Nathan Wyatt v Government of United States of America
| Jurisdiction | England & Wales |
| Judge | The Lord Burnett of Maldon,Mrs Justice May |
| Judgment Date | 06 November 2019 |
| Neutral Citation | [2019] EWHC 2978 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1327/2019 |
| Date | 06 November 2019 |
[2019] EWHC 2978 (Admin)
THE RIGHT HONOURABLE The Lord Burnett of Maldon
LORD CHIEF JUSTICE OF ENGLAND AND WALES
and
THE HONOURABLE Mrs Justice May
Case No: CO/1327/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms K O'Raghallaigh (instructed by Tuckers Solicitors) for the Claimant
Mr D Sternberg (instructed by CPS Extradition Unit) for the Defendant
Hearing dates: 22 October 2019
Approved Judgment
The Lord Burnett of Maldon CJ:
The Government of the United States seeks the extradition of the appellant on charges relating to computer hacking with associated demands for money and the dissemination on the internet of personal medical records. On 25 January 2019 District Judge Tempia sent the appellant's case to the Secretary of State who subsequently ordered his extradition. The sole issue before the judge was whether the forum bar to extradition found in section 83A of the Extradition Act 2003 [“the 2003 Act”] should operate to prevent extradition on the basis that the interests of justice, as defined in that section, favoured prosecution in this jurisdiction.
The judge examined each of the statutory factors that inform that question. She concluded that it was in the interests of justice for the appellant to be extradited for trial in the United States. This is his appeal against the decision to send the case to the Secretary of State.
The Forum Bar
Section 83A of the 2003 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 witness, 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.”
4. The application of the forum bar has been considered in a series of appeals in this court, most recently: Love v USA [2018] EWHC 172 (Admin) [2018], 1 WLR 2889; Scott v USA [2018] EWHC 2021 (Admin), [2019] 1 WLR 774 and Ejinyere v USA [2018] EWHC 2841 (Admin).
5. As was explained at [14] in Ejinyere, echoing Love at [22], the aim of the forum bar is to prevent extradition where the offences in question can be fairly and effectively tried in the United Kingdom and it is not in the interests of justice, as narrowly defined in section 83A, that the requested person should be extradited. Close attention must be paid to the wording of the statute.
“The matters relevant to an evaluation of the “interests of justice” are found in section 83A(2)(b) and (3). They do not leave the court the task of some vague or broader evaluation of what is just. Nor is the bar a general provision requiring the court to form a view directly on which is the more suitable forum …” Love at [22].
6. The question for this court on an appeal is whether or not the judge was wrong: Love at [23] to [26]. It is not to unpick the reasoning with a view then to inviting this court to make a primary decision.
The Background
7. The appellant became the subject of a police investigation in the United Kingdom in 2016 which led to his prosecution on a 22 count indictment. There were 20 counts of fraud which involved using stolen credit card details, one count of possession of an identity document with an improper intention and one count of blackmail. That last count arose from hacking a computer and demanding money from its owners to avoid harm. On 22 September 2017 at Southwark Crown Court the appellant pleaded guilty to all counts and on 17 November was sentenced to 42 months' imprisonment. The domestic prosecuting authorities were aware that a criminal investigation was underway in the United States which centred on a computer hacker or hackers who were self-styled as “the dark overlord”. In the context of the prosecution proceeding in this jurisdiction, the Crown Prosecution Service considered whether it should take over the investigation of the United States matters with a view to prosecuting additional counts. There was no doubt that the conduct of the appellant subject to investigation in America had taken place here, albeit that the alleged damage all occurred in the United States and both the corporate and individual complainants were located there.
8. Mr Andrew Hadik, of the Complex Casework Unit of the Crown Prosecution Service, reviewed the matter on 12 September 2017. He explained in a contemporaneous note that the appellant was believed by the United States prosecuting authorities to be responsible for the criminal conduct under investigation there, although there were other suspects in America. Nearly all the witnesses were in the United States where the alleged victims were also located and the losses and harm sustained. At the time of his review the investigation was continuing and there was no evidence then available in this jurisdiction to charge the appellant with the American offences. Evidence of the unlawful demands relied upon by the United States authorities had not been found on the computers seized by the police here. The prosecution proceeding in England was not into the same allegations, although the method of offending was the same as underlay the single blackmail count here. There was no connection between the alleged victims. Mr Hadik concluded that there was no good reason to begin to investigate and prosecute the United States matters here. He decided to inform the appellant about the United States investigation (of which he was likely to be aware anyway) to avoid any argument that he might enter guilty pleas on a misapprehension about the possibility of future prosecutions. The case summary produced at Southwark Crown Court for the sentencing hearing confirmed that the appellant remained under investigation by the authorities in the United States.
9. The extradition request relates to those investigations. There is a single conspiracy charge, two counts of aggravated identity theft and three counts of threatening damage to a computer. The “dark overlord” remotely accessed computer networks of healthcare and accountancy companies, obtained sensitive data, and then threatened to release it unless a ransom was paid. It is alleged that the appellant created email and telephone accounts which were used to send threatening and extortionate demands. The first victim was a healthcare provider which was contacted and told that its systems had been hacked. Samples of hacked material were provided together with details of the company owner's family. Threatening messages were sent directly to his daughter. The second victim was another healthcare provider. Money was stolen via its Paypal account and it was later threatened with exposure as having compromised its clients' records with consequent responsibility for their suffering. The third victim was also a healthcare company. $75,000 was demanded from it to be paid using bitcoin. Confidential information was posted on a Twitter account and it was told information would be pasted on another website if it did not pay. The fourth victim was a public accounting firm whose owner received an email that contained personal information about his family and business, with a threat to publish unless 250 bitcoin were paid. Threats were made to publish confidential client...
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