Michael Richard Lynch v Westminster Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | Mr Justice Swift |
| Judgment Date | 26 January 2022 |
| Neutral Citation | [2022] EWHC 142 (Admin) |
| Year | 2022 |
| Docket Number | Case No: CO/4080/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 142 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Swift
Case No: CO/4080/2021
The Queen on the application of
and
Alex Bailin QC & Aaron Watkins (instructed by Clifford Chance Solicitors) for the Claimant
Mark Summers QC & Rachel Barnes (instructed by CPS) for the Second Interested Party
Hearing date: 18 January 2022
Approved Judgment
A. Introduction
This is Michael Lynch's application for a judicial review of a decision of District Judge Snow made on 25 November 2021 refusing the Secretary of State for the Home Department's application under section 99(4) of the Extradition Act 2003 to extend the time permitted for her to decide whether or not to order Dr Lynch's extradition to the United States of America. Dr Lynch's submission in these proceedings is that the Judge applied the wrong test when deciding the outcome of that application and/or reached a conclusion that was irrational.
Until 2012 Dr Lynch was Chief Executive Officer of Autonomy Corporation plc, an enterprise software company. He had founded the company in 1996. In October 2011 Autonomy was taken over by Hewlett Packard, a US company, in a deal that valued Autonomy at a sum then equivalent to £7.4bn. On 17 September 2019 the Government of the United States of America made a request for Dr Lynch's extradition to face charges arising out of the Hewlett Packard takeover.
In his judgment dated 22 July 2021, following the extradition hearing, the Judge summarised the charges as follows (at paragraph 1):
“… The Defendant is accused in the US of conduct between January 2009 and November 2018, particularised in a Superseding Indictment containing 17 counts constituting: (i) conspiracy to commit wire fraud (count 1); (ii) wire fraud and aiding and abetting wire fraud (counts 2–15); securities fraud and aiding and abetting securities fraud (count 16); and a conspiracy to conceal the above (count 17). …”
Between paragraphs 19 and 21 the Judge explained the context for these charges:
“19. The central allegation is that prior to the sale, between January 2009 and October 2011, to deceive purchasers and sellers of Autonomy Securities about the true performance of Autonomy's business, its financial performance and condition, the nature and composition of its products, revenue and expenses, and its prospects for growth. It is alleged that the Defendant was the leader of the corporate conspiracy to fraudulently inflate the reported revenue, earnings and value of Autonomy, in order to make the company more attractive to potential purchasers HP.
20. It is alleged that a consequence of the conspirators' fraudulent activity, HP was persuaded to purchase the shares in Autonomy at a significant overvalue …
21. Subsequently, between October 2011 and November 2018, the Defendant is further alleged to have conspired with others to conceal the fraudulent nature of the accounting at Autonomy, and to obstruct investigations into the fraud, through conduct including the making of false and misleading statements to HP's General Counsel, the theft and destruction of documents, and the payment of “ hush money” to former Autonomy employees to influence, delay and prevent their testimony.”
The extradition request falls to be considered under Part 2 of the Extradition Act 2003 (“the 2003 Act”). At the extradition hearing it was submitted for Dr Lynch that extradition was barred for four reasons. The Judge summarised the submission for Dr Lynch as follows, at paragraph 5 of his judgment.
