Andrew Fuller aka James Wellesley v Government of the United States of America [2025] EWHC 1252 (Admin)

[2025] EWHC 1252 (Admin)Case No AC-2023-LON-001590
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/05/2025
Before
MR JUSTICE DOVE
Between
Andrew Fuller aka James WellesleyAppellantGovernment of the United States of AmericaRespondent
Clare Montgomery KC and Graeme Hall (instructed by Sonn Macmillan Walker) for AppellantBen Lloyd (instructed by Extradition Unit Crown Prosecution Service) for RespondentHearing Hearing date: 6 February 2025Further written submissions completed: 16 April 2025
Approved JudgmentThis judgment was handed down remotely at 14:00 on 20 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MR JUSTICE DOVE

Introduction

[1]The appellant appeals the decision of District Judge Zani (“the judge”) of 23 March 2023 referring the appellant’s case to the Secretary of State to determine whether to extradite the appellant to the United States of America. On 10 May 2023, the Secretary of State ordered the appellant’s extradition, leading to these appeal proceedings. The appeal was initially advanced on two grounds. Ground one is the forum bar pursuant to section 83A of the Extradition Act 2003. Ground two is the submission that the judge was wrong to conclude that Article 8 of the ECHR was not a bar to extradition. A further application was made to amend the proceedings to rely upon Article 3 of the ECHR. That was supported by written submissions as set out below. The ground was in fact abandoned on 23 April 2025 but this communication to the court was not brought to my attention until after the draft of this judgment had been circulated. It follows that the consideration of this ground, for which permission to amend was granted, is in truth academic, but as the conclusions had been written in the circulated draft and the respondent wished them to be retained, they appear below but should be read in the light of the foregoing.[2]I propose to set out the background facts which gave rise to the extradition request issued by the respondent on 16 March 2022 (which was certified by the Secretary of State for the Home Department under section 70 of the 2003 Act on 1 April 2022). I then propose to set out the legal framework, submissions and conclusions in respect of the grounds, taking them in turn. In particular, in relation to the forum bar, the judgment sets out the conclusions in respect of each of the elements of the forum bar, which were the subject of contention at the hearing.[3]Following the hearing, further legal submissions were received by the court on 12 and 14 February 2025 relating to the decision of the Supreme Court in the case of El-Khouri v USA [2025] UKSC 3. These materials have also been taken into account in reaching my conclusions, and I have addressed the submissions below.[4]In addition the appellant made an application to amend the grounds of appeal to include a ground based on Article 3 of the ECHR by way of an application dated 21 March 2025. This application was not opposed and the application to amend was approved in an order dated 8th April 2025. It was agreed that this further ground of appeal should be dealt with by means of an exchange of written material, which was completed on 15th April 2025 when the respondent provided a response to the appellant’s submissions which had accompanied the application to amend. Again, these submissions are addressed below although, as set out above, this ground was formally abandoned.

The Facts

[5]On 28 February 2022 a grand jury sitting in Brooklyn, New York, returned an indictment charging the appellant with three counts. Count one and count two are allegations of wire fraud and count four is an allegation of money laundering. On the same day, the United States District Court for the Eastern District of New York issued an arrest warrant for the appellant.[6]The facts underpinning these allegations are that between June 2017 and February 2019 it is alleged that the appellant, along with his co-accused, Stephen Burton, defrauded dozens of investors out of at least $99 million. It is alleged that they perpetrated these frauds using the trade name Bordeaux Cellars, and using two private limited companies, Bordeaux Cellars Limited, which was registered in Hong Kong, and Bordeaux Cellars London Limited, registered in London. Mr Burton was the founder and Chief Executive Officer of Bordeaux Cellars, whilst the appellant was the Chief Financial Officer and Operations Manager.[7]Between June 2017 and February 2019, Bordeaux Cellars was operated by Mr Burton and the appellant as a broker of term loans. Term loans are loans with a specific maturity date, and in the particular context of the alleged offending, Mr Burton and the appellant represented to investors and potential investors that the loans which were made through Bordeaux Cellars using the investors’ capital were secured by specific bottles of wine owned by the purported borrowers under the term loans scheme.[8]The prosecution’s case is that Mr Burton and the appellant, along with others, made misrepresentations in relation to the existence of the term loans; the role of Bordeaux Cellars as a broker of the term loans between investors and borrowers; and the existence, name, vintage and value of the wine that was being pledged, along with the number of bottles which were the collateral for the term loans. The investment opportunity was marketed, amongst other places, at investor conferences sponsored by a company called Sovereign Man, who offer investment and financial advice in their publications. Sovereign Man is a company operated by James Hickman, who is an American citizen. At these conferences, which were held in the United States and other countries such as Mexico, the defendants presented to prospective investors the opportunity to invest in the term loans which were being brokered by Bordeaux Cellars.[9]In particular, Mr Burton and the appellant represented to prospective investors firstly, that Bordeaux Cellars offered an opportunity to invest in term loans with individual borrowers, or companies controlled by borrowers, that would generate quarterly interest payments. Secondly, they represented that the term loan would be secured by a chattel mortgage on specific bottles of valuable wine owned by the borrower. Thirdly, they represented that Bordeaux Cellars would maintain custody of the specific bottles of wine which were pledged by the borrowers and they would be stored in an appropriate storage facility. Fourthly, it was represented that the loan would be for an amount equal to at most 35 to 45 per cent of the value of the specific bottles of wine which were pledged as collateral. In addition to the investors who fell victim to this fraud, Mr Hickman also has personal knowledge of the representations made by the appellant and Mr Burton at the Sovereign Man conference. In the extradition request, it is recorded that there is evidence from individual investors recording the nature of the representations which have been set out above.[10]Documentation in respect of the term loans was signed by either or both of Mr Burton and the appellant. Investors in the term loans received documentation reflecting the identity, vintage and number of bottles of wine pledged, and assuring that the loan offered was 35 to 45 per cent of the value of the wines used as security. Within the extradition request it is recorded that Mr Burton and the appellant induced investors to invest in excess of approximately $99.4 million into the term loans which were purportedly brokered by Bordeaux Cellars.[11]The extradition request sets out the results of the investigation into Bordeaux Cellars and records the following findings. Firstly, the inventory records from the storage facility identified in the Bordeaux Cellars agreements reflected that in fact Bordeaux Cellars had thousands fewer bottles of wine in its custody than were claimed in the loan documentation. Secondly, the financial records from bank accounts used and operated by Bordeaux Cellars reflected that incoming deposits were made by victim investor lenders and were not directed to individual borrowers as promised in the loan documentation, but were rather used to make payments to other Bordeaux Cellars investors or misappropriated by Mr Burton and the appellant for their personal use. In this way, Mr Burton and the appellant were able to support the continuation of these schemes and entice additional investors to part with their money, thereby generating additional illicit profits.[12]The evidence of individual investors indicates that both the appellant and Mr Burton corresponded with them in relation to the agreements and payments, as well as discussing appraisal and purported wine collections. Several of the victim investors described the appellant as their main point of contact. By way of example, on 8 July 2018 the appellant sent an email to a Mr Danilov (a resident of Brooklyn, New York, who had invested $150,000 in a loan brokered by Bordeaux Cellars) purporting to contain an appraisal of the specific wine collection securing Mr Danilov’s loan. However, the extradition request records that there was no record of these wine bottles being stored in the Bordeaux Cellars’ storage facility. On 10 July 2018 Mr Danilov sent his $150,000 investment via a wire transfer to an account held in the name of Bordeaux Cellars in the UK. Following receipt of the funds, no money was transferred to the party named as the borrower in Mr Danilov’s loan agreement. Instead, after these funds had been received, more payments equivalent to fraudulent “interest” payments were sent to other investor victims or were misappropriated by Mr Burton and the appellant. The facts of this specific example form the basis of count two on the indictment.[13]From June 2017 until December 2018 the investors in Bordeaux Cellars term loans received interest payments and at the end of the term of their loan had the choice to either receive back the principal or roll it into another loan. Several investors invested multiply in loans purportedly brokered by Bordeaux Cellars. In February 2019 all interest payments on the term loans ceased. Several of the investors attempted to contact the appellant and Mr Burton without success. On 28 January 2019 one victim attempted to call the London office for Bordeaux Cellars which had been specified on a business card and was told by the person answering the phone that there was no firm known as Bordeaux Cellars at that office. In March 2019 an investor sent an email to the appellant asking about the delayed interest payments and the appellant responded that he was waiting for an authorisation. The payment of interest was never made, and the appellant never responded to further messages.[14]It appears that in March 2019 Mr Burton was arrested and was remanded to HMP Wandsworth. The appellant was at large and thought to be abroad. Mr Hickman was, through a company, coordinating civil proceedings against Mr Burton and the appellant, along with Bordeaux Cellars London Limited and Bordeaux Cellars Limited, as well as with Octavian Wine Services Limited and Big Yellow Group PLC, for the purpose of obtaining urgent interim relief by way of freezing injunction and Norwich Pharmacal order. Within the papers before the judge was the skeleton argument on behalf of the claimants in the civil proceedings, which set out that at that time the matter was being investigated by the Kent Police. The Kent Police advised the representatives of the claimants in the civil claim that they were treating the business of Bordeaux Cellars as a fraud and had arrested Mr Burton and carried out raids on properties concerned. Mr Burton’s laptop had been seized by Kent Police, and it was the view of the Police in the light of the nature of the financial arrangements and the way in which money was treated, that this was a Ponzi scheme.[15]On 15 March 2019, Mr Burton pleaded guilty to charges of money laundering which ultimately led to him being sentenced in September 2019 to a period of four years’ imprisonment. The respondent’s authorities had been in contact with the Kent Police in relation to their investigation of the fraud. In June 2019, they were advised of the arrest of Mr Burton on money laundering charges associated with the Bordeaux Cellars fraud, and by October 2019 the advice which the respondent had received from the Kent Police was that they did not intend to further investigate the Bordeaux Cellars fraud.[16]For the purposes of the hearing before the judge, evidence was lodged on behalf of the appellant in relation to the circumstances in which he would be held pending his trial. In summary, the concerns related to the detention of the appellant within the MDC Brooklyn facility whilst he would be awaiting his trial. Concerns were expressed in relation to the conditions in which he would be held, both as to the limited recreation time he would be granted as well as the limited access to any social visitation. Conditions inside the prison were said to be likely to expose him to routine violence, drug use, extortion and harassment, which would have a severe impact upon his mental and physical health. If he were sentenced to a term of imprisonment, he would be assigned to a heightened prison level on the basis that he is not a US citizen. In higher level prisons, he would be exposed to harsher and more dangerous conditions than most other inmates with US citizenship. Visiting and maintaining family ties would be extremely difficult, especially with friends and family outside the United States.[17]In the context of the appeal, reference was made to the decision of the United States District Court Southern District of New York in the case of the United States of America v Gustavo Chavez, in which Judge Jesse Furman referred to the significant problems in the MDC Brooklyn facility and concluded that the conditions at the prison justified the conclusion that there were exceptional circumstances entitling the court to leave the defendant on bail after entering a plea to a drugs offence. The judge described the conditions at MDC Brooklyn as “dreadful” and focused on the inordinate amount of time prisoners spent in lockdown, the slow provision of necessary medical and mental health treatment to inmates and the poor physical conditions pertaining at the prison. For these reasons, the judge concluded that the conditions at the MDC constituted exceptional reasons why the detention of a defendant, who did not pose a risk of flight or danger to the community, would not be appropriate. The judge noted other similar decisions that had been reached in other cases.[18]In response to these contentions, the respondent produced evidence as to the improvement in conditions since the decision in the case of Chavez. Further resources had been devoted to improving staffing levels and further, more intensive, efforts had been made to safeguard inmate safety and security. Changes have been made to allow access to legal representation and provide avenues for redress in the event of failings at the MDC. In relation to the case of Chavez itself, the additional evidence drew attention to a subsequent case in which the chief judge of the Southern District of New York, Chief Judge Laura T. Swain, had explained that the case was one which depended on its own facts, including, in particular, the circumstances of the defendant himself. In the context of the evidence before the judge, the respondent produced evidence from the Federal Bureau of Prisons (“the BOP”) to address the concerns which had been raised in relation to the ability of the BOP to cater for the medical care needs of the appellant. Within this further information, the evidence detailed the extent of medical care for both physical and mental health issues provided within the BOP estate. The evidence also addressed the opportunities for the appellant to raise grievances in relation to the conditions of his incarceration with BOP staff when he was in one of their facilities.[19]The evidence responded specifically to the complaints raised in relation to MDC Brooklyn. This confirmed that whilst it would not be the decision of the BOP as to where the appellant was housed prior to his trial, the MDC was a location where he might be accommodated. In the evidence presented to the judge, it was asserted that the concerns which the appellant raised about overcrowding, lack of access to reasonable medical care, staff shortages, proper food and sanitation and lack of access to counsel were not deficiencies of which the BOP was currently aware. Further detail was provided in relation to these issues identifying the current level of provision of medical care and staffing levels, as well as information about access to proper food, sanitation and heating within MDC Brooklyn.