On 5 February 2018, alleged computer hacker, Lauri Love, successfully appealed to the UK High Court of Justice (UKHCJ) against a decision for his extradition to the US. This was a significant decision in the area of extradition law because the UKHCJ placed great emphasis on Love’s personal circumstances to prevent his extradition.
Love was accused of conducting a number of cyber-attacks on the computer networks of private companies and United States Government agencies including the US Federal Reserve, US Army and the FBI. Allegedly, such attacks were carried out by Love (and others) to steal and publicly disseminate confidential information found on those networks.
It is alleged that Love gained unauthorised access by exploiting vulnerabilities in a programme the computers ran and by manipulating “structured query language” (i.e. computer programming language designed to retrieve and manage data).
Once inside the compromised computer systems, hidden “shells” or “backdoors” were placed within the networks. Consequently, Love was able to return and steal confidential data such as telephone numbers and social security numbers of employees and service personnel.
Accordingly, Love has been indicted in three US judicial districts for multiple charges that relate to computer offences and identity theft.
Legal issues on Appeal to the UKHCJ
Love’s appeal against District Judge Tempia’s decision to allow his extradition was made on the following grounds:
- That Judge Tempia erred in deciding that the ‘forum bar’ did not prevent Love’s extradition; and
- That because of Love’s physical and mental health, extradition to the US would be unjust, oppressive and so required his discharge from the extradition proceedings.
The Forum Bar issue
Under UK extradition law, a person’s extradition to another country may be barred by reason of ‘forum’. In other words, the forum bar’s purpose is to stop the extradition of vulnerable British defendants “in the interests of justice” when UK Courts could provide a more appropriate ‘forum’ to deal with their case. There are various factors the Court must consider before deciding whether the forum bar applies.
District Judge Tempia concluded that the forum bar failed. Her reasons are summarised as follows:
- Victims of the cyber-attacks were US companies and government departments who had their computers hacked into resulting in millions of dollars’ worth of damage;
- Her Honour dismissed as mere ‘conjecture’ the defence’s use of medical evidence to show that Love was unlikely to be fit to stand trial in the US;
- Similarly, given all witnesses were in the US it was more desirable for Love to be extradited to US and was more difficult to require witness attendance for a prosecution in the UK; and
- Though Her Honour accepted Love’s connections to the UK including his personal circumstances, these did not outweigh factors favouring extradition.
The UKHCJ disagreed and favoured barring Love’s extradition because:
- Judge Tempia wrongly dismissed as conjecture the real risk that Love, would become unfit by the time of trial in the US because of his worsening depression and eczema which adversely affected his mood; and
- The significance of Love’s connection to his family who deliver the necessary care, medical treatment and stability he needs that could not be provided in the US. Breaking such a connection was contrary to the interests of justice.
Discharged by reason of ‘Oppression’
UK extradition law also requires a judge to order the requested person’s discharge if it appears that the person’s physical or mental condition would make it unjust or oppressive to extradite him or her.
Despite Love’s high risk of suicide, District Judge Tempia decided that extradition to the US would not be oppressive. Her Honour accepted that there were sufficient safeguards to prevent Love from committing suicide in transit to and whilst remanded in the US.
However, the UKHCJ disagreed with Her Honour’s judgment. The important issue that Judge Tempia failed to deal with is whether such safeguards against suicide would likely have a seriously adverse effect on Love’s very unstable mental and physical wellbeing.
The UKHCJ highlighted, among other things, that:
- If on Suicide watch, Love would be placed in isolation which would exacerbate his Asperger Syndrome, severe depression and eczema;
- Despite sufficient safeguards, medical evidence suggested that Love would likely present himself as no longer suicidal for long enough to be removed from suicide watch, so that he could commit suicide;
- If Love were in the general prison population, Love’s Asperger Syndrome and physical conditions would likely make him a target for bullying by other prisoners.
For these reasons the UKHCJ ruled that extradition would be oppressive by reason of Love’s physical and mental conditions and was discharged.
However, the UKHCJ made clear that Love could still be prosecuted for the alleged cyber-attacks in the UK.