“The Defendant indicated in a Skeleton Argument dated 24 December 2020 that he intended to argue four issues in opposition to extradition:
• Dual Criminality Section 78(4)(b) and Section 137: the alleged conduct did not occur ‘ within the United States’ for the purposes of section 137(3)(a); and ‘ the conduct alleged, if properly transposed as required by section 137, would [not] yield any offence triable in the UK’ under section 137(3)(b);
• Passage of time Section 79(1)(c) and Section 82: the conduct dates back to 2009, the (first) indictment was not issued until 2018 and the extradition request was not made until 2019; extradition would be both oppressive and unjust in these circumstances;
• Forum Section 79(1)(e) and Sections 83A-E: the Defendant is a British citizen with lifelong links to the UK; the alleged conduct concerns the takeover of a UK company that which applied UK accounting standards and was audited by a UK auditor; ‘ this is a factual matrix, par excellence, which should engage the protection of the forum bar’;
• Article 3 ECHR Section 87: extradition would expose the defendant to detention in substandard prison conditions; the impact of those conditions is to be considered by reference to the Defendant's ‘ specific health needs’ and ‘ his ability to prepare for trial’;
• Abuse of process: a ‘ number of interlinked issues’ are to be raised ‘ the core of which is that the Government has presented and relies upon a significantly distorted picture, including inter alia: (i) misleading content, (ii) material omissions and (iii) jurisdiction’. The alleged abuse appears to be of the type identified in Zakrzewski v Regional Court in Lodz, Poland [2013] 1 WLR 324.”
The Judge rejected these submissions, and in accordance with Part 2 of the 2003 Act sent the case to the Secretary of State for her consideration.
The Secretary of State's functions are set out at section 93 of the 2003 Act. The Secretary of State must decide whether extradition is prohibited for any of the following reasons: (a) because the person concerned could be sentenced to death for the offence concerned; (b) because there are no specialty arrangements with the relevant Category 2 country; (c) that the person concerned has previously been extradited to the United Kingdom, 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 United Kingdom 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. If the Secretary of State decides that any of these prohibitions applies she must order the person's discharge: see section 93(3) of the 2003 Act.
The Secretary of State is required to take her decision within the time specified by section 99 of the 2003 Act. This is referred to as the “required period”. On the facts of this case, the required period was two months starting with the day on which the case was sent by the Judge to the Secretary of State. The required period may be extended by order of a District Judge. Section 99(4) provides as follows:
“If before the required period ends the Secretary of State applies to the appropriate judge for it to be extended the judge may make an order accordingly; and this subsection may apply more than once.”
When a case is sent to the Secretary of State, section 93 provides an opportunity for representations to be made to her. If representations are made within what is referred to as the “permitted period” (in this case the period of four weeks from the date on which the Judge sent the case to the Secretary of State) the Secretary of State must consider representations. She has a discretion whether or not to consider representations made outside the permitted period.
In this case Dr Lynch's solicitors (Clifford Chance) sent representations on his behalf on 17 August 2021. The representations included a request that the Secretary of State delay her decision whether to make an extradition order until she had the chance to consider the judgment in proceedings in the Chancery Division brought by Autonomy against Dr Lynch and Sushovan Hussain, who had been Autonomy's Chief Financial Officer (“the Chancery proceedings”). Those proceedings were commenced in 2015. In very short summary, in those proceedings it is alleged that Dr Lynch and Mr Hussain breached fiduciary obligations owed to Autonomy by publishing accounts that artificially inflated the company's revenues. It is also alleged they acted contrary to obligations in Schedule 10A to the Financial Services and Markets Act 2000. Further, Autonomy also pursues claims under section 2(1) of the Misrepresentation Act 1967. Dr Lynch has counter-claimed in those proceedings. The trial took place before Mr Justice Hildyard and ended in January 2020, after a hearing that lasted 93 days. Judgment was reserved.
On 20 September 2021, Clifford Chance wrote again to the Secretary of State informing her that Hildyard J did not now expect to circulate the draft of his judgment until late October or early November 2021. They invited the Secretary of State to make an application to the court under section 99(4). The last day of the two-month period permitted by section 99(3) of the 2003 Act was 21 September 2021. By letter dated 21 September 2021 the Secretary of State made her application. She sought an extension of 7 days. The letter said this (emphasis in the original):
“On 17 August 2021, the Requested Person served detailed representations in relation to the bars to extradition that the Secretary of State must consider under the 2003 Act. The Secretary of State has considered those representations but in light of the complex nature of the background to this case and the need for the Secretary of State to give full consideration to all the relevant issues that have been raised before her, a short extension of seven days is...
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