[20]In his evidence to the judge, the appellant explained his background and upbringing and discussed his previous offences of dishonesty. He explained that he had been involved with Bordeaux Cellars from around the summer of 2017 to December 2018/January 2019. In December 2018, he and his family had travelled in Asia for a few months and then returned to Ireland. As he was unable to find work, they returned to the UK in February 2020. He was offered a job in Preston in February 2020 and from then onwards, whilst he could work from home in Tunbridge Wells several days a week, he was driving backwards and forwards between Preston and the family home in Tunbridge Wells each week.[21]The appellant explained that he had been married to his wife, Fiona, for many years and that they had a son and a daughter who were 31 and 28 years old respectively. The children and Mrs Fuller live in a flat in Tunbridge Wells, and the children are providing care for Mrs Fuller on the basis of her medical conditions. In addition to dealing with the circumstances of both the allegations against him and the civil proceedings which have been described above, the appellant addressed his health. He explained that he had high blood pressure, which was the subject of medication, and that he required a steroid nasal spray for breathing difficulties.[22]His mental health had declined since he had been on remand in prison and this had deteriorated to the extent that he was having suicidal thoughts. He had received support from the mental health team in prison to address this. These mental health issues were addressed by Dr Vivek Furtado in a psychiatric report dated 19 August 2022. The essence of Dr Furtado’s report is that the appellant meets the criteria for the diagnosis of an adjustment order, prolonged depressive reaction, the onset of which was related to an identifiable psycho-social stressor which, in the appellant’s case, was his remand into prison with the accompanying risk of extradition to the United States. Dr Furtado notes that the appellant’s mental state would need careful monitoring if a decision were made to extradite him, and input would be required at a similar level to that available in UK prisons in order to manage his risk and his mental ill-health. If a decision was made not to extradite him, Dr Furtado indicated that it would be very likely that his mental health would improve, and that the prognosis for the adjustment order was considered to be good once the stressor or consequence had been removed.[23]Evidence was also provided in relation to the medical circumstances of the appellant’s wife. In relation to her physical health, she has been diagnosed for many years with polycystic kidneys, which led to the removal of her left kidney and a kidney transplant in 2018. In addition to the problems with her kidneys, Mrs Fuller has type 2 diabetes, diverticulitis, visual hallucinations, heart disfunction, peripheral neuropathy and temperature dysregulation. She is recorded to have suffered a subarachnoid haemorrhage as well as bone disease and a left ankle injury. As a result of these numerous chronic conditions, Mrs Fuller takes several medications. Mrs Fuller is heavily reliant upon her daughter for most domestic chores at home.[24]Mrs Fuller also suffers at present with poor mental health and suicidal ideation. She explained to Dr Furtado that she had regular passive suicidal ideation, and if she was to end her life, she had a significant amount of medication which she could consume in order to achieve this, arising out of the medication she has for her various conditions. In particular, she disclosed to Dr Furtado wanting to end her life if the appellant were to be extradited. She expressed the view that her life would not be worth living if he were extradited and she would end it by taking an overdose of medication. Dr Furtado diagnosed Mrs Fuller as suffering a severe depressive episode without psychotic symptoms which he attributed to her chronic physical health problems and the ongoing case against the appellant. She was also diagnosed as meeting the criteria for a panic disorder, as well as a mild cognitive impairment as a consequence of significant short-term memory problems. Dr Furtado indicated that she would benefit from cognitive behavioural therapy to deal with her depression and panic attacks, and that were the appellant to be extradited, then Mrs Fuller’s risk of suicide would be very high.[25]Evidence was also provided by the appellant’s son and daughter. In their evidence they explained the extent to which they provide care, including personal care as well as help and support, to their mother, who is entirely dependent upon them for all aspects of day-to-day living. They also provide an explanation of the impact which the proceedings are having on the health of their parents.[26]In the context of the appeal, Dr Furtado has produced two further psychiatric reports in relation to Mrs Fuller dated 31 July 2023 and 18 September 2024. The conclusions of those reports are, in essence, that Dr Furtado’s diagnosis of Mrs Fuller’s mental health difficulties remains the same, along with his assessment of her suicide risk. In addition to this evidence from Dr Furtado, there are further updating statements from Mrs Fuller and the appellant’s son and daughter in which they record the continuing physical and mental health difficulties that Mrs Fuller has faced since the hearing before the judge. She has had hospital admissions for kidney disease, diverticulitis, gastroenteritis and suffered infections. Her daughter has, as a consequence of the judge’s decision, suffered a breakdown in her mental health leading her to be in need of medical treatment and rendering her unable to work or care for her mother as she used to. Those responsibilities now fall on Mrs Fuller’s son, who explains in his statement how he is now responsible for caring for his mother and undertaking all of the daily chores required to run the household.[27]Following the hearing, on the 25 February 2025 a Divisional Court of William Davis LJ and Johnson J handed down judgment in the case of Weinzierl v USA [2025] EWHC 391 (Admin). The case concerned the extradition of that appellant to the United States for a number of allegations of money laundering. One of the issues which was raised by the appellant in that case was the question of whether or not the detention of that appellant at MDC Brooklyn would give rise to a real risk of a breach of Article 3 of the ECHR. Paragraphs 128 to 137 record the evidence which the court received in relation to the circumstances at the MDC Brooklyn and also an assurance which had been given as to the accommodation in which that appellant would be held being of adequate and appropriate quality. Having noted that the assurance went a long way towards answering the concerns which have been raised in that case in relation to issues such as overcrowding, understaffing, visiting arrangements and time outside cells, the court nonetheless went on to provide as follows in paragraph 150:
“It does not, however, adequately address the issue of cell-space. There is no precise correlation between the eighth amendment to the United States constitution and article 3 ECHR. The assurance to comply with the constitution does not therefore necessarily guarantee compliance with article 3 ECHR. Cell-space is measured in a different way by the United States authorities compared to the approach taken in Muršić, and, in particular, it includes the space occupied by a “sanitary facility” (which in Muršić was taken as being 1.9m2). Given that the respondent’s own documents suggest that a double cell might be as small as 6 square metres (which includes the space occupied by a sanitary facility) it follows that the available space for each of the two inmates might well be less than 3 square metres. On this basis, there are substantial grounds for believing that there is a real risk that the appellant will be exposed to inhuman or degrading treatment. The decisions in Hafeez and BarbarAhmad do not assist the respondent, because they do not address this point.”
[28]In the light of this conclusion, the court sought further assurances in relation to cell space and whether there would be compliance with Article 3 in relation to the conditions in which the appellant was to be held.[29]On 4 March 2025 the appellant in the present case wrote to the respondent raising questions in respect of the evidence which was provided in the case of Weinzierl and whether further information was to be sought in respect of Mr Fuller’s case as a result of the judgment in Weinzierl. The initial response of the respondent in the present case was that there was no intention to seek further information in relation to this appellant’s case. Following this, the appellant indicated that there would be an application to amend to plead a ground under Article 3 which was subsequently permitted, leading to an exchange of written submissions on the question of whether or not permission should be granted on Article 3 grounds.[30]It appears from the written submissions provided by the respondent that in the case of Weinzierl the assurance required by the Divisional Court was provided and that on 6 March 2025 the court dismissed the appeal based on the Article 3 ground (albeit the appeal was allowed on other grounds). From the quotation provided from the court’s order, it appears that further information was provided, indicating that at least 3m2 of personal space would be made available to the appellant whilst detained at the MDC Brooklyn and therefore there was no real risk the appellant would suffer inhuman or degrading treatment as a result of his detention in that facility.[31]Along with the respondent’s written submissions, further material has been provided in the form of two letters from the US Department of Justice Federal Bureau of Prisons, both dated 14 April 2025. The first letter provides clarification in relation to the material which was provided to the court in the case of Weinzierl and clarifies that what was referred to in that case as the Federal Bureau of Prisons “rated capacity for Bureau facilities” is not a reliable source of the actual measurements of personal space available to prisoners. The first letter confirms that having received actual measurements for each housing units in the MDC and deducting space for sanitary facilities, all of those housing areas provide each occupant with at least 3m2 of personal space. The second letter provides specifically as follows in relation to the appellant:
“This letter concerns the personal space that will be available to Mr Wellesley if housed at the Metropolitan Detention Centre (MDC) Brooklyn, NY. As set forth in the attached letter, after deducting space for sanitary facilities, all housing areas at the MDC provide each occupant with at least 3m2 of personal space. Therefore, Mr Wellesley would have at least 3m2 of personal space if housed at the MDC.”

The Decision of the District Judge

[32]The district judge set out the basis for the extradition request which has been set out above. He also recorded the expert evidence in relation to the health of both the appellant and his wife, as well as further expert evidence in relation to the operation of the legal system in the United States, insofar as it bore upon the issues of whether it was practical to have a trial of the extradition matters in the UK and the likely sentencing regime if the appellant were to be convicted. In addition, the judge set out the evidence which had been presented in relation to prison conditions, in particular in MDC Brooklyn. The judge recorded that the appellant’s expert witness in relation to United States legal procedures was pressed, in particular, in relation to his contention that a United States court could compel a United States citizen witness to travel to the UK to give evidence in court against their will. The expert witness was not able to produce any example of a judge in a United States court ever forcing a reluctant witness to physically leave the jurisdiction of the United States in order to give live evidence in a foreign court. As a consequence, the judge concluded that the evidence of this expert witness had to be approached with “not inconsiderable caution”.[33]Having heard the evidence, and in particular having heard the evidence being tested, the judge concluded that where there was a difference of opinion or emphasis provided by witnesses called by the appellant and by the respondent from expert professional witnesses, the judge preferred and accepted that which was provided by the respondent. In particular, he bore in mind that extradition is based upon the premise that extradition requests are made, absent cogent evidence to the contrary, in good faith. The judge noted bad faith was not alleged in the present case. The judge concluded that the evidence provided by the respondent in support of the request was compelling. Notwithstanding the evidence called by the appellant in relation to prison conditions, the judge concluded that these had been appropriately addressed by the respondent in its evidence, and that the appellant had failed to demonstrate that there was any real risk of an Article 3 breach occurring were he to be extradited. Furthermore, the evidence provided by the respondent satisfied any concerns that the appellant might not receive a fair trial if he were to be removed to the United States as required by Article 6. In particular, the judge records his conclusion that the appellant’s expert witness in relation to the US legal system was “severely weakened by his insistence that a Federal Judge in the USA is able to compel a reluctant witness to leave the USA and travel to a foreign country (in this case the UK) to give evidence in court”. The judge rejected that aspect of the witness’s evidence in its entirety.[34]The judge proceeded to consider the various grounds upon which extradition was resisted. For the purposes of this appeal, two of those grounds are directly relevant. The first is the forum bar provided by section 83A of the Extradition Act 2003, which is set out below. The judge set out his conclusions in respect of each of the elements under section 83A(2), having been satisfied, pursuant to section 83A(2)(a) of the 2003 Act, that a substantial measure of the activity concerned in the request was performed in the UK.[35]The judge’s conclusions in relation to the question of the location of the loss or harm pursuant to section 83A(3)(a) was as follows:
“226) s.83A(3)(a) Loss / Harm: One of the questions for this Court to consider, as defined by s.83A(2)(a) of the 2003 Act, is whether a substantial measure of the activity which is ‘material to the commission of the extradition offence’ was performed in the UK (s.83A(6)). 227) I find that it is reasonable to infer from the facts of the case as put against Mr Wellesley that a substantial measure of his alleged relevant activity took place in the UK. Accordingly, I shall proceed to consider the question posed in s.83(2)(b) that is to say whether, having regard to the specific matters relating to the interests of justice – and only those matters – extradition should not take place. 228) Having considered the competing submissions and the facts as provided to this court, I am entirely satisfied that a substantial portion of the loss or harm (albeit this may well be less than less than 50% of the total amount said to have been `lost` as a result of the fraudulent scheme in question) is said to have occurred in the USA. In Love v USA at [28] the court ruled that this will usually be “a very weighty factor”. 229) The number of victims from the US is close to (or indeed may just be more than) 50% of those said to have been defrauded worldwide. The amount said to have been lost by the USA complainants alone appears to be in excess of $20,000,000 and is more than those said to have been lost by UK residents. 230) Accordingly, in my opinion, I find that this to be a factor that weighs against the Forum bar.”
