A legal precedent will be set over the extradition of Lauri Love, a man with Asperger's accused in the US of hacking government computer systems, when a decision is made following presentations being made in the UK high court today.
Lauri Love, 32 a Finnish and British native who lives with his family in the UK is facing extradition to the US after he hacked into various US agencies including the defence department, FBI and NASA; he has been under indictment in the US since 2013 in new Jersey and 2014 in New York and the East District of Virginia.
His lawyers have expressed their concern at Love being extradited to the US as they have said it will have a detrimental effect on his health and could lead to his suicide due to his severe depression and Aspergers.
Love's case is currently in court ; he is being supported by 73 MPs, his lawyers and human rights organisation Liberty. After the earlier Gary McKinnon case, where the current Prime Minister and then Home Secretary Theresa May decided to reject extradition due to the high suicide risk, she introduced the Forum Bar which meant that if a similar case arose it would go to the courts and not politicians to decide.
Whether the CPS decides if it is possible or appropriate to prosecute can depend on whether it believes there is enought evidence, or if another jurisdiction has taken the lead on the case. If it had decided to prosecute, then the accused would not be extradited to be tried on the same case abroad, but if, as in this case, the CPS decided not to prosecute, they may still allow extradition.
Peter Caldwell, a representative for the US government argues that it should not be where the connection to the prisoner is that they are charged but rather the place in which they caused the harm, in this case in America. Caldwell then went on to say that it was in the interest of justice that Love was held in the US for the jurisdiction of the trial.
Defence Barrister Edward Fitzgerald QC said of the extradition “There's a general practice of trying hackers here who are UK citizens even where the target or whatever harm was done was in the USA”.
Nick Vamos, who is Partner at law firm Peters & Peters, former Head of Extradition at the Crown Prosecution Service (CPS) explained the rationale to SC Media UK: “The CPS and the US Department of Justice are not necessarily looking at the same evidence. So a decision by the CPS not to prosecute does not mean they have looked at all the evidence and decided not to prosecute, just that we in the UK are not going to do so, but you (the US) can go ahead.”
Vamos adds that it is possible that Lauie Love's defence could challenge the decision of the CPS not to prosecute, as if it did so it would cause a bar to extradition.
Another factor is that it is decided at the start of a case, while still gathering evidence, who is going to lead, and so at the time of arrest, who will prosecute was already decided early on: “It's difficult to change later,” says Vamos.
The main grounds for defence by Love are the UN Right to life and article 3 forbidding torture or inhuman treatment, and so if there is a real risk of suicide or inhuman or derogatory treatment in the US penal system, the would be grounds to stop prosecution.
From Vamos' perspective, the decision will be decided based on the evidence and it will not be a political decision thanks to the Forum Bar. Whether the risk is significant enough or not, Vamos comments, “I'd need to see the evidence, but a combination of Aspergers, serious skin conditions and depression could well lead to feelings of being suicidal if taken from his family to a US prison, so I wouldn't poo-poo the suggestion.”
At the hearing on Wednesday three experts attested to the fact that even if Love was put on suicide watch it still would not necessarily prevent his death. However Caldwell said evidence had been received that, “no one commits suicide on suicide watch”. Vamos countered, “In my experience in dealing as a prosecutor, if people are determined to kill themselves, they normally manage it. But is it a slim chance or a real risk that can't be mitigated by the measures taken?”
Factors to be taken into consideration include, what special measures would be put in place, what prison would he be in if not given bail, what medical facilities would be provided, etc, but the prosecution will have considered that.
The arguments concludes this week and will include any fresh evidence such as psychological reports. A decision would then be taken by the courts in the New Year.
Vamos told SC: “I would expect that the appeal court would uphold the extradition order unless there has been significant deterioration.
“However, he will still need to surrender himself to a US Marshall on a set date and place and [it is not inconceivable that] he could deteriorate further, so it's not a done deal until the wheels go up on the plane.”