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Scott v. United States of America
Factual and Procedural Background
The Government of the United States of America sought the extradition of the Appellant pursuant to a request made in January 2017 and certified under section 70 of the Extradition Act 2003. The Appellant was accused of fraudulent foreign exchange trading in December 2011 while employed by Company A, acting for Company B. The charges included conspiracy to commit wire fraud and multiple substantive counts of wire fraud, carrying a potential maximum sentence of 30 years imprisonment.
The Appellant resisted extradition on several grounds: alleged misrepresentation of the relationship between Company A and Company B in the request, the conduct not occurring "in" the United States for dual criminality purposes, the operation of the forum bar under section 83A of the 2003 Act, and alleged infringement of Article 8 rights under the European Convention on Human Rights.
The District Judge rejected all the Appellant's arguments and sent the case to the Secretary of State, who ordered extradition. The Appellant appealed with permission granted on the forum issue and renewed applications on other grounds were refused. The principal issue before the appellate court was whether the District Judge erred in rejecting the forum bar argument.
Legal Issues Presented
- Whether the District Judge was wrong in rejecting the forum bar under section 83A of the Extradition Act 2003.
- Whether the extradition request misrepresented the nature of the relationship between Company A and Company B, constituting an abuse of process and failing the dual criminality requirement.
- Whether the Appellant's conduct occurred "in" the United States for the purposes of section 137(3)(a) of the 2003 Act.
- Whether extradition would infringe the Appellant's and his family's rights under Article 8 of the European Convention on Human Rights.
Arguments of the Parties
Appellant's Arguments
- The extradition request misrepresented the relationship between Company A and Company B, which was governed by an agreement indicating that Company A acted as principal, not agent, and owed no fiduciary duty to Company B. This misrepresentation was argued to amount to an abuse of process, undermining dual criminality.
- The alleged conduct did not occur "in" the United States for the purposes of dual criminality.
- The forum bar under section 83A should prevent extradition as it would not be in the interests of justice.
- Extradition would violate the Appellant's and his family's Article 8 rights.
Government's Arguments
- Company A owed a fiduciary duty to Company B arising from the circumstances of the transaction, obliging it to act in Company B's best interests.
- The Appellant and a co-conspirator engaged in a scheme involving front running and ramping the foreign exchange market to benefit Company A at the expense of Company B.
- The conduct occurred partly in the United States, including trading directed from New York and harm to financial markets there, satisfying the dual criminality requirement.
- The forum bar did not apply because extradition was in the interests of justice considering the statutory factors.
- Extradition would not breach Article 8 rights despite the Appellant's personal circumstances.
Table of Precedents Cited
Precedent | Rule or Principle Cited For | Application by the Court |
---|---|---|
Zakrzewski v Regional Court in Lodz, Poland [2012] UKSC 2 | Abuse of process challenge requires true facts to be clear and beyond legitimate dispute. | The court held the Appellant's claim did not meet this standard and the relationship between Company A and Company B was for the trial court to determine. |
Office of the King's Prosecutor, Brussels v Cando Armas [2005] UKHL 67 | Tests for conduct occurring "in" the requesting state include whether effects were felt there or substantial conduct took place there. | The court found these tests satisfied as part of the trading occurred in New York and harm was caused there. |
R (Bermingham) v Director of the Serious Fraud Office [2006] EWHC 200 (Admin) | Similar tests for territorial conduct in extradition cases. | Supported the conclusion that conduct occurred in the United States. |
Norris v Government of the United States of America (No 2) [2010] UKSC 9 | Approach to Article 8 rights in extradition cases. | Applied to find extradition not incompatible with Article 8 rights despite personal circumstances. |
H(H) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 | Further guidance on Article 8 rights in extradition. | Reinforced conclusion on Article 8. |
Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin) | Framework for considering the forum bar under section 83A. | Adopted approach to assess whether extradition is in the interests of justice. |
Love v Government of the United States of America [2018] EWHC 172 (Admin) | Leading case on the forum bar, emphasizing statutory factors and the safeguard role of section 83A. | The court applied the principles to assess the forum bar in the present case. |
Dibden v Tribunal de Grande Instance de Lille, France [2014] EWHC 3074 (Admin) | No predetermined hierarchy among forum bar factors. | Supported the court's approach to weigh factors individually without fixed priority. |
Shaw v Government of the United States of America [2014] EWHC 4654 (Admin) | Interpretation of prosecutor's belief under section 83A(3)(c). | The court held that absence of belief means the factor is not engaged. |
Atraskevic v Prosecutor General's Office, Republic of Lithuania [2015] EWHC 131 (Admin) | Confirmed Shaw on prosecutor's belief. | Reinforced that without a stated belief, subsection (3)(c) does not apply. |
Court's Reasoning and Analysis
The court began by reviewing the legal standards applicable to the Appellant's claims, including the abuse of process standard from Zakrzewski, which requires clear and undisputed true facts to support such a claim. The court found that the relationship between Company A and Company B was not sufficiently clear to support the Appellant's abuse of process argument and was properly a matter for trial.
Regarding whether the conduct occurred "in" the United States, the court applied established tests considering where the effects were felt and where substantial conduct took place. It concluded that part of the trading directed from New York and the harm to U.S. financial markets satisfied this test.
On the forum bar, the court carefully analysed the statutory factors in section 83A(3), emphasizing that no single factor has predetermined weight and that the focus is on whether extradition is in the interests of justice. The court considered the significant harm suffered in the United Kingdom, the Appellant’s strong personal and familial connections to the UK, and the absence of any ongoing or likely prosecution in the UK, as evidenced by the Serious Fraud Office (SFO) statement.
The court rejected the District Judge’s treatment of the SFO statement as a prosecutor’s belief under section 83A(3)(c), clarifying that it was a statement of fact rather than belief and was not relevant to that specific factor, though it had wider significance in the overall assessment.
The court found that factors favoring extradition, such as the desirability of a single jurisdiction trial and availability of evidence, were of limited weight, especially as a joint trial with the co-defendant was not achievable. The court disagreed with the District Judge’s conclusion that extradition was in the interests of justice, finding instead that the balance of factors weighed against extradition.
On Article 8 and other grounds, the court applied established precedents and found no basis to interfere with the District Judge's decisions, refusing permission to appeal on those issues.
Holding and Implications
The court ALLOWED the appeal on the forum issue, concluding that extradition was not in the interests of justice under section 83A of the Extradition Act 2003. The Appellant was therefore discharged and will not be extradited.
Permission to appeal was refused on the other grounds, including abuse of process/dual criminality, territoriality of conduct, and Article 8 rights.
The direct effect is the Appellant’s discharge from extradition proceedings. The court did not establish new precedent but applied existing legal principles to the statutory framework and facts of the case, clarifying the proper approach to the forum bar and the role of domestic prosecuting authorities’ views.
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