[36]The judge then turned to the interests of the complainants in relation to the extradition offences, and his conclusions in respect of section 83A(3)(b) were as follows:
“231) s.83A(3)(b) Interests of Victim / Complainant : I remind myself of the ruling of the High Court in Wyatt v USA [2019] EWHC 2978 (Admin) at §15 as follows : ‘`...The interests of the victims of an alleged extradition offence include the convenience of giving evidence but are not limited to that...the victims of a crime have an interest in the legal proceedings beyond the narrow compass of being a witness and giving evidence. They should, if they wish, be able to attend a trial. They should be in a position to have continuing contact with the prosecuting authorities. They are likely to wish a prosecution to take place in the jurisdiction where they suffered the harm relied upon, subject to their domestic legal order culminating, if there is a conviction, in an appropriate local sentence. This case involves corporate victims, although acting through individuals and owners... The judge cannot be faulted for having considered this to be a statutory factor which weighed in favour of extradition, nor for thinking it an important matter...’` 232) Furthermore in Ejinyere v USA (2018) EWHC 2841 (Admin) (`Ejinyere`) para.28 the High Court ruled … `there is an obvious interest, given the victim of the alleged fraud was the US Government and taxpayers, that the offences should be prosecuted publicly in a US court, subject to US law and, if there is a conviction, punishment…`` 233) As mentioned heretofore, the evidence provided to this court demonstrates that a large number (approximately one half) of the total number of complainants / victims reside within the USA. 234) The victims’ interests are said to prefer trial in the USA, under local laws (see Love v USA at para. 29 and see also Scott v USA [2018] EWHC 2021 (Admin) at para. 43. 235) In my view, it is a reasonable inference to draw that it would also be preferable for such victims to be able – should they so choose – to attend their local court (if practicable), to follow those proceedings and – if a conviction arises – to either have some input in relation thereto or to observe. I find that this factor weighs heavily in favour of extradition and weighs against the forum bar.”
[37]So far as is relevant for the purposes of this appeal, the judge next considered the issued raised by section 83A(3)(d) in respect of the availability of evidence. His conclusions in respect of that issue were comprised in the following extract from his judgment:
“243) When applying criteria such as matters (d) and (e) it is important to keep a grip on what is practical and what is effective: see Patman & Safi v Slovakia (2020) EWHC 3512 (Admin) which, albeit a Part 1 request, has equal value to Part 2 requests. see paras.26 &27… 245) At para. 28 of his ruling in Ejinyere, whilst the Lord Chief Justice recognized that theoretically it may well be possible for witnesses who were willing to do so, to travel to the UK, or to give their evidence via video link, he took the view that the latter is considered to be `seldom easy`. 246) The learned Judge continued (at para. 29) that this Court is ……‘entitled, in our view, to recognize that adducing live evidence in the UK would be less straightforward than in the US, to note the fact that the documentary evidence was extensive and to conclude that the process of obtaining the evidence was likely to be less certain than in the US...’. 247) I am prepared to accept that it may be theoretically possible for documentary evidence to be physically transmitted from the USA to the UK. However I am entirely satisfied that this is not at all an easy task to satisfactorily accomplish, made all the more complicated by the very large number of complainants located not only in the US but also in many other countries, and what will doubtless be very substantial documentary material relied upon. 248) I also find that were it more practicable for such evidence to be transmitted electronically it would be much more appropriate for professional (as well as lay) witnesses having to make reference to documentary evidence to do so in the country where that documentation is physically situate. 249) The taking / receiving of such evidence via videolink with witnesses in the USA referring to documents that may have made their way to the UK (more likely by electronical means) is clearly less than ideal and may be impracticable and ineffective (per Patman & Safi above). I have little difficulty in finding that all this is a factor against the Forum bar.”
[38]The judge proceeded to consider the questions arising under section 83A(3)(f) in respect of the desirability and practicability of all prosecutions relating to the extradition offences taking place in one jurisdiction in the light of the matters specifically referred to in section 83A(3)(f)(i) and (ii). The conclusions which the district judge reached in relation to those matters were as follows:
“259) s.83A(3)(f) All prosecutions in one Jurisdiction: This section of the 2003 Act acknowledges that there is broad public interest in maintaining a consistency of proceedings in relation to co-defendants, and of verdicts. Albeit Mr Burton has been tried in the UK for money laundering crimes that may be said to have arisen from part of the same general criminal conduct, I am told that the USA authorities continue to seek his extradition from Morocco to stand trial in the USA for matters relating to the substantial criminal conduct also alleged against Mr Wellesley. 260) I am satisfied that it is undesirable to try co-conspirators in different jurisdictions. I find that it is in the interests of justice for all prosecutions to take place in the same jurisdiction. This remains the position even where it may not be possible to have joint trials: see USA v McDaid (2020) EWHC 1527 (Admin) at paras 45 & 49). 261) On the information available to this court I find that this is a factor against the Forum Bar.”
[39]Finally, in connection with the forum bar, the judge considered the question of connections to the UK pursuant to section 83A(3)(g). The judge’s conclusions were as follows:
“262) s.83A(3)(g) Connections to the UK: Mr Wellesley is a UK national who lives here and I am entirely satisfied that he has substantial ties to the UK. His wife and their 2 adult children, like him, are UK nationals who all regard England as their home. 263) I remind myself of the dicta of the court in Love v USA specified limitations on this factor (see paras. 40). The concept is not …..``… so elastic that it replicates the full scope of Article 8. No exhaustive definition can be attempted judicially, but `connection` is closer to the notion of ties for the purposes of bail decisions…… The risk of suicide upon extradition, or serious deterioration in health would not, of itself, create a connection with the UK. …. It is also difficult to see that the prospect of being prosecuted here shows a connection to the UK….` 264) Having considered the evidence provided and the submissions made, I find that this is a factor in favour of the Forum Bar.”
[40]The district judge drew all of these threads together and expressed his conclusions in relation to the forum bar as follows:
“265) s.83A (Forum) CONCLUSION: Put shortly, I have found a number of factors to be against but only one (the defendants` UK connections) to be specifically in favour of the Forum Bar, with one being a neutral factor (Lack of UK Prosecutor`s decision whether to prosecute). 266) I reject this challenge for reasons set out heretofore as I am not satisfied that it is in the interests of justice that the extradition of Mr Wellesley the USA to face criminal prosecution should not take place. Accordingly this challenge must fail.”
[41]The judge went on to consider the grounds raised in relation to Article 8 and set out in his judgment the relevant legal principles which were to be applied. The judge set out, in accordance with the decision of the Divisional Court in Celinski the balance of factors in favour of and opposed to the granting of extradition. The judge then went on to formulate his specific findings and rulings in respect of the Article 8 matters which were raised before him. His judgment provides as follows in respect of these issues:
“354) Article 8 Balancing Exercise: (a) Factors said to be in Favour of Granting Extradition: (i) There is a strong and continuing important public interest in the UK abiding by its international extradition obligations. (ii) The seriousness of the criminal conduct that he faces at trial. 355) (b) Factors said to be in Favour of Refusing Extradition (i) The Defendant is a UK citizen (as are his wife and their 2 adult children). He has lived here for most of his life. (ii) He adds that until his arrest and remand by this court, he had been living in Preston, but that he had been returning to be with his family on a regular basis and that he had been providing important care for his wife, albeit from a distance during the week. Even from Wandsworth prison during his present remand, he says that he has been able to give her (and his adult children) as much comfort and support as the situation has allowed. 356) Article 8 Findings and Ruling: I find that it will not be a disproportionate interference with the Article 8 Rights of the Defendant or of his close family members for extradition to be ordered. My reasons and findings are as follows: (i) It is very important for the UK to be seen to be upholding its international extradition obligations. The UK is not to be considered a `safe haven` for those sought by other Convention countries either to stand trial or to serve a prison sentence. (ii) In my opinion, the criminal conduct set out in the EAW is very serious and, in the event of a conviction in the UK for like criminal conduct, a prison sentence of some length may very well be imposed, noting his unattractive list of previous convictions. (iii) It is appreciated that there will be hardship caused to the Defendant and to his wife as well as to their adult children. For a number of months prior to his arrest, the Defendant says that he had been living in Preston, Lancashire during the week in a property owned by the partner of a friend of his. He was apparently allowed to reside there rent-free in exchange for decorating the premises. (iv) It is not known what paid employment work he engaged in while living in Preston. It is noted that, notwithstanding his wife`s ongoing health issues, he thought it appropriate to be living hundreds of miles away from his family throughout the week before taking the long journey down to where they live in Kent, and then undertaking the lengthy return to Preston. It is understood that this arrangement had continued for some months prior to his arrest for this matter. (v) During that period – as had occurred when the defendant had previously served terms of imprisonment, and as has occurred since his arrest and remand into custody by this court – the day to day care of Mrs Fuller has been dutifully carried out by their adult children (and continues to date), the reasonable inference must be that those care arrangements have been satisfactory. (vii) I also note that Ms Goddard has made important, helpful proposals to the family with regard to potential intervention of social services and Dr Furtado has made certain suggestions with regard to trying to alleviate Mrs Fuller`s ongoing health issues (including should this worsen were extradition to be ordered). It is believed that the family would prefer to continue to care for Mrs Fuller rather than have outside help, albeit they are now much better informed than previously in respect of options available. (viii) With reference to hardship, as counsel will be well aware, that of itself is not sufficient to prevent an order for extradition from being made. (ix) I take into account, in an Article 8 balancing act context, the time that has passed from when the alleged offending conduct is said to have taken place to date, but I do not find that this tips the scales sufficiently in favour of the Defendant so as to render surrender Article 8 disproportionate.”

The Law

[42]As set out above, the appeal is advanced on three grounds. The first relates to the forum bar under section 83A of the 2003 Act. The second relates to the judge’s conclusions in respect of Article 8. The third, which has been abandoned, relates to the conditions in which the appellant would be held pending trial and a real risk of a breach of Article 3. The question of the forum bar is governed by the bespoke provisions of section 83A of the 2003 Act, which provide as follows:
“83A(1) The extradition of a person (“D”) to a category 2 territory is barred by reason of forum if the extradition would not be in the interests of justice. (2) For the purposes of this section, the extradition would not be in the interests of justice if the judge— (a) decides that a substantial measure of D's relevant activity was performed in the United Kingdom; and (b) decides, having regard to the specified matters relating to the interests of justice (and only those matters), that the extradition should not take place. (3) These are the specified matters relating to the interests of justice— (a) the place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur; (b) the interests of any victims of the extradition offence; (c) any belief of a prosecutor that the United Kingdom, or a particular part of the United Kingdom, is not the most appropriate jurisdiction in which to prosecute D in respect of the conduct constituting the extradition offence; (d) were D to be prosecuted in a part of the United Kingdom for an offence that corresponds to the extradition offence, whether evidence necessary to prove the offence is or could be made available in the United Kingdom; (e) any delay that might result from proceeding in one jurisdiction rather than another; (f) the desirability and practicability of all prosecutions relating to the extradition offence taking place in one jurisdiction, having regard (in particular) to— (i) the jurisdictions in which witnesses, co-defendants and other suspects are located, and (ii)the practicability of the evidence of such persons being given in the United Kingdom or in jurisdictions outside the United Kingdom; (g) D's connections with the United Kingdom. (4) In deciding whether the extradition would not be in the interests of justice, the judge must have regard to the desirability of not requiring the disclosure of material which is subject to restrictions on disclosure in the category 2 territory concerned. (5) If, on an application by a prosecutor, it appears to the judge that the prosecutor has considered the offences for which D could be prosecuted in the United Kingdom, or a part of the United Kingdom, in respect of the conduct constituting the extradition offence, the judge must make that prosecutor a party to the proceedings on the question of whether D's extradition is barred by reason of forum. (6) In this section “D's relevant activity” means activity which is material to the commission of the extradition offence and is alleged to have been performed by D.”
[43]The power for the High Court to consider an appeal against the decision of the judge to send a case to the Secretary of State under Part 2 of the 2003 Act is contained within section 103. Pursuant to section 104, on an appeal the High Court may allow the appeal, dismiss it or direct the judge to redecide a question which was decided by the judge at the original hearing. The appeal may only be allowed if the conditions in section 104(3) are satisfied. Those conditions are as follows:
“(a) the judge ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question in the way he ought to have done, he would have been required to order the person’s discharge.”
