The Court of Appeal will announce on Monday whether 33-year-old engineering student Lauri Love should be extradited to the US to face hacking charges, in a landmark case that could challenge the validity of UK extradition laws.
Love, who has Asperger’s, depression and drug-resistant eczema, faces the prospect of being the first Briton to be extradited for alleged hacking offences in the US.
This is a key test case for the forum bar, introduced by Theresa May when she was home secretary, following Gary McKinnon’s 10-year battle against extradition, to give vulnerable defendants protection against extradition.
“This is an incredibly important case,” said Naomi Colvin of the Courage Foundation, which is backing Love’s case. “What happens on Monday will determine whether the hard-fought-for changes to our extradition law, secured during the Gary McKinnon law case, hold true or whether we are back to square one again.”
The courts have accepted that Love is at high risk of suicide if he is sent to the US, where he would be placed on suicide watch in a detention centre before trial.
The Appeal Court will decide whether conditions in US jails, which have deteriorated under cutbacks since Donald Trump became president, mean they cannot provide the care and medical treatment that Love requires.
Love’s defence team argue that he would face “medieval conditions” in the US federal prison system if the extradition went ahead.
The Metropolitan Correction Centre (MDC) in Manhattan and the Metropolitan Detention Centre (MDC) in Brooklyn – where Love is likely to be detained pending trial – has just one psychiatrist for 2,461 inmates, the court was told in a two-day hearing in November. In one case, a prisoner on suicide watch cut himself and was left in a cell covered in excrement for a week, despite repeated pleas for cleaning to prevent him picking up an infection.
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- Engineering student Lauri Love should be tried in the UK, court hears, as new evidence is presented on the “medieval” conditions in US jails for people with medical problems.
- Former director of public prosecutions Ken Macdonald said in written evidence in Lauri Love’s extradition case that it is normal practice to prosecute hackers accused of attacking US servers in the UK – rather than extradite them to the US.
- Lauri Love should face trial over hacking allegations in a British court, rather than be extradited to the US, where his extraordinary skills will be lost to society, says his younger sister Natasha.
- Video: Lauri Love presents a compelling story of the WannaCry malware that nearly brought down the NHS, and the behind-the-scenes work of former hackers and security researchers that helped to prevent lives being lost. Filmed at the Byline Festival 2017.
- Video: In this exclusive documentary by Computer Weekly and Insofar Media, Lauri Love tells the story of how his interest in computers developed from a young age and how his growing interest in politics at university later led him to online activism.
The Appeal Court judges are also expected to rule whether Judge Nina Tempia properly considered the forum bar in her judgment permitting Love’s extradition to go ahead, following a hearing at Westminster magistrates court in September 2016.
At least 13 people accused of hacking US computer systems have been tried in the UK, raising questions over why Love, who potentially faces trials in three US states, is not being prosecuted in the UK.
Former director of public prosecutions Ken Macdonald said in a witness statement that it had been normal practice to prosecute hackers accused of attacking overseas computer systems in the UK, with the notable exception of McKinnon, whose extradition was halted by Theresa May.
Love is accused of working with others to hack the US Federal Reserve, US Army, US Department of Defense, the Missile Defense Agency, Nasa and the FBI Regional Computer Forensics Laboratory as part of an online protest about the death of Aaron Swartz, who was charged under the US Computer Fraud and Abuse Act in what was seen as a politically motivated case.
Four years of stress
Speaking before the verdict, the Courage Foundation’s Colvin said the trial had taken its toll on both Love and his family. “I hope for Lauri and his famiy’s sake that Monday will be the end of this,” she said. “It’s over four years of incredible stress, and it’s a deleterious impact on his mental and physical health. To do this to someone who has medical difficulties, it’s a form of punishment, but it’s a form of punishment by process.”
The Appeal Court has a number of options open to it. The Crown Prosecution Service has declined to say whether it would prosecute Love or support an extradition – a decision required under the forum bar process – which could persuade judges to refer the case back to a lower court.
If the court finds in Love’s favour, it could do so on the narrow grounds that it would be unfair and oppressive to go ahead with the extradition – a move that would not resolve concerns raised by Love’s legal team about the effectiveness of the forum bar.
Set a precedent
Or it could find in favour of Love under the forum bar, which would set a precedent for other vulnerable people to have their cases heard in the UK.
“Obviously we are hoping for a good result, but if the ruling does not go Lauri’s way, this is not the end of the road,” said Colvin. “Due to the public importance of this case, it could easily go to the Supreme Court. Given the deterioration of prison conditions and the rule of law in the US under Trump, it would not be surprising if lawyers in the European Court of Human Rights in Strasbourg wanted to look at it.”
The case has attracted support from MPs across all parties, who published an open letter last November calling for Love to be tried in the UK.
“If Mr Love has committed a crime, he should be prosecuted and justice should be served,” the MPs said. “We believe that if he is extradited, there is a great probability that he will end his own life. This has been confirmed by eminent medical experts, who judge Mr Love’s suicide risk to be very high.”
The forum bar
The forum bar came into force in October 2013 as an addition to the Extradition Act 2003 following controversial requests from the US to extradite hacker Gary McKinnon, who won widespread public and political support in the UK.
The bar allows courts to halt extradition requests when a substantial proportion of the alleged offences took place in the UK and when it is in the interests of justice.
The court considers a limited range of factors when deciding whether to halt an extradition request. These include where the harm occurred, the interests of any victims, whether evidence could be made available in the UK, the alleged offender’s connections with the UK, and whether UK law enforcement has decided not to bring proceedings.
Lauri Love’s case will be the first real test of the forum bar, and will show whether it offers UK citizens any meaningful protection from almost automatic extradition following a request from the US.
Love’s case has close parallels with McKinnon, who was also diagnosed with Asperger’s, and was eventually allowed to remain in the UK.
For more information on the forum bar, see Norton Rose Fulbright.
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