Government of the United States of America v Robert Walker McDaid
| Jurisdiction | England & Wales |
| Judge | Lord Justice Holroyde,Mr Justice William Davis |
| Judgment Date | 12 June 2020 |
| Neutral Citation | [2020] EWHC 1527 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1024/2019 |
| Date | 12 June 2020 |
[2020] EWHC 1527 (Admin)
Lord Justice Holroyde
Mr Justice William Davis
Case No: CO/1024/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Helen Malcolm QC and Joel Smith (instructed by Crown Prosecution Service Extradition Unit) for the Appellant
Edward Fitzgerald QC and David Williams (instructed by Alsters Kelley Solicitors) for the Respondent
Hearing dates: 30th April, 2020
APPROVED JUDGMENT
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Lord Justice Holroyde and
The appellant, the Government of the United States of America, requested the extradition of the respondent Mr McDaid to face charges alleging that he had participated in a scheme to convey false and misleading information to law enforcement agencies in the USA, thus causing armed response officers to attend an address at which a hostage was said to be held. On 28 th February 2019, in the Westminster Magistrates' Court, District Judge Tempia (“the judge”) discharged the respondent. By leave of Holman J, the appellant now appeals against the judge's order. This is the judgment of the court.
We record at the outset our gratitude to counsel and solicitors on both sides, and in particular to Ms Malcolm QC and Mr Fitzgerald QC for their oral submissions.
The facts:
The relevant facts can for present purposes be summarised. For convenience, and intending no disrespect, we shall for the most part refer to those involved by their surnames only. Also for convenience, we shall refer to the United Kingdom and the United States of America as the UK and the USA respectively.
Two citizens of the USA, Tyrone Dobbs and Evan Passarelli, were in dispute over a drug debt. In February 2015, Passarelli was assaulted by an associate of Dobbs. As revenge for that assault, Passarelli's friend Zachary Lee organised the “swatting” of Dobbs. “Swatting” is a term used to describe the making of false report of a critical incident which deceives a law enforcement agency into sending an emergency response team to the supposed scene.
It is alleged that Lee (in the USA) contacted the respondent (in England) by Skype. The record of their conversation, legally obtained by the authorities in the USA, shows that Lee explained that he wanted Dobbs swatted. The man alleged to be the respondent said that would be easy to do, and agreed to do it. Lee provided details of Dobbs' address and description. He emphasised that there must be nothing to connect him to the swatting.
It is alleged that on 18 th February 2015 Lee, the respondent and another British man took part in a further Skype call, in the course of which a man with an English accent called a Terrorism Hotline in Maryland. The caller, using the name Tyrone and giving Dobbs' address, said that he was armed with a loaded gun and plastic explosives, had taken three hostages, and would begin executing the hostages if a ransom of $15,000 was not paid within 15 minutes. It is alleged that the respondent was either the man who made that call, or alternatively had recruited the other British man to do so.
Armed police officers were sent to Dobbs' address. They surrounded Dobbs' home and evacuated neighbouring properties. Dobbs was contacted by phone and ordered to leave his home. He did so, but then went back inside. When he emerged for a second time, he was shot in the face and chest with rubber bullets. He sustained serious injuries.
On 11 January 2017 a grand jury sitting in the District of Maryland returned an indictment charging the respondent with three offences contrary to provisions of the US Code: conspiracy against the United States; false information and hoax, and aiding and abetting; and aggravated identity theft and aiding and abetting. The maximum sentences for the first of those offences is 5 years' imprisonment. For the second, the maximum sentence is 20 years' imprisonment. For the third, the penalty is a term of 2 years' imprisonment which runs consecutively to any other sentence.
On the same day, a warrant for the respondent's arrest was issued by the US District Court of the District of Maryland. The appellant then requested the extradition of the respondent. Pursuant to section 70 of the Extradition Act 2003 (“the Act”), the request was certified as valid by the Secretary of State on 16 June 2017. On 7 September 2017 the respondent was arrested under section 71 of the Act and produced before the magistrates' court. He was initially remanded in custody, but subsequently released on conditional bail.
The respondent denies any knowledge of or involvement in the relevant events, and denies knowledge of or contact with Lee.
Part 2 of the Act applies to this request. The respondent resisted extradition on a number of grounds. The judge discharged him on one of those grounds, namely that extradition would not be in the interests of justice by reason of forum: the “forum bar” under section 83A of the Act. She rejected the other grounds put forward by the respondent, and we need say no more about them.
The legal framework:
Before coming to the reasons which the judge gave for her decision, and the grounds of appeal against it, it is convenient to set out the statutory terms of the forum bar and to refer to relevant case law.
Section 83A of the Act provides:
“ 83A Forum
(1) The extradition of a person (“D”) to a category 2 territory is barred by reason of forum if the extradition would not be in the interests of justice.
(2) For the purposes of this section, the extradition would not be in the interests of justice if the judge –
(a) decides that a substantial measure of D's relevant activity was performed in the United Kingdom; and
(b) decides, having regard to the specified matters relating to the interests of justice (and only those matters), that the extradition should not take place.
(3) These are the specified matters relating to the interests of justice—
(a) the place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur;
(b) the interests of any victims of the extradition offence;
(c) any belief of a prosecutor that the United Kingdom, or a particular part of the United Kingdom, is not the most appropriate jurisdiction in which to prosecute D in respect of the conduct constituting the extradition offence;
(d) were D to be prosecuted in a part of the United Kingdom for an offence that corresponds to the extradition offence, whether evidence necessary to prove the offence is or could be made available in the United Kingdom;
(e) any delay that might result from proceeding in one jurisdiction rather than another;
(f) the desirability and practicability of all prosecutions relating to the extradition offence taking place in one jurisdiction, having regard (in particular) to
(i) the jurisdictions in which witnesses, co-defendants and other suspects are located, and
(ii) the practicability of the evidence of such persons being given in the United Kingdom or in jurisdictions outside the United Kingdom;
(g) D's connections with the United Kingdom.
(4) In deciding whether the extradition would not be in the interests of justice, the judge must have regard to the desirability of not requiring the disclosure of material which is subject to restrictions on disclosure in the category 2 territory concerned.
(5) If, on an application by a prosecutor, it appears to the judge that the prosecutor has considered the offences for which D could be prosecuted in the United Kingdom, or a part of the United Kingdom, in respect of the conduct constituting the extradition offence, the judge must make that prosecutor a party to the proceedings on the question of whether D's extradition is barred by reason of forum.
(6) In this section “D's relevant activity” means activity which is material to the commission of the extradition offence and is alleged to have been performed by D.”
It is to be noted that subsection (3) contains an exhaustive list of the only matters which are specified as relating to the interests of justice.
Where a requesting authority appeals pursuant to section 105 of the Act against an order for discharge at an extradition hearing, the powers of this court are set out in section 106, which — so far as is material for present purposes — provides:
“ 106 Court's powers on appeal under section 105
(1) On an appeal under section 105 the High Court may —
(a) allow the appeal;
(b) direct the judge to decide the relevant question again;
(c) dismiss the appeal.
(2) A question is the relevant question if the judge's decision on it resulted in the order for the person's discharge.
(3) The court may allow the appeal only if the conditions in subsection (4) or the conditions in subsection (5) are satisfied.
(4) The conditions are that –
(a) the judge ought to have decided the relevant question differently;
(b) if he had decided the question in the way he ought to have done, he would not have been required to order the person's discharge.
…
(6) If the court allows the appeal it must –
(a) quash the order discharging the person;
(b) remit the case to the judge;
(c) direct him to proceed as he would have been required to do if he had decided the relevant question differently at the extradition hearing.”
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