[44]The approach which ought to be taken in an appeal of this kind was set out in the decision of the Divisional Court in Love v USA [2018] 1WLR 2889 in the following terms:
“25 The statutory appeal power in section 104(3) permits an appeal to be allowed only if the district judge ought to have decided a question before him differently and if, had he decided it as he ought to have done, he would have had to discharge the appellant. The words “ought to have decided a question . . . differently”
(emphasis added) give a clear indication of the degree of error which has to be shown. The appeal must focus on error: what the judge ought to have decided differently, so as to mean that the appeal should be allowed. Extradition appeals are not re-hearings of evidence or mere repeats of submissions as to how factors should be weighed; courts normally have to respect the findings of fact made by the district judge, especially if he has heard oral evidence. The true focus is not on establishing a judicial review type of error, as a key to opening up a decision so that the appellate court can undertake the whole evaluation afresh. This can lead to a misplaced focus on omissions from judgments or on points not expressly dealt with in order to invite the court to start afresh, an approach which risks detracting from the proper appellate function. That is not what Shaw’s case or Belbin’s case was aiming at. Both cases intended to place firm limits on the scope for re-argument at the appellate hearing, while recognising that the appellate court is not obliged to find a judicial review type error before it can say that the judge’s decision was wrong, and the appeal should be allowed. 26 The true approach is more simply expressed by requiring the appellate court to decide whether the decision of the district judge was wrong. What was said in the Celinski case and In re B (A Child) are apposite, even if decided in the context of article 8. In effect, the test is the same here. The appellate court is entitled to stand back and say that a question ought to have been decided differently because the overall evaluation was wrong: crucial factors should have been weighed so significantly differently as to make the decision wrong, such that the appeal in consequence should be allowed.”[45]In particular, in relation to section 83A(3)(d), Lord Burnett observed as follows:
“36 (d) The availability of evidence for a prosecution in the United Kingdom: there are two aspects to the judge’s appraisal of this factor. First, she accepted the position adopted by Mr Caldwell, and maintained before us, that the evidence to conduct a successful prosecution could be made available in the United Kingdom. It would be in digital form, or given over a video-link if individuals preferred not to travel. Secondly, the judge accepted that there would be substantial inconvenience in making all the evidence available to support a prosecution in the United Kingdom, rather than that the problems, which we do not minimise, would in reality preclude a successful prosecution. Mr Fitzgerald is entitled to put considerable weight on that factor. The nature of the evidence from individuals would probably be that of government or government agency employees, whether in an official capacity or as an individual affected because of their job by the hacking. They do not fall into any particularly sensitive category of witness, such as the victim of violence, or a prisoner. Mr Caldwell submitted that we should accord respect to the judgement of the American prosecutor, recorded by the judge. We do, but it does not paint an especially compelling picture of problems specific to the case. Mr Fitzgerald made the point that there had been an Australian co-conspirator who had been tried already in Australia.”
[46]The court was also concerned in Love with section 83A(3)(g), and the question of connections with the United Kingdom. In respect of that provision, Lord Burnett observed as follows:
“40 (g) Connections with the United Kingdom: The judge was right to reject Mr Caldwell’s submission, repeated with due restraint before us, that the concept of “connection” was a narrow one, confined to connections to the United Kingdom as a state, principally citizenship or right of residence. In our judgment, “connection” goes rather wider than that, without being so elastic that it replicates the full scope of article 8 of the Convention. No exhaustive definition can be attempted judicially, but “connection” is closer to the notion of ties for the purposes of bail decisions. It would cover family ties, their nature and strength, employment and studies, property, duration and status of residence, and nationality. It would not usually cover health conditions or medical treatment, unless there was something particular about the nature of the medical condition or the treatment it required, that connected the individual to treatment in the United Kingdom. The approach of the judge was correct. 41 The risk of suicide upon extradition, or serious deterioration in health, would not of itself create a connection to the United Kingdom. But they would be relevant if they were the consequences of breaking a separate connection, because that would evidence its nature and strength. It is also difficult to see that the prospect of being prosecuted here shows a connection to the United Kingdom. That is not the purpose of paragraph (g). The possibility of prosecution in the United Kingdom is covered by other factors. We reject the suggestion made on behalf of Mr Love that prosecutorial practice in other hacking cases was somehow relevant to how Mr Love’s connections should be seen.”
[47]Finally, in respect of the forum bar, the overall conclusions in the case of Love were set out by Lord Burnett in paragraphs 42 to 44 of the judgment in the following terms:
“42 There are two areas where we find ourselves in respectful disagreement with the judge on her analysis of the factors which determine where the interests of justice lie in the forum bar: (a) the prospect that Mr Love would be unfit to plead, and (b) the significance of the absence of a prosecutor’s view. By themselves, they would not have persuaded us that she was wrong in the conclusion that she reached. But additionally, in our view she significantly underplayed the weight that should be attached to her conclusion that the prosecution could realistically proceed in the United Kingdom, albeit rather less conveniently for the prosecution. The location where the harm occurred was rightly given very great weight, as too were the interests of victims, subject to what we have said about fitness to plead. 43 What persuades us that, in those circumstances, her decision was wrong, is the nature of Mr Love’s connection to the United Kingdom. By itself, the fact that he is a British national, long resident here, with a girlfriend, and engaged in studies, would not have persuaded us that the decision was wrong. But there is a particular strength in the connection to his family and home circumstances provided by the nature of his medical conditions and the care and treatment they need. This is not just or even primarily the medical treatment he receives, but the stability and care which his parents provide. That could not be provided abroad. His entire well-being is bound up with the presence of his parents. This may now have been enhanced by the support of his girlfriend. The significance of the breaking of those connections, as we come to next, demonstrates their strength. 44 We do not accept the submission that the connections make an overwhelming case, regardless of whether the other factors could not tell in favour of extradition. But they, with the other factors which we consider should have told against extradition, outweigh those factors favouring extradition sufficiently clearly to persuade us that the judge was wrong on this question. In this case the forum bar found in section 83A of the 2003 Act operates to prevent Mr Love’s extradition to the United States.”
[48]The case of Ejinyere v USA [2018] EWHC 2841 (Admin) was a further case from a Divisional Court including Lord Burnett LCJ and addressing an appeal in relation to the forum bar. Again, the court addressed itself to a number of the elements of section 83A(3) that were in dispute in that case. In particular, again, there was dispute in relation to the judge’s findings in respect of section 83(A)(3)(d). In respect of this element, the judge recorded that the witnesses involved in any prosecution could, in theory, attend the UK court to give evidence, but that all of the witnesses needed to give evidence concerning the US Revenues Systems documents and procedures would be generally unavailable to attend the trial in the UK. He was also advised that the US would need to seek and obtain permission from a US judge before it could disclose grand jury material to a foreign court or prosecutor. The prosecutors in the US had gathered 165,000 pages of documents and 193,000 items from digital devices. The process of obtaining that material would involve mutual legal assistance and the use of Letters Rogatory, which the judge observed were not pursuant to any treaty and therefore “effectively unpredictable and slow.”[49]Against this background, it was contended by the appellant that the considerations pertinent to section 83A(3)(d) should weigh against the ordering of extradition. The Divisional Court concluded in respect of this issue as follows in the judgment of Lord Burnett:
“28. Mr Hawkes argued that the judge erred in finding that evidence could not be made available. We do not read the judgment as indicating so bald a conclusion. We accept that the difficulties involved in obtaining the attendance of witnesses might be substantially addressed by the use of video links, although, as Mr Summers QC fairly observed, the task of adducing evidence by such means from witnesses who need to speak to large quantities of documentary evidence is seldom easy. 29. The judge was entitled, in our view, to recognise that adducing live evidence in the UK would be less straight forward than in the US, to note the fact that the documentary evidence was extensive and to conclude that the process of obtaining the evidence was likely to be less certain than in the US. 30. On the related issue raised by section 83A(4), namely the desirability of not requiring the disclosure of material which is subject to restriction on disclosure, in the US, we can see no error in the judge’s approach. She observed that the US authorities must obtain permission from a US judge before disclosing grand jury material. That is correct. But she was not suggesting that that would be impossible or even problematic. She was simply noting that this was a process that would have to be completed. As Mr Summers QC puts it “The judge was entitled not to ignore” this factor entirely. 31. In our view, the proper conclusion on specified matter (d) was that evidence necessary to prove the offence was likely to be made available in the UK; but that the process to achieve that end was likely to be complicated and less speedy than in the US. That, to the extent not covered by any other specified factor, would go to weight.”
[50]In the case of Patman and Safi v Slovakia [2020] EWHC 3512, Swift J also had to consider the operation of the forum bar, albeit that in that case it was concerned with a Part 1 case, and the comparable provisions of section 19B of the 2003 Act. The first issue which Swift J had to grapple with was the appropriate approach to the question of the “interests of justice” under the equivalent to section 83A(2)(b). He concluded that the appropriate approach was encapsulated as follows:
“Thus, the notion of “interests of justice” is not a matter at large; rather it is carefully calibrated by the matters listed at section 19(3)1. The objective pursued by section 19B, a curb on claims to exorbitant jurisdiction, is also relevant because this too informs the choice of the matters which are listed in section 19B(3). There are no particular matters arising from the Framework Decision that affect the application of section 19B. There is no counterpart to or herald of section 19B in the Framework Decision. This may well reflect an unspoken premise that prosecutors in Member States will decide whether or not to prosecute cross-border crime by reference to the Eurojust Guidelines, most recently published in 2016 by the European Union Agency for Criminal Justice Cooperation, and will in that way avoid over-reach. Be that as it may, section 19B of the 2003 Act provides a material safeguard against over-reach in addition to the matters set out in the Framework Decision.”
[51]Swift J went on to consider the proper assessment of matters arising under the equivalent of section 83A(3)(d) and (e). His views in relation to how, in particular, these elements of the forum bar should be considered, were set out in paragraphs 26 and 27 of the judgment in the following terms:
“26. The submissions for Mr Patman and Mr Safi emphasise three points. First that matter (d) only concerns the evidence “necessary to prove the offence”; and that this may be less than all the evidence gathered in an investigation; and in this case the evidence gathered in England by the NCA under the joint working arrangement with the NAKA would be sufficient. Second, even if the first point is disregarded, the District Judge placed too little weight on the conclusion that all evidence gathered in the investigation could in principle be transferred to England. For either of these reasons it is submitted matter (d) points against extradition. Third, the District Judge’s conclusion on matter (e) was wrong. He attached too much weight to the difficulties arising if the evidence were to be transferred from Slovakia to England, and insufficient weight to the possibility that witnesses resident in Slovakia might give evidence in English proceedings via video link (something the District Judge did mention when dealing with matter (f), but not when dealing with matter (d)). 27. I reject these submissions for two reasons. The first reason is that none comes to anything more than a submission that the District Judge weighed the evidence wrongly.

(d) and (e), assessments are rarely “right or wrong”

. I can see nothing obviously wrong with the District Judge’s assessment on matter (e); it was a view he was entitled to reach. If any criticism can be made of his conclusion on matter (d) it does not assist the Appellants. To my mind it is odd that when considering matter (d) the District Judge did not consider how the evidence of witnesses who are resident in Slovakia could be made available in proceedings in England. I consider his reference (in his reasoning on matter (f)) that any witnesses resident in Slovakia could give evidence by video link to be altogether too slight a treatment of this point. This leads to my second reason. When applying criteria such as matters (d) and (e) it is important to keep a grip on what is practical and what is effective. Given that the genesis of provisions such as section 19B was to guard against exorbitant requests for extradition it is wrong in principle to apply the section 19B(3) criteria simply to assert an exorbitant jurisdiction for the English court. Put another way, there is no reason either to read or apply the section 19B(3) criteria in a way that would subvert the mutuality or effectiveness of the EAW system. The overall rubric in section 19B(1) is the “interests of justice”. Even though section 19B(3) gives that notion a specific content, matters (d) and (e) must be approached pragmatically paying due regard to the practical requirements of an effective prosecution. Theoretical possibility is not standard. For example, matters (d) and (e) are not invitations to identify either the minimum possible evidence that might suffice to prosecute, or to assume that simply because the technology exists to permit evidence to be admitted remotely that is the only course that may be legitimately be taken. In the present case the Appellants’ submissions not only fail to undermine the District Judge’s conclusions in any way that assists them, they also encourage a rather unrealistic approach to what, in this context, the interests of justice require.”[52]The most recent Divisional Court case bearing upon the forum bar, to which reference was made in the course of argument, was the case of Hamilton v USA [2023] EWHC 2893 (Admin), a decision of Dame Victoria Sharp, President of the King’s Bench Division, and Johnson J. This was a case concerning a fraudulent scheme related to a crypto currency which was, in truth, a Ponzi scheme. There were 3.5 million victims of the fraud, which was valued at £4 billion. Having set out the provisions in relation to the powers on appeal at paragraph 56 of the judgment, the following is observed in relation to the correct approach to this type of appeal:
“56. It is clear, therefore, that the focus is on the first instance judge’s judgment, rather than the appellate court’s own evaluation of the statutory test. However, where the first instance judge’s analysis is flawed, it may then be necessary for the appellate court to undertake that evaluation for itself, in order to determine whether the judge ought to have determined a question differently.”
