Lauri Love: The Forum Bar Shows Its Mettle

On 5 February 2017, the UK High Court issued judgment in the case of Love v USA [2018] EWHC 172 (Admin) ("the Judgment"). This was an appeal against the decision at Westminster Magistrates' Court on 16 September 2016. The case is significant as the first reported case in which the forum bar was successfully argued to prevent extradition. Although the Judgment provides welcome confirmation that the forum bar does have teeth, it makes clear that it will only rarely bite.

The Allegations

Love was accused, in three federal indictments, of carrying out cyber-attacks against computer networks of private companies and US Government agencies between October 2012 and October 2013. It is alleged that he accessed websites to steal, and disseminate publicly, confidential and personally identifiable information.

The Forum Bar

The forum bar was introduced by the Crime and Courts Act 2003 as section 83A of the Extradition Act 2003 ("the Act"). The change in legislation followed the refusal by then Home Secretary Theresa May to order the extradition of Gary McKinnon in October 2012.1 May concluded that the extradition of McKinnon, who suffered from Asperger syndrome and a depressive illness, "would give rise to such a high risk of him ending his life that a decision to extradite would be incompatible with Mr McKinnon's human rights". Introducing the forum bar in the same speech, May said: "Where prosecution is possible in both the UK and in another state, the British courts will be able to bar prosecution overseas if they believe it is in the interests of justice to do so".

Under section 83A(2) of the Act, extradition of a defendant to certain states, including the USA, is barred if a substantial measure of the defendant's relevant activity was performed in the UK and the judge concludes, having regard only to certain specified matters, that the interests of justice lie in the extradition not taking place.

These specified matters include the location of loss or harm; the interests of any victims; the views of the prosecutor on the most appropriate jurisdiction for prosecution; the availability of evidence and witnesses; and, crucially in Love's case, the defendant's connection to the UK.

Lauri Love

Love suffers from Asperger syndrome, partly stress-related eczema and asthma. He requires a daily course of creams, steroids and other medication. Love also suffers from depression and has experienced suicidal thoughts. Medical evidence before the magistrates'...