘forum bar’ in Section 83A. Both of these were advanced by L as reasons why the High Court should block his extradition; a third argument founded on L’s human rights was not considered by the courts, as it was essentially made redundant by their consideration of the two preceding arguments.

The ‘forum bar’ – introduced following the high-profile case of Gary McKinnon, another hacking suspect who also suffered from Asperger’s and depression – holds that extradition to a Category Two territory is barred if the extradition ‘would not be in the interests of justice’. A Category Two territory for the purposes of the EA 2003 is any state with which the UK has an extradition treaty which is not a member state of the European Union; Category One territories are EU countries which are therefore subject to the European Arrest Warrant, and have a much more clear-cut extradition process. Category Two territories, including the US, have historically been where extradition appeals become the most complicated, and the ‘forum bar’ represented one of several attempts to simplify this area.

Section 83A of the EA 2003 holds that an extradition is not ‘in the interests of justice’ if a substantial measure of the relevant activity (in this case, the hacking) was performed in the UK, and having regard to certain ‘specified matters’ (and only those matters), the court decides the extradition should not take place. The specified matters are:

  • The place where most of the loss or harm resulting from the extradition offence occurred;
  • The interests of the victims of the offence;
  • Any belief by a prosecutor that the United Kingdom is not the most suitable jurisdiction for the prosecution;
  • The availability of evidence to prosecutors in the United Kingdom (for example, evidence that was classified in the United States);
  • Any delay resulting from proceeding in one jurisdiction rather than another;
  • The desirability and practicability of witnesses giving evidence in one jurisdiction or another;
  • The defendant’s connections with the United Kingdom.

Crucially, the factors listed above are just that: factors. In any given case, one or more of these factors will likely fall in favour of extradition, and one or more will fall in favour of barring extradition. In L’s case, for instance, most if not all of the harm of the alleged offence occurred in the United States, which clearly favours L’s extradition. However, L has extremely close connections with the United Kingdom, which favours his being tried in the UK: indeed, the High Court noted that ‘connections’ refers not merely to citizenship, but to considerations such as family ties, daily routine, and ongoing medical treatment. In L’s case there were multiple connections including his doctors, but the foremost concern was his family, specifically his parents, who formed a substantial support network for managing his physical and mental conditions.

Ultimately, the presence of factors both in favour of and opposing extradition means this is ultimately a balancing act for the judge to make. This will be important to bear in mind when analysing the High Court’s decision in Love v USA [2018].

Section 91 of the EA 2003 is much simpler. If it appears to the judge that the physical or mental condition of the person concerned is such that extraditing them would be ‘unjust or oppressive’, the court must order the person’s discharge. Meanwhile, if the court feels the condition is likely to be temporary, it must adjourn the extradition hearing until the ‘unjust or oppressive’ criteria is no longer met.

L argued – and presented medical evidence – that being extradited would be oppressive because of his medical conditions. Even pre-trial, he would likely be detained by the American authorities in a manner that would inhibit his access to his current course of treatment, which was not insubstantial. His eczema would therefore perpetuate a ‘vicious cycle’, with stress aggravating the condition, and the eczema, in turn, causing self-consciousness which would lead to further stress. His Asperger’s meant he would struggle in social situations with both guards and fellow prisoners if kept in general detention. If he were segregated from the general prison population by reason of his Asperger’s, this would cause further stress. Ultimately, all of this would aggravate L’s depression, such that both parties and the court agreed that he would almost certainly attempt suicide before, during, or following transport to the US.

It is worth noting that – due to the availability of consecutive sentencing in the USA – L’s sentence if convicted would likely have been much higher (up to 99 years) in the US than in the UK for the same crimes. The length of the US sentence itself was not an issue. L’s reaction to the possibility - and the lack of any prior assurances of a shorter sentence or transfer to a UK prison - was. The prospect of spending the rest of his life specifically in a US prison was a major factor in the likelihood of L attempting suicide if extradited. His family and physicians felt that even an equivalent sentence in the UK would be much less likely to lead to a deterioration in his condition as he would have contact and visits from his family. L’s father, a prison chaplain, also attested to the more holistic approach to mental healthcare in British prisons as opposed to the evidence heard on the US approach.

The Decision

Some of the more politicised interpretations of this case, particularly by L’s well-meaning supporters, can be quickly and easily dispensed with. At no point was this case an indictment of the fairness of the US legal system (only a specific aspect of the prison system) or American over-reach in seeking L’s extradition.