[53]A brief distillation of the facts of the case of Hamilton are that the appellant and another agreed with a man called Gilbert Armenta to assist in the laundering of €16 million through a business controlled by the appellant called Viola Asset Management (“VAM”). Having had an initial transaction rejected, thereafter Mr Armenta was able, through a series of layered transactions through US bank accounts, to transfer $19 million to VAM’s bank account in London. There was then an attempt to transfer $18.7 million from VAM to a London foreign exchange service to be transferred into an individual’s Euro denomination account. That transaction was rejected, and the money transferred back to VAM. A month later, €16 million was transferred from VAM to bank accounts held by Mr Armenta in Georgia. Of the remaining balance, nearly €400,000 was transferred to a personal bank account operated by the appellant. In late January to early February 2016, Mr Armenta transferred around $40 million in proceeds of the fraud to VAM, and from February 2016 Mr Armenta sought the appellant’s assistance in transferring funds from China to the US. Ultimately, $105 million of the proceeds of the fraud were paid into two bank accounts in China. The appellant was then involved in setting up shell company bank accounts at a bank in China, through which funds from the fraud in China were transferred into funds available in Hong Kong at a Hong Kong foreign exchange payment processor. The appellant, with another, opened an account with the Hong Kong processor and transferred funds to a bank account controlled by Mr Armenta and another. In February 2016, the appellant’s accomplice instructed the Hong Kong processor to initiate a test transaction moving funds from the China accounts holding the proceeds of fraud, through the shell accounts and into the Hong Kong VAM account for onward transmission to the US account. This transaction was successful. Later that month, a German processor of the fraudulent crypto currency transferred €3 million to VAM, and the appellant transferred over €600,000 of these funds into a personal bank account. VAM’s bank notified the authorities of what it regarded to be a suspicious transaction. In March 2016, a further transfer of approximately €3 million to VAM was rejected as its account had been frozen by the bank.[54]The appellant was interviewed by the police in April 2016 and denied any criminal wrongdoing, the issue being that it was the respondent’s case that the appellant could have been in no doubt that Mr Armenta was asking him to launder the proceeds of a serious crime, namely the crypto currency fraud. No criminal charges were brought in the UK, and the police assisted the US authorities with their investigation of matters. Between January and June 2016, after the successful test transaction, the appellant and his accomplice agreed to transfer around $34 million from the China accounts holding the proceeds of the crypto currency fraud, through the shell accounts to the Hong Kong VAM account. Instead of those funds being transferred to the US account, the appellant and his accomplice redirected approximately $32 million from the Hong Kong VAM account to bank accounts they controlled in several Asian and European countries. Some of those transactions involved the use of a bank in New York.[55]Against the background of those facts, the court reached the following conclusions in relation to the considerations raised under section 83A(3)(a) as follows:
“71. There are two features of the offending that make the analysis of harm difficult. One is that the underlying alleged substantive offence (at least so far as count 1 is concerned) is money laundering. The harm that is caused by money laundering is less tangible than harm caused by offences against the person or property. It comprises damage to the integrity of the banking system, tarnishing its reputation and eroding public trust and confidence. So far as count 2 is concerned, Mr Armenta might (at a highly technical and theoretical level) be said to be a victim. He was not a victim in any true sense: what was stolen from him had been stolen by him. The judge said (but in the context of factor (b)) that he was “untroubled by what I consider to be the ‘red herring’ of Armenta’s technical (or moral) status as a victim.”
We agree that Mr Armenta is not properly to be regarded as a victim. Leaving the position of Mr Armenta to one side, the harm occasioned by count 2 concerns the misuse of the banking system. 72. The second factor that makes assessment of harm more difficult is that it is a conspiracy. Different conspirators had different roles. The “extradition offence” is the offence allegedly committed by the appellant (rather than other alleged co-conspirators): section 64 of the 2003 Act defines “extradition offence” by reference to the requested person’s conduct. Further, although this is not spelt out in the indictment, it is clear from the way in which the case is put in the request for extradition that the principal co-conspirator is said to be Mr Armenta. His role within the conspiracy included the laundering of funds through US accounts. Within the overall scheme of the conspiracy, Mr Armenta was principally responsible for the harm caused in the US, whereas the appellant (and Mr MacDonald) were principally responsible for the harm caused in the UK. Mr Armenta has already been prosecuted and sentenced, and a substantial sum of money has been forfeited from him. 73. For these reasons, it is relevant to focus on the conduct of the appellant in entering into the conspiracy, and the harm that the appellant caused (or intended to cause), rather than the harm caused by other co-conspirators. That is so both for the purpose of analysing where “most of the harm” occurred (as required by sub-factor (a)) and also for the purpose of analysing the interests of justice test by reference to the statutory factors. 74. So far as count 1 is concerned, funds were laundered through both US accounts and accounts in the UK. On a strictly arithmetical or balance sheet basis, there may be force in Mr Caldwell’s argument that a greater share of the overall laundering conspiracy took place in the US than the UK. That is because: (a) the total amount laundered through US accounts appears to have been in the region of $150M (paragraph 7 above) whereas the amount transferred through the UK appears to have been a fraction of that (paragraphs 9-11, 16 and 18 above) (b) subject to the monies that were transferred through China, Hong Kong and Germany, all of the monies that were transferred to London came from US accounts, (c) before being transferred to London the monies had been transferred through a number of US accounts (the “layering”), (d) HSBC suspended VAM’s London account in February 2016, so after that point it could not be used to launder funds, (d) there were a number of discrete transactions which involved transfers within the US system which did not result in a transfer to the UK. 75. So far as the appellant’s role in the conspiracy is concerned, however, the greater share of the laundering that is attributable to his conduct occurred in the UK. He does not appear to have had control of any US accounts. He transferred large amounts of money through a number of different UK accounts, including the VAM London account and his personal account. The harm that he directly caused, and intended, was the misuse of the UK banking system for the purpose of money laundering. The greater share of the harm caused by him was in the UK, not the US. 76. So far as count 2 is concerned, most of the transactions appear to have taken place in Hong Kong or China. The underlying facts set out in the extradition request suggest that at least some of the funds were routed through UK accounts, and there is no evidence that any greater harm was caused in the US compared to that caused in the UK. 77. It follows that most of the harm caused by the extradition offences took place in the UK. Even if that is not correct, insofar as harm was sustained in the US that was primarily the responsibility of Mr Armenta rather than the appellant or Mr MacDonald. Mr Armenta has already been prosecuted, convicted, and sentenced. It follows that the interests of justice (viewed through the prism of where most of the harm occurred) militates in favour of prosecution in the UK rather than the USA. 78. If the harm caused to those who lost money in the OneCoin fraud is taken into account, then, as the judge observed, it appears likely that most of the harm occurred in China, rather than the US. 79. It is clear from the authorities that the question of where most of the harm occurred is usually to be treated as a “very weighty factor” in the overall assessment of where the interests of justice lie: Love per Lord Burnett CJ at [28], Scott at [37].”[56]The Court then proceeded to consider the issued raised under section 83A(3)(b), namely the interests of any victims of the extradition offence. The courts conclusions in connection with that issue were set out in the judgment at paragraphs 82 to 85 as follows:
“81. Insofar as victims reside outside the USA and the UK, their interests would be served equally by a prosecution of the appellant in the USA or the UK. Insofar as those victims reside in the USA, their interests have been vindicated by the prosecutions that have already taken place in the USA, including of Mr Greenwood (so far as the underlying fraud is concerned) and of Mr Armenta (so far as the laundering of funds within the USA is concerned) and also by the outstanding proceedings against Ruja Ignatova. 82. So far as victims in the UK are concerned, everything else being equal, their interests may be best served by a prosecution in the UK – see Love per Lord Burnett CJ at [29]: “There may be an interest in those who are victims of crime having the case tried according to their own local laws and procedures and, if there is a conviction, punishment following according to the values of their own legal system.” 83. On the other hand, the interests of victims would be better served by a prosecution in the US rather than no prosecution in the UK. The evaluation of this factor therefore necessarily requires consideration of the practicality of criminal proceedings taking place in the UK. 84. It is common ground that the dual criminality criterion is satisfied. In other words, subject to making the evidence available, the appellant could be prosecuted in the UK. Much of the evidence already is available. Insofar as further evidence is required from the respondent, that can be provided in response to an international letter of request. No obstacle has been identified by the parties to evidence in the hands of the US authorities being made available to the police and CPS. The CPS has not made a decision that there should not be a prosecution in the UK, and it has not identified any obstacle to a prosecution in the UK … On the facts alleged against the appellant, his conduct (if proved) amounts to an offence within the UK. It follows that a prosecution could, in principle, take place in the UK. The CPS have not identified any reason why the application of the test in the Code for Crown Prosecutors would not result in a decision to prosecute. None of this involves any impermissible speculation; it is the natural consequence of the operation of the forum test on the facts of this case. Moreover, victims in the UK are well placed to influence the police to carry out an investigation with a view to a prosecution in the UK. 85. It follows that there is a choice between a very high likelihood of prosecution in the USA if extradition takes place as against a perhaps less high likelihood that a prosecution would take place in the UK (which might better advance the interests of victims in the UK). We consider that this factor does not weigh significantly in either direction.”
[57]The court further considered issues which arose in respect of section 83A(3)(d) in relation to whether evidence necessary to prove the offence is or could be available in the United Kingdom. In respect of that consideration, the court reached the following conclusions at paragraphs 92 and 93 of the judgment:
“92. It is common ground that the evidence that is necessary to prove the offence is or could be made available in the UK. The issue is how that conclusion should then be factored into the overall “interests of justice” test. If the evidence that was necessary to prove the offence was not, and could not be made, available in the UK then that would be a factor weighing in favour of a conclusion that the interests of justice require extradition. Otherwise, there could be no prosecution. Conversely, the fact that all the evidence is or can be made available in the UK is capable of being a factor that weighs against extradition: McDaid at [27] and [47]. Whether it does so or not depends on the particular circumstances. Where the evidence is not already in the possession of the UK authorities, and where it would involve a great deal of effort and expense to obtain the evidence, then factor (d) might not weigh against extradition (although in McDaid it did weigh against extradition even though expense and inconvenience would be involved in obtaining the evidence). In the present case, it seems likely that much (if not quite all) of the evidence is already in the possession of the UK authorities. The remainder of the evidence that is necessary to prove the offences is (according to Ms Graves) evidence as to the flow of funds. This is likely to be documentary evidence that could be provided without any significant inconvenience or cost. 93. When taken together with the facts that the alleged offences were committed in the UK and that they can be prosecuted in the UK and that the appellant is a UK national who resides in the UK, the fact that the evidence necessary to prove the offence can be made available to the UK authorities weighs in favour of a UK prosecution, and against extradition to the US.”
[58]The next issue which the court had to consider was the question arising under section 83A(3)(e), namely the issue of delay that might arise from proceeding in one jurisdiction rather than another. The conclusions which the court reached in respect of that consideration were set out by the court in paragraphs 96 to 98 of the judgment:
“96. The UK authorities would not be embarking on an investigation from a standing start. They will have the benefit of the work that has already been carried out by the City of London Police. They will also have the benefit of the material that has been gathered by the US authorities. What is left is likely to be largely a paper exercise of analysis, rather than a long drawn out police investigation. If a prosecution is then brought and the appellant pleads guilty then there is no reason why there should be a lengthy delay before sentencing. If the appellant contests the charge then the current backlog of cases in the crown court means that it is likely to be some time before a trial would take place. The judge suggested that might be 1-2 years. Neither party took issue with that forecast. 97. The US authorities have completed their investigation and a grand jury has returned an indictment. To that extent, the case in the US is ahead of any case in the UK. However, the evidence does not suggest that the time taken between arraignment and trial in the US is any shorter than would be the case in the UK. The judge accepted the evidence of Mr Dratel and considered that the 70-day Speedy Trial Act timeframe would not be effective. Mr Dratel’s evidence suggests that trials are taking place “years” after arrest. His current case had initially been listed for June 2020 but had been moved to March 2022. That suggests that the time between arraignment and trial in the appellant’s case might be at least as long, or even substantially longer, in the US than in the UK. 98. The dynamics and uncertainties are such that it is not possible to make any firm forecast as to when a trial would take place in either the UK or the US. It is likely that it would occur sooner in the US than the UK, if only because the investigative stage in the US has concluded. This factor therefore weighs in favour of extradition, but it does not carry great weight.”
[59]Next, the court considered section 83A(3)(f) in respect of the desirability and practicability of all prosecutions relating to the offences taking place in one jurisdiction. The court gave its view in respect of those considerations in paragraphs 100 and 101 as follows:
“100. The potential prosecution that most directly relates to the extradition offences is the prosecution of Mr MacDonald on joint charges for precisely the same offences. It is highly desirable that any prosecution of Mr MacDonald takes place in the same jurisdiction as a prosecution of the appellant. It cannot now take place in the US because Mr MacDonald has been discharged. No practical obstacle has been identified to Mr MacDonald and the appellant being jointly prosecuted in the UK. 101. A further prosecution that relates to the extradition offences is that of Mr Armenta. That has already taken place, and he has been sentenced. There is a public interest in co-conspirators being dealt with consistently even if they are not subject to a joint trial – and this can weigh in favour of extradition: Ejinyere v United States of America [2018] EWHC 2841 (Admin) per Lord Burnett CJ at [38]: “the advantage that flows from having all prosecutions in one jurisdiction is not limited to the possibility of trying all co-defendants at the same time. There are also benefits from trying all co-defendants under the same law, before the same courts and ensuring that all those convicted are sentenced under the same sentencing regime.””
