The US government has confirmed it will not appeal against a landmark decision by the Court of Appeal not to extradite 33-year-old engineering student Lauri Love to face hacking charges in the US.
The Crown Prosecution Service gave an undertaking to Love’s legal team on Friday that Love, who has Asperger’s and other serious health conditions, would no longer face extradition to the US.
But the CPS said it would be seeking to appeal on an important point of law following the Appeal Court judgment. The court held that the failure of the CPS to state whether it was in favour of extradition was a factor that supported Love being tried in the UK, rather than the US.
“I have received an undertaking from the CPS that the US will not be appealing the finding that it would be unjust and oppressive to extradite me given the woeful inadequacy of detention conditions,” Love tweeted on Saturday. “Now no prospect whatsoever of my extradition. All bail conditions will be annulled.”
Love was told today that he had been placed on unconditional bail, and would no longer have to take two buses to report to Bury St Edmunds police station every Monday and Wednesday lunchtime.
He is expected to have his passport returned, but will still be at risk of extradition, if he travels outside the UK, until legal proceedings in the UK have concluded.
The Lord Chief Justice, Lord Burnett, and Justice Ousley ruled in a 35-page judgment on 5 February that extraditing Love would be oppressive to his physical and mental health.
Love now faces the prospect of a trial in the UK, under the Computer Misuse Act, for allegedly working with others to break into computer systems belonging to the US government.
Love’s case was the first major test of the Forum Bar introduced by the then home secretary, Theresa May, to protect vulnerable people from extradition, after she intervened to prevent the extradition of hacker Gary McKinnon – who also has Asperger’s – following his 10-year battle against extradition.
The Extradition Act 2003 allows UK prosecutors to issue certificates giving reasons why they agree with extradition, but in practice, the CPS has declined to say whether it supports extradition or prosecution in the UK.
The judges ruled that the “fact that the CPS did not express any view adverse to the prosecution of Mr Love in the United Kingdom on any of the grounds potentially available to it” was a factor – although a minor one – in the Appeal Court concluding that the Forum Bar applied in the case of Love.
Pressure on CPS
The finding is likely to put pressure on the prosecution service to say whether it is in favour of extradition and to state its reasons in future cases.
A CPS spokesperson said: “We have applied to the High Court for leave to clarify a point of law of general public importance under Section 114 of the Extradition Act 2003. The outcome of that application will not affect the court’s decision of 5 February on Mr Love’s extradition to the United States, which will not now take place.”
The CPS was appealing a point of law that “relates to the procedure which should be followed when deciding which country a person who is subject to an extradition request should be prosecuted under the Forum Bar”.
“It would be inappropriate to comment further while legal proceedings continue,” it added.
Naomi Colvin of the Courage Foundation, which is backing Love’s case, said: “There is no possibility of Love being extradited, but Love v US lives on at least for a little while.”
The Appeal Court has urged the CPS to press charges against Love in the UK.
“The CPS must now bend its endeavours to his prosecution, with the assistance to be expected from the authorities in the United States, recognising the gravity of the allegations in this case, and the harm done to the victims,” the judgment said.
The judges accepted that Love was at high risk of suicide if he was held in the US prison system, without the support of his parents or girlfriend, or access to proper medical support.
“The evidence shows that the fact of extradition would bring on severe depression, and that Mr Love would probably be determined to commit suicide, here or in America,” the judgment said.
Prison system not equipped
The court accepted evidence from medical experts that the US prison system was not equipped to deal with someone with Love’s mental and physical health conditions, which include stress-induced eczema, depression and suicidal thoughts.
The ruling said: “There is no satisfactory and sufficiently specific evidence that treatment for this combination of severe problems would be available in the sort of prisons to which he would most likely be sent.”
Love is accused of working with others to hack US government computers as part of an online protest against the treatment by US prosecutors of internet pioneer Aaron Swartz, who committed suicide after been threatened with decades in jail for computer misuse.
He is accused of hacking into computers owned by the US Army, US Department of Defense, the Missile Defense Agency, Nasa, the FBI Regional Computer Forensics Laboratory, the Department of Energy, Forte Interactive, and other organisations.
The National Crime Agency – the UK’s equivalent of the FBI – raided Love’s parents’ house in October 2013. Detectives said in evidence that they found one of Love’s computers logged into an online chatroom, using the psuedonym “nsh”, which was associated with an internet chatroom used to discuss the hacking campaign.
A preliminary review revealed that some of the data stolen from US computers was on Love’s computers, according to police evidence. The FBI allegedly relied on a confidential informant, who had access to an internet relay chatroom, used by Love to discuss computer hacking.
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