As such, the High Court in Love v USA [2018] explicitly rejected the arguments that L would not receive a fair trial in the US, that his prospective sentence was in some way excessive due to the desire to “make an example” of L, and that it was improper to bring charges in three separate American jurisdictions. Contrary to what some may have feared, the death penalty was never sought despite available in Virginia. Most of the harm L had allegedly done was to American companies and agencies; it was therefore not unreasonable nor out of the ordinary for them to seek his extradition and trial. There was, however, a robust critique of the state of mental health services provided in the American prison system (with most of that criticism from the evidence of American experts).

Beyond this implicit criticism of the state of US prisons, there was very little explicitly political about this case. Many of the submissions of the interested party, Liberty – which sought to saddle the case with broader narratives about extradition to the US or current UK legislation – were rejected by the court. Nor was there any doubt as to the ethics or morality of L’s actions in hacking into US agencies; both the judges involved and L’s own legal team accepted that he could and should face prosecution for these actions in the UK if not in the US.

What was at issue here was the original handling of the case by the district judge in the Magistrates’ Court. In the restrained tone so typical of judicial criticism, the High Court – made up of Lord Burnett CJ and Ouseley J – were rather scathing of the original decision in USA v Love [2016].

As this was an appeal, it was not open to them to find that the District Judge’s decision was wrong. Instead, they found that she had erred in the weighting of factors with regards to the ‘forum bar’, giving some factors undue attention (particularly the inconvenience of American witnesses appearing in a English trial by video link) while failing to give the proper weight to others (particularly L’s close connections to the UK and the fact that there were no significant barriers to a prosecution in this country).

The High Court also held that the District Judge had failed to consider relevant evidence. Specifically, she had accepted without criticism the evidence of Dr Lyn – an administrator of the US Federal Bureau of Prisons (BOP) – to the effect that mental health services in American prisons were wholly adequate for a person in L’s condition. She had apparently ignored the evidence of Dr Kucharski – a former BOP psychologist who had worked in the very facilities L was likely to be detained in – that mental health services provided in US prisons were in practice nowhere close to what Dr Lyn described due to chronic understaffing. Other Americans with experience of the facilities, including lawyers and medical personnel, had given evidence to the same effect. The High Court in Love v USA [2018] also placed much greater significance on L’s close connections to the UK than the District Judge, namely his family who kept the worst of his mental condition in check.

The High Court in Love v USA [2018] also criticised how, in regard to the oppression argument, the District Judge essentially disregarded the evidence of L’s suicide risk as speculation when it should have been a real and present consideration. Her acceptance of the American government’s contention that preventative measures were in place that could prevent L’s suicide – namely, the so-called ‘suicide watch’ programme which, in practice, amounts to segregated confinement with supervision by a guard – was questioned. The High Court held that the District Judge had apparently placed extreme weight on a statement by Dr Kucharski that ‘no one commits suicide on suicide watch,’ while ignoring the assertions of several doctors that suicide watch was a preventative measure, not a treatment, and the segregation itself would cause irreparable harm to L’s health.

In addition, the District Judge had overlooked that L’s intelligence, research on the subject, and the lack of learning difficulties attached to his Asperger’s meant he would likely be able to evade whatever measures the prison authorities put in place, not least because the first step in these measures is self-reporting, so all L would have to do would be to conceal his desire to commit suicide when asked.

Given the true state of BOP mental health services, the High Court in Love v USA [2018] noted it was likely that L would either find a way to commit suicide, or suffer permanent harm from prolonged detention on suicide watch. The High Court therefore concluded that the District Judge had been far too ready to dismiss this risk and the finding of oppression that naturally arose from it. They found that L’s extradition should be barred on grounds of both oppression and the forum bar.

Conclusion: The Implications of Love v USA

So, what does the High Court’s decision in Love v USA [2018] mean? Truthfully, not much more than this: L will not be extradited to the United States, subject to any further appeal. This is in truth a minor case, concerning one man and a very limited precedent based on a specific set of medical conditions.

However, the case has been widely publicised since L’s initial arrest and brought into the public consciousness many of the issues involved, including the treatment of those on the autism spectrum, extradition arrangements, and popular perceptions of the US justice system – enhanced, undoubtedly, by the hostility to the current administration. While these are highly emotional and politicised issues, the High Court’s judgment in Love v USA [2018] touched very little on them. It was primarily concerned with the proper or improper consideration of evidence by a District Judge.

Despite this, it seems inevitable that Love v USA [2018] will be utilised as a political talking point in the future, particularly if it is appealed to the higher courts. Therefore, from a legal perspective, it will be important to keep in mind what this case is really about, and what it is not. Love v USA [2018] was not a sweeping victory for justice, nor a grand defeat. It was a victory for one man and his family, with a tacit acknowledgement that the US prison system has its failings, which should be news to noone. This makes for a much less interesting headline, but it is the truth.

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Tagged: Extradition, Human Rights, Rule of Law

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