The Court went on to observe that most of the evidence for any prosecution in the case of the appellant would be documentary evidence and that the witnesses were, in the main, likely to be professional or expert witnesses who could give evidence wherever a prosecution took place. Any direct witnesses in respect of the appellant’s conduct, and any witnesses from the HSBC Bank, were likely to be located in the UK. Ultimately, therefore, this was a factor the court considered weighted against extradition. “the advantage that flows from having all prosecutions in one jurisdiction is not limited to the possibility of trying all co-defendants at the same time. There are also benefits from trying all co-defendants under the same law, before the same courts and ensuring that all those convicted are sentenced under the same sentencing regime.””[60]Finally, the court considered the questions arising under section 83A(3)(g) in respect of the appellant’s connections with the UK. The conclusions in that respect were set out by the court at paragraphs 105 and 106 of the judgment as follows:
“105. This was a factor that the judge considered weighed heavily against extradition. We agree. The appellant has strong connections with the UK. He is a British national. He has lived in the UK his whole life. He currently lives with his wife and two of his daughters. He is of good character. There is no suggestion that he has any real connection with the US. 106. The fresh evidence adds significant additional weight to this factor. The appellant has health conditions that, untreated, are potentially life threatening. There is no doubt that those conditions could be treated effectively in the US, and the appellant does not now suggest that extradition would be incompatible with article 3 ECHR. However, he has a close and dependent relationship with his treating clinicians. With evident difficulty, they have alighted on a combination of medication that appears to be effective for the appellant. Three of the medicines that are currently being used are not readily and immediately available to those in custody in the US. Extradition would completely dislocate the appellant’s relationship with his current medical team, would likely result in a pause in some of the medication, and would likely result in a period of uncertainty whilst those responsible for his care in the US work out the best treatment plan for him. The appellant’s relationship with his treating doctors, taken together with his treatment plan, represents a significant additional connection with the UK.”
[61]The overall conclusion reached by the court was that the judge ought to have decided, having regard to the specific statutory factors set out in section 83A(3), that the interests of justice did not favour the appellant’s extradition, and therefore his appeal was allowed.[62]The case of El-Khouri was concerned with the correct approach to the identification of an “extradition offence” having regard to the requirements of section 137(3)(b) of the 2003 Act. Section 137 of the 2003 Act gives effect to the double criminality rule which requires that conduct which forms the basis of an extradition request should constitute a crime under the law of both the requesting and the requested state. The relevant provisions of section 137 in question in the case of El Khouri provide as follows:
“(1) This section sets out whether a person’s conduct constitutes an ‘extradition offence’ for the purposes of this Part in a case where the person- (a) is accused in a category 2 territory of an offence constituted by the conduct, or (b) has been convicted in that territory of an offence constituted by the conduct but not sentenced for it. (2) The conduct constitutes an extradition offence in relation to the category 2 territory if the conditions in subsection (3), (4) or (5) are satisfied. (3) The conditions in this subsection are that- (a) the conduct occurs in the category 2 territory; (b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that pert of the United Kingdom; (c) the conduct is so punishable under the law of the category 2 territory. (4) The conditions in this subsection are that- (a) the conduct occurs outside the category 2 territory; (b) in corresponding circumstances equivalent conduct would constitute an extra-territorial offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment; (c) the conduct is so punishable under the law of the category 2 territory.”
[63]One of the key issues in the case concerned the interpretation of these provisions and was set out and addressed in the following paragraphs of the judgment of Lord Lloyd-Jones and Lord Leggatt giving a judgment with which the other members of the court agreed. “49. As we have seen, even though almost all of the conduct specified in the extradition request occurred in the United Kingdom, counsel for Mr El-Khouri felt constrained to accept that that conduct occurred in the United States within the meaning of section 137(3)(a) of the 2003 Act, so that the test of double criminality applicable in this case is that set out in section 137(3)(b). Having boxed themselves into a corner by making this constraint, they then attempted to escape its consequences by arguing that subsection (3)(b) has the same meaning and effect as subsection (4)(b), even though the wording is materially different and clearly not intended to operate in the same way. A more logical response to the point that subsection (3)(b) is not designed to deal with a case such as this is to question the assumption that the conduct falls within subsection (3). That assumption was based on the view expressed by Lord Hope in Cando Armas that acts done outside the territory of the requesting state will be sufficient to constitute conduct in that territory so long as their intended effect was to bring about harm within that territory. The extradition request does not in fact, so far as we can see, make any allegation that the acts of Mr El-Khouri were intended to (or did) cause harm in the United States. But the more fundamental question is whether the interpretation of section 65(3)(a) - and by extension section 137(3)(a) - of the 2003 Act adopted by Lord Hope in Cando Armas is correct.50. We consider that interpretation to be mistaken for three reasons. First, it does not accord with the language used. Second, it renders the distinction drawn in sections 65 and 137 between conduct that occurs “in” and “outside” the territory of the requesting state unworkable. Third, the justification given for the interpretation in Cando Armas is flawed.51. Taking these points in turn, the word “conduct” would normally and naturally be understood as a synonym for acts done by the requested person in the specified location and not as including effects (whether intended or not) felt in that location of acts done somewhere else. A compelling reason is needed to interpret “conduct” as bearing such an abnormally wide meaning. Lord Hope implicitly acknowledged this when he said that “a purposive meaning must be given to the word ‘conduct’ in this context”: see Cando Armas, para 40 (quoted at para 30 above).”[64]As set out above, the second ground upon which the appeal is advanced is Article 8. The approach to be taken by a court when considering whether or not extradition of a person from the UK should be barred is now well settled and understood. The first question is whether or not the extradition would interfere with the exercise of an appellant’s right to respect for his private or family life; in short, is Article 8(1) engaged at all. Secondly, the court must consider whether the interference is sufficiently serious as to engage the operation of Article 8. Thirdly, the court should consider whether the interference caused by the extradition is in accordance with the law and, fourthly, whether it is necessary in the public interest. Finally, and this is the question most commonly at stake in an extradition case, the court must ask whether the interference with Article 8 rights which would arise as a consequence of extradition is proportionate to the legitimate aims which are being pursued. It is well established that, in undertaking that assessment, there will be a constant and weighty public interest in the pursuit of extradition, and the weight to be attached to the public interest will, for instance, be increased if the crime is a serious one. A key aspect of the public interest in extradition is the need to abide by treaty rights which the extradition request may be in pursuit of. Against the public interest will be the nature, extent and quality of the private and family life which the individual appellant, and those with whom he shares his private and family life, enjoy.[65]The correct approach to the assessment of Article 8 rights in an extradition context has been set by the leading cases of Norris v USA (No 2) [2010] 2 AC 487 and HH v Deputy Prosecutor of the Italian Republic Genoa [2013] 1 AC 338. In addition, further significant guidance was provided by the Divisional Court in the case of Polish Judicial Authorities v Celinski [2015] EWHC 1274 (Admin). This authority underlined the importance of the court setting out a careful balancing exercise identifying the factors weighing both in favour of and against the ordering of extradition.[66]A particular point was raised in the context of this appeal. A specific issue arose in relation to the question of whether or not the judge was entitled to take account, in the present case, of the factor that the “UK is not to be considered a “safe haven” for those sought by other Convention countries, either to stand trial or to serve a prison sentence”. It is observed on behalf of the appellant that, bearing in mind even if the appellant is not to stand trial in the US, he will be required to stand trial in the UK, and therefore the argument in relation to the UK becoming regarded as a “safe haven” was not a factor in play in the present case. The appellant’s submission is that this case is one about a potentially concurrent jurisdiction, and not one about impunity, and so reliance on the “safe haven” point is misplaced.[67]In response to this submission, attention was drawn by the respondent to the observations of Lord Phillips in respect of these issues at paragraphs 66 and 67 of his judgment in Norris. Lord Phillips observed as follows:
“66. At this point I will deal with the other subsidiary issue of principle that has been raised: is it of relevance when considering proportionality that a prosecution for the extradition offence might be brought in the requested jurisdiction? As I have pointed out, the Strasbourg court gave a positive answer to the question in Soering 11 EHRR 439. There has recently been a spate of cases in which the extradite has argued that he ought to be prosecuted in this jurisdiction, of which Bermingham [2007] QB 727 was but one. The most recent was R (Bary) v Secretary of State for the Home Department [2009] EWHC 2068 (Admin). References to the others can be found at para 72 of the judgment in the case. In each one the argument was rejected. 67. Extradition proceedings should not become the occasion for a debate about the most convenient forum for criminal proceedings. Rarely, if ever, on an issue of proportionality, could the possibility of bringing criminal proceedings in this jurisdiction be capable of tipping the scales against extradition in accordance with this country’s treaty obligations. Unless the judge reaches the conclusion that the scales are finely balanced he should not enter into an inquiry as to the possibility of prosecution in this country.”
[68]The decision in Norris did not include any consideration of the forum bar. However, the respondent also draws attention to cases subsequent to the introduction of the forum bar into the 2003 Act in support of Lord Phillips’ observations. In the case of Bagri & Ors v Public Prosecutor Bordeaux Court of First Instance [2014] EWHC 4066, in a Divisional Court of Aikens LJ and Mitting J, it was submitted that although the forum bar could not apply in that case, where there was an issue as to the most appropriate forum in which a requested person might stand trial, this was nevertheless an issue which could be raised as part of an argument that extradition would be disproportionate in respect of the requested person’s Article 8 rights. In the judgment of Aikens LJ, with which Mitting J agreed, the following was observed in relation to this submission:
“43. Mr Caldwell’s bold submission is that, in the case of a “conviction”
EAW where a person has a right of retrial if he were to be surrendered to the requesting state, then there remains an issue, which is part of the Article 8 “balancing exercise”, as to the most appropriate forum for the trial. That submission must plainly be confined to a case where the person is sought on a “conviction” EAW. In the case of an “accusation” EAW, my provisional view is that the “forum” cannot now normally be a relevant factor for Article 8 purposes, in the light of the statutory provisions in section 19B and following. However, even in the case of a “conviction” EAW, the scope for arguing about “forum” in the Article 8 context must be very limited indeed. In general, the fact that a competent court has already been seized of criminal proceedings and has conducted a trial and found the requested person guilty of an offence must be a factor in the balance in favour of surrender, not against it. In my view, the highest way that the issue can be put is as Lord Phillips expressed it in Norris: viz. the possibility of a prosecution for the extradition offence in the UK must only to be considered by the judge on an issue of proportionality under Article 8 if the judge reaches the conclusion that all the other Article 8 factors are finely balanced. In my judgment, arguments about the most convenient forum for the trial of the extradition offence should not otherwise be raised as an Article 8 factor in the case of “conviction” EAWs. 49. Can the argument that the extradition offence could have been prosecuted in England be raised in the Article 8 context? I will assume, in the appellant’s favour, that the English would have had jurisdiction to adjudicate on the extradition offence. But, in my judgment, this is clearly not a case where the proportionality argument is otherwise “finely balanced.” Therefore, following the guidance of the House of Lords in the Norris decision, this is not a case where this court should even contemplate consideration, as an Article 8 factor, the issue of whether there could have been a trial of the extradition offence in the UK.”[69]In the subsequent case of Diri v USA [2015] EWHC 2130 (Admin), a Divisional Court this time comprised of Aikens LJ and Cranston J also grappled with this issue, and at paragraph 46 of the judgment the question of whether the submission that the appellant could be tried in the UK could add further weight in the appellant’s favour when the Article 8 balance was considered. Aikens LJ, delivering the judgment of the court, made reference to the observations set out above of Lord Phillips in Norris. The judgment then went on, at paragraph 47, to address the introduction into the 2003 Act of the forum bar and concluded at paragraph 47 as follows:
“47. Since then, the EA has been amended by the Crime and Courts Act 2013 Schedule 20(1) paragraph 6 which added a section 83A to the EA with effect from 14 October 2013. This so-called “forum bar” to extradition to category 2 territories provides that the extradition of a person will be barred if it would not be “in the interests of justice”, as defined in that section. In Singh v France [2014] EWHC 4066 (Admin) this court expressed the provisional view, in relation to the equivalent provision in Part 1 of the EA, viz section 19B, that “forum” cannot now normally be a relevant factor for Article 8 purposes for the purposes of an “accusation”
European Arrest Warrant to which section 19B applies. This is because the statutory scheme now specifically provides for “forum” to be a separate bar, so that it is not logical to introduce it once again under Article 8. Even if, technically, it is possible to do so, then we would apply the same test as applied by Lord Phillips in Norris, viz. the possibility of a prosecution for the extradition offence in the UK should only be considered by the judge on an issue of proportionality under Article 8 if the judge reaches the conclusion that all the other Article 8 factors are finely balanced. That is not the position on the facts of this case.”[70]In the case of W v A Spanish Judicial Authority [2020] EWHC 2278, Popplewell LJ, giving the judgment of the Divisional Court in that case, took the conclusions of the cases of Bagri and Diri to be that “the availability of England as an alternative forum will not normally be of any significant weight, although its minimal weight might in rare cases be sufficient to make a difference if all the other factors result in the scales being finely balanced.”[71]Finally, in relation to the abandoned ground raised under Article 3 of the ECHR, the law in connection with the provision of adequate accommodation space to ensure that there is compliance with Article 3 ECHR is well settled in the leading case of Muršić v Croatia [2017] 65 EHRR 1. A minimum threshold of severity must be met before treatment can be regarded as inhuman or degrading which will “usually involve bodily injury or intense physical or mental suffering.” It will also include treatment regarded as degrading if it “humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance”. This is a high threshold and in the case of Muršić it was identified that is a strong, albeit rebuttable, presumption that there will be a violation of Article 3 if a detainee is held in accommodation which provides less than 3m2 of personal space unless such provision is short-term and occasional. It was these principles which were of application in the case of Weinzierl and which led to the court concluding that a further assurance was necessary.

Submissions and Conclusions

[72]The starting point in relation to the assessment of the arguments raised under the forum bar is that extradition of the appellant would barred by reason of forum if the extradition would not be “in the interests of justice”: see section 83A(1). As the authorities have observed, the question of the interests of justice is not one which is entirely open textured, but an issue which is circumscribed by the specific provisions of section 83A and the careful analysis of the matters raised within it in order to determine that question. In the present case, there is no dispute that, for the purposes of section 83A(2)(a), it is appropriate to conclude that a substantial measure of the appellant’s relevant activity was performed in the UK. The question which then arises, applying the statutory provisions, is whether or not, pursuant to section 83A(2)(b), having regard to the seven specified matters set out in section 83A(3), the extradition should not take place.[73]As set out above, the first of these specified matters is the question, pursuant to section 83A(3)(a), of “where most of the loss or harm resulting from the extradition offence occurred or was intended to occur”. On behalf of the appellant, it is submitted that the judge erred in his approach in paragraphs 228 and 229. The judge focused on what was said to be a “substantial portion” of the loss or damage and proceeded to undertake what was, in effect, a headcount of the number of those who were said to have been defrauded. The appellant draws attention to the material set out in the extradition request which notes that there were 104 investors identified on records and 74 of the investors were residents of the United States. Approximately 23 were located in the United Kingdom, with the remainder distributed amongst a number of other locations, including the Caribbean and the Far East, as well as European residents. The information also confirmed that the investor suffering the largest loss of $3 million is an American.[74]The appellant draws attention to further information that was provided by the respondent to assist the judge in the form of a table which was prepared to reflect the prosecutor’s understanding of where the investors were located and the extent of the loss which they incurred. The table was a refinement of the original estimate of loss based on the fact that since this was a Ponzi scheme, some investors received some money back during the course of the operation of the fraud. The appellant draws attention to the fact that the person who appears to have sustained the most significant net loss is a resident of the Bahamas, and that, in addition to the broad geographical spread of the people who sustained losses as a result of the Ponzi scheme, the aggregate losses in the US were less than 30 per cent of the total losses sustained.[75]Moreover, the appellant criticises the district judge for failing to make any inquiry into the money laundering charge, which forms the substance of count three, and which was an activity which occurred both in the UK and in Hong Kong. The appellant notes that around $59 million of the loss occurred outside of the US, as opposed to around $24 million which occurred inside the US. In addition, the appellant draws attention to the extent of the activities associated with the alleged fraud, which were centred in the UK, including the registration in London of fraudulent chattel mortgages; the abuse of bank accounts in London; and the misuse of UK-based companies for the storage of wine. Further, Bordeaux Cellars’ head office was based in Mayfair.[76]In addition to these submissions the appellant emphasised that the approach taken to the question of the definition of ‘extradition offence’ in El-Khouri should be adopted in relation to the assessment of the location of the conduct for the purposes of section 83A. The appellant draws attention in particular to paragraph 51 of the judgment in El-Khouri as supporting the focus upon what the appellant is said to have done and where it is alleged that he did it. In the present case the appellant’s office was in London, and the banks through which it is alleged the money passed were in the UK, as were the chattel mortgages and the wine.[77]In response to these submissions, the respondent contends that the key question which needs to be addressed pursuant to section 83A(3)(a) is the assessment of the extent of the loss or intended losses in the US as against the UK. This is the comparison which should be undertaken since, for instance, there is no suggestion that there would be any prospect of prosecution of the appellant in the Bahamas or the other countries within which the victims were dispersed. The respondent points out that the website for Bordeaux Cellars was based in the US, and the conferences at which the appellant was involved in marketing the fraudulent scheme also took place in the US. Both the initial analysis set out in the extradition request of 104 investors of whom 74 were in the US, as well as the subsequent analysis undertaken in the table provided by way of further information in which there were 141 investors of whom 71 were in the US and 21 in the UK, made the position clear so far as the location of the victims was concerned. Once the comparison was undertaken between the individual jurisdictions in which prosecution might occur, the answer in relation to this aspect of the forum bar was obvious. It did not diminish the validity of these conclusions to observe that the investigation was ongoing; that was a normal and understandable feature. Furthermore, the further information showed that, based upon the revised table of losses, victims resident in the US had suffered considerably more loss than victims in the UK. Approximately $24.3 million of loss had occurred in the US as against $14.3 million in the UK. Again, this clearly favoured the conclusion that the most losses had occurred or been contemplated in the US.[78]In relation to the specific charges, the respondent observes that count two is a free-standing charge, which is related directly to a US investor and the representations which were made to that person. Although the district judge did not directly mention the money laundering count, that is not a material imperfection in the judge’s decision. The money laundering charge bites on the money which was obtained by fraud and that money was obtained mostly in the US, albeit then moved through the banking system thereafter.[79]In response to the submissions made by the appellant in respect of the Supreme Court decision in El-Khouri the respondent contends that this authority is of no assistance since the court in that case was considering an entirely distinct section of the 2003 Act, namely section 137, and was not considering the application of the forum bar or the interpretation of the specified matters. The respondent points out that the definition of the specified matter in section 83A(3)(a) of the 2003 Act is “the place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur” (emphasis added). The use of the word “resulting” emphasises that the court must, in the context of this specified matter, consider the effect of the conduct which is a different question to deciding whether dual criminality has been established. The respondent also points out that under section 137 of the 2003 Act the definition of an extradition offence can include conduct that occurs either inside or outside the territory, or which is a combination of both, and thus this definition does not assist with determining the question of where most of the harm or loss from the extradition offence occurred or was intended to occur. In addition, the facts of the case in El-Khouri were very different from the present case in that the conduct in that it was agreed that the conduct was not intended to, and did not, cause harm in the US.[80]As set out in the authorities, the key question is whether the judge was wrong to conclude as he did. For the following reasons, I am unwilling to conclude that the judge’s conclusions that most of the loss or harm resulting from the fraud occurred or was intended to occur in the US was wrong. In my view, a number of factors were relevant to this consideration, albeit some more important than others. It is clear, in my view, that the relevant comparison, as the respondent submits, is between the potential jurisdictions in which a prosecution might occur. In this case, it means that the comparison is properly between the US and the UK. The assessment in respect of where most of the loss or harm arose or might have arisen can be gauged by the number of people affected in the various jurisdictions, as well as by an assessment of the amount of money dishonestly acquired in the alternative jurisdictions. In my view, the evidence on both of those questions points decisively in favour of the US.[81]There are other matters which are of relevance to the evaluation of this issue. Firstly, as the respondent points out, it is undeniable that in respect of count two it is a count directly related to a resident of the US in respect of a fraud against that person. Whilst the judge did not refer to the money laundering charges, and no doubt the money concerned would have circulated through the international banking system, it cannot be overlooked that the source of that money was the fraud, and that a significant amount of the money acquired by the fraud was acquired in the US; certainly a greater quantity of the proceeds of the fraud which were then laundered arose in the US. Whilst the appellant placed reliance on the observations in relation to money laundering contained in the case of Hamilton, the facts of that case are clearly distinguishable from the present case. Thus, even taking account of the money laundering offence, and reflecting that the harm to the banking system may be more widespread than simply affecting the UK and US, does not in my judgment affect the integrity of the judge’s overall conclusion.[82]It is also pertinent for the appellant to observe that there were aspects of the orchestration of the fraud, for instance in terms of the location of the registration of the chattel mortgages and the storage of the wine, which occurred in the UK. However, there were other aspects of the activities related to the fraud which were based in the US, such as the location of the website and the venues of the conferences at which investors were drawn into the scheme. These factors do not, in my judgment detract from the principal ingredients leading to the conclusion that most loss or harm occurred or was intended to occur in the US. I am not therefore satisfied that the judge was wrong to reach the conclusion which he did in respect of this specified matter, and, as the authorities note, this is a specified matter to which considerable weight will attach in reaching the overall conclusion.[83]I am unconvinced that the case of El-Khouri is of any assistance to the appellant. I agree with the respondent that the Supreme Court was addressing an entirely distinct statutory provision in that case which raised a different question in respect of dual-criminality which does not assist to determine the questions raised in the specified matters within section 83A. The specified matters are differently expressed to the requirements of section 137, and as the respondent observes the language of section 83A(3)(a) when using the word “resulting from” requires a consideration of the effect of the conduct which differs from the tests for dual criminality in section 137. The appellant’s emphasis on paragraph 51 of El-Khouri takes that paragraph out of context. The paragraph is directly related to section 137(3)(a) and (b) and therefore not with section 137(4) which is the provision in relation to conduct outside the territory but which can amount to an extradition offence. What is said in paragraph 51 of El-Khouri cannot therefore be used to limit the scope of relevant conduct for the purposes of the forum bar. For these reasons, and the reasons given by the respondent I do not consider that the conclusions of the Supreme Court in El Khouri are of assistance to the appellant in this case.[84]In respect of the considerations under section 83A(3)(b), the appellant contends that the judge was wrong in his assessment that this was a factor weighing heavily in favour of extradition and against the forum bar. The judge relied upon evidence that “a large number (approximately one half)” of the total number of victims resided within the US. It was said that their interests would prefer trial in the US. The appellant criticises this assessment on the basis that it leaves out of account the large losses which were incurred by those affected by the investment scheme who were based in the UK. Moreover, when the judge concluded that it was a “reasonable inference” that it would be preferable for such victims to attend a local court to observe the proceedings, this was not redolent of an objective analysis of the evidence being undertaken. In particular, the judge left out of account the fact that Mr Hickman, a US complainant, had started civil proceedings in the UK in order to vindicate his rights, which was a factor running contra to the judge’s conclusions and apparently not engaged in his reasons. Once more, the appellant criticises the judge for leaving out of account the money laundering charge for which he is wanted. The appellant also notes that the judge did not factor in the risk of the appellant’s suicide, which was a matter which should have been taken into account since were the appellant to take his own life, that would obviously preclude any trial of him taking place at all.[85]In response to these submissions, it is submitted on behalf of the respondent that, in accordance with the extradition request at paragraph 14, the judge correctly recorded that a majority of the victims of the fraud resided in the US. Moreover, the judge was entitled to rely upon the case of Wyatt, from which he quoted, noting that a victim has an interest extending beyond the narrow compass of being a witness or giving evidence. They should also be able, if they wish, to attend a trial and have continuing contact with the prosecuting authorities conducting the case. All of these factors, therefore, were rightly taken into account. The respondent observes, again, that the proper comparison in this connection in relation to the interests of victims is the comparison between the US and other locations or jurisdictions in which a prosecution for the fraud might be undertaken. It is submitted that, on that basis, the situation both in relation to count one, and also in relation to count two which, as has already been noted, pertains to a specific individual, is clear. Overall, therefore, it is submitted by the respondent that the judge was not wrong to reach the conclusion which he did.[86]In my judgment, the respondent is correct that, when addressing count one, the judge accurately reflected the available evidence in respect of the fraud and properly compared the extent of the complainants in the requesting state and other locations where a prosecution might occur. Given the location of the preponderance of the victims in the US, the judge’s conclusion had a sound evidential basis. In my view, the judge was entitled to take account of the victims’ interests, as understood in the case of Wyatt, which identifies the many potentially relevant ways in which it will be in the interests of a victim to have a prosecution brought in the jurisdiction within which he or she resides. In other words, the “reasonable inference” that the judge drew was one which was based on the foundation of the established authority as to how the interests of victims should be considered and approached. Whilst the money laundering offences were not referred to by the judge in this connection, their impact, and the victims to which those offences relate, are more diffuse in their geographical location and thus, in making the overall evaluation in respect of this issue, would be of less weight than the factors pertaining to counts one and two.[87]Finally, whilst the appellant correctly observes that Mr Hickman chose to seek to vindicate his rights in a civil claim brought in the UK, in my view that was not and should not be viewed as some kind of proxy for the interests represented by the bringing of a criminal prosecution in the wider public interest. It is with specific reference to the criminal prosecution that the forum bar is concerned and having considered the submissions raised in respect of this aspect of the case, I am satisfied that the overall conclusion which the judge reached was correct and that, as he concluded, this was a factor which weighed heavily in favour of extradition in the present case.[88]The next issue which falls for consideration is the question which arises under section 83A(3)(d), namely whether, if the appellant were to be prosecuted in the UK, the evidence necessary to prove the offence “is or could be made available in the United Kingdom.” The central criticism advanced by the appellant of the approach taken by the judge was that, for instance in paragraph 243 of his judgment, he was concerned with what was practicable and effective, rather than being concerned with whether or not it would be impossible for the prosecution to be brought in the UK. The appellant submits that paragraph 27 of the case of Patmanand Safi is wrong when Swift J observed that applying criteria (d) and (e), it was important “to keep a grip on what is practical and what is effective”. The purpose of these sections, the appellant submits, was not related to exorbitant or excessive jurisdiction as it seems Swift J thought. The central question was whether or not the offences in question could be fairly and effectively tried in the UK and does not involve the court determining which forum (the UK or the requesting state) is the more suitable or preferable for the trial of the offences for which extradition is sought.[89]In support of the appellant’s submission that this was not a factor which weighs in favour of extradition, the appellant submits that the case does not turn on the victims giving oral evidence because the evidence of the fraud is heavily based upon the available documentation. The documentary material supports the creation of the loan agreements and the chattel mortgages of the wine. The transferring of the money is evident through banking records and no doubt other materials stored on the laptops which were seized. Powers exist to enable the UK courts to seek production orders in relation to electronic documentation which may be held in the US and means exist by way of giving evidence over video links which would enable the US victims to give evidence as part of a UK prosecution. There was, therefore, no proper basis for the judge to conclude at paragraph 249 that the giving of evidence via video link, referring to US documentation which could find its way to the UK, might be “impractical and ineffective”.[90]In response to these submissions, the respondent submits that the judge was entitled to conclude that the critical witnesses were in the US in relation to those aspects of count one and count two which pertained to US-based complainants. Various financial records had been obtained by the US government which related to the fraud, and whilst some evidence, including the documentary evidence, could potentially be made available in the UK, there will be delays and issues in relation to admissibility requiring witnesses to authenticate documents which would cause potential problems. In particular, a number of the witnesses who resided in the US could not be compelled to testify in the UK.[91]The respondent contends that evidence via a video link was not a good substitute for live testimony as the judge could not easily determine a victim’s demeanour and technical failures were not uncommon. The respondent draws attention to the paragraphs from the judgment in Ejinyere which have been quoted above as supporting this submission. The respondent submits that the judge was entitled to recognise that adducing live evidence via a video link from the US would not be straightforward, and the process of obtaining documentary evidence less certain in the UK than it would be in the US. Thus, the respondent submits that the judge was entitled to give consideration to the question of the practicability of the production of the evidence. Indeed, such a consideration can be deduced from the language of the statute, which speaks of material that “could be made available”. The respondent submits, therefore, that the judge was not wrong to conclude that this factor weighed against the forum bar, albeit that it would not carry great weight.[92]At the outset, I should note that reliance was placed by the appellant on the observation in paragraph 61 of Lane J’s judgment in USA v Osborne [2022] EWHC 35 that “factor (d), unlike factor (f), involves no consideration of practicability, being solely concerned with whether the evidence necessary to prove the offences is or could be made available in the United Kingdom”. The appellant relies upon that as part of Lane J’s decision. In my view, that reliance is misplaced. Paragraph 61 forms part of his rehearsal of the argument presented by the appellant in that case, rather than any conclusion which he reached as to the correct approach to those factors. Reading on into the discussion section of Lane J’s judgment, no such conclusions are reached.[93]In my view, it is clear from the statutory language of section 83A(3)(d) that questions of practicability are pertinent to the evaluation of this factor. This is supported by the observations of the Divisional Court in Ejinyere in the paragraphs quoted above and also in the decision of Patman and Safi. However, that question of practicability has to reflect the context that this aspect of the forum bar does not involve asking the question as to which of the competing jurisdictions is more suitable or preferable as the forum for deciding the case. This factor may weigh against extradition even if a successful prosecution could be brought, but it would involve expense and inconvenience. I do not consider that the approach adopted by Swift J in Patman and Safi undermines that approach to this aspect of the forum bar.[94]The judge was entitled when approaching the evidence in respect of this criterion to note the difficulties which would be engaged in the transmission of documentary evidence satisfactorily from the US to the UK, and also the practical issues arising in respect of the receipt of evidence via video link. It is clear that the evidence before the judge entitled him to conclude that whilst it may be theoretically possible for the documentary evidence to be transferred to the UK, this would be a task which it would be not at all easy to satisfactorily accomplish, and which would be complicated by the very large number of complainants in the US. The availability of evidence, either as a result of the process needed to transfer documentary evidence, or as a consequence of the inability to compel US-based complainants to give evidence, was all relevant to the evaluation of this factor. Ultimately, I am unable to conclude that the district judge was wrong to conclude that these practical constraints clearly favoured the trial of the appellant in the US and were a factor against the forum bar albeit, as the judge concluded, it is not a factor which is very weighty by contrast with the earlier contentious factors about which I have had to already reach conclusions.[95]The next contentious criterion is section 83A(3)(e), namely the question of delay. The appellant submits that the judge’s conclusions in relation to the question of delay were misconceived and wrong. It was incorrect of the judge to observe at paragraph 250 that speedy trial could be an option in this case, bearing in mind the nature and complexity of the matter. Furthermore, it was incorrect for the judge to suggest in paragraph 256 of the decision that all of the victims of the fraud would need to be interviewed in all of their countries of residence in order for the CPS to be ready to prosecute the defendant. The appellant points out that any UK prosecution would not start from scratch and that there had already been a UK investigation of the fraud which had led to Mr Burton being prosecuted successfully for money laundering offences in 2019.[96]In addition to failing to have regard to Mr Burton’s prosecution, the judge also failed to reflect that the evidence in the extradition request demonstrated that the investigation of the fraud was still ongoing and that further inquiries of a significant nature were required in the US in order to prepare a case for trial. This would involve the need to contact individual investors who were the subject of the fraud, and further inquiries such as the interrogation of the appellant’s laptop would be required after he had been extradited. For all of these reasons, the judge’s conclusions in respect of delay were wrong.[97]In response to these submissions, the respondent observes that the US proceedings are evidenced to be well-advanced, which obviously favours extradition in this case. Fraud investigations are always ongoing, but a substantial amount of evidence has already been assembled, sufficient to enable the appellant to be required for trial. The respondent submits that the appellant has overstated the relevance of the prosecution of Mr Burton. It is clear that the UK police knew of the fraud and that is what led to him being prosecuted for money laundering, but that does not gauge the extent of the knowledge in the US of the depth and character of the fraud concerned. As the skeleton for the freezing injunction notes, there had been no investigation or engagement with the CPS at that time. In the light of backlogs and the advanced state of the investigation in the US, the judge was entitled to conclude that delay was a factor weighing against the forum bar.[98]Having reflected on these submissions, I have no doubt that the respondent is correct and that the judge’s assessment was not wrong. The judge was entitled to conclude that it was clear from the evidence that the investigation by the US authorities was “at an advanced stage”, which led to it being likely that the trial process would be brought to a conclusion more rapidly in the US than in the UK. In addition to the backlogs in the Crown Court, it is clear that the UK police and the CPS would have a substantial amount of investigation and procedure to take in hand in order to assemble the evidence and inquiries necessary to bring about the prosecution of the appellant, and that the US authorities are far further advanced in relation to bringing this matter to court. The reliance upon Mr Burton’s prosecution is, in my view, misplaced. As the evidence demonstrates, the UK police investigated to a successful conclusion the money laundering which they detected was part of the fraud, but it is clear that they did not undertake the detailed investigation of how the fraud was accomplished, which has been achieved by the US authorities by undertaking the investigations in which they have been engaged. This is, again, a factor which in my judgment weighs against the operation of the forum bar and is therefore in support of extradition.[99]The appellant also contends that the conclusions of the district judge in relation to section 83A(3)(f) were in error, and that the analysis which the judge undertook in paragraph 259 of his judgment does not reflect the full analysis of all the matters that are properly to be assessed in connection with this criterion. The judge failed to consider the availability of witnesses and the practicality of undertaking a trial of the appellant in the UK. The complexity of having dual trials in different jurisdiction have been overstated by the judge, and there are modern methods of receiving and deploying evidence which could be used in order to ensure that the interests of justice are addressed by prosecuting the appellant in the UK.[100]In response to these submissions, the respondent points out that there has been a material change of circumstances since the district judge heard the matter in that, before the district judge, the respondent was seeking the extradition of Mr Burton from Morocco, but since the hearing in December 2023, Mr Burton has been successfully extradited and he is now in the US awaiting trial. The respondent points out that this is now a strong factor in favour of extradition, since it is obviously desirable for the appellant to be tried with his co-defendant, who is going to be tried in the US as a consequence of the extradition from Morocco. The respondent points out that this is particularly the case where, as appears to be the position in the present case, the respondent is suggesting that the fraud was all Mr Burton’s fault.[101]The respondent draws attention to the observations of Lord Burnett, the Lord Chief Justice, in Ejinyere at paragraph 38, where a number of advantages were identified from having all prosecutions in one jurisdiction. These advantages are not limited to the possibility of trying all co-defendants at the same time, but also from trying all co-defendants under the same law, before the same courts and ensuring all those convicted are sentenced under the same sentencing regimes. In all the circumstances, the respondent submits the district judge was not wrong and was, in particular, not wrong on the facts as currently understood.[102]It was not suggested by the appellant that the extradition of Mr Burton from Morocco to the US should be overlooked by this court in considering this criterion. In my view, that evidence is clear and decisive in relation to this criterion. Now that Mr Burton is in the US awaiting his trial, it is obviously highly desirable that all prosecutions in relation to these matters occur in one jurisdiction, namely the US. There are no identified practical show-stoppers or overriding constraints preventing this happening. For all of the reasons spelt out in the case of Ejinyere at paragraph 38, it makes very good sense for the cases to be tried together.[103]A further consideration in circumstances where co-defendants may be blaming each other for the acts comprised in the offence, is that having them tried by the same court at the same time enables those issues to be properly and comparatively explored. It is clear, given the nature and extent of the investigation of the matters which has been undertaken in the US, that witnesses and documentation are available so as to enable a prosecution in the US to be entirely practicable. This is a factor which, in my judgment, clearly is of significant weight in support of extradition and against the operation of the forum bar.[104]The final factor about which contention is raised is that arising under section 83A(3)(g) in respect of the connections of the appellant to the UK. In this respect, it is submitted by the appellant that the judge failed to make any reference at all to the appellant’s risk of suicide, identified in the medical evidence which was before the judge or, perhaps still more importantly, his wife’s medical conditions and the support and care that she required alongside the high risk of suicide described in the medical evidence arising were the appellant to be extradited. The appellant submits that the judge failed to properly address the question posed by paragraph 40 of the judgment in Love, namely what is the significance of the breaking of the connection with the UK in this context. The judge ought to have considered the impact upon the appellant’s wife and family of any decision to require him to leave the UK in order to be tried in the US.[105]In response to these submissions, the respondent submits that the judge had adequate regard to the appellant’s connections to the UK and had earlier noted that any suicide risk pertaining to the appellant could be contained and safeguarded by the prison authorities. The question of connections insofar as the appellant’s relationship with his wife was concerned had to be tempered by the fact that he had continued to commit offences of dishonesty whilst his wife was pregnant in earlier years, and was also living separately from his wife whilst working in Preston in 2020 and thereafter, and was traveling to and from Preston for a protracted period. It was also notable that he had been separated from his wife since 2022 when he had been remanded in custody. All of these matters necessarily informed the conclusion of the district judge.[106]In my view, it is notable that the judge did not go beyond the observation that the appellant had substantial ties to the UK and that his wife and children were UK nationals regarding England as their home when assessing the question of connections to the UK and addressing this criterion. I consider that there is considerable force in the submission made by the appellant that the medical evidence bearing upon the appellant’s wife’s medical conditions, and the potential consequences were her connection to the appellant to be severed by his extradition, is a significant feature of this case when dealing with this criterion. It is a matter which is relevant and of significant weight in this case when considering the question of connections to the UK. It is notable that whilst in paragraph 264 of the judge’s decision, he found that this was a factor which was in favour of the operation of the forum bar, he did not articulate the extent or quality of the weight to be attached to this criterion.[107]Bearing in mind the nature and extent of the evidence in respect of the impact upon the appellant and in particular his family were he to be extradited, in my judgment this criterion is a factor which weighs in favour of the forum bar and is a matter to which, in my view, significant weight should attach in the overall assessment of the interests of justice taking account of the specified matters which need to found the assessment.[108]Turning to the overall conclusions which were reached by the judge in relation to the forum bar, in my view he was, for the reasons which I have set out above, correct to conclude that there were a number of factors or criterion in which the conclusion weighed against the operation of the forum bar, but one, namely the appellant’s connections to the UK, specifically in favour of the forum bar. There is no dispute that the lack of a UK prosecutor’s decision to prosecute was a neutral factor in this case. The overall conclusion which I have reached is not, therefore, different from that which the district judge arrived at. Bearing in mind the weight to be attached to those factors which weigh against the operation of the forum bar, it is impossible to conclude that the criterion pertaining to connections could be dispositive or outweigh those other weighty considerations. In the final analysis I am therefore not satisfied that the district judge’s decision in this case was wrong and the ground of appeal based on section 83A must be dismissed.[109]I turn to the submissions made in relation to Article 8. The appellant commences these submissions by noting that the case is not one in which it is appropriate for the decision-maker to have regard to the question of whether or not the UK will be considered to be a “safe haven” on the basis that the question is where the appellant is going to be tried, rather than whether he is going to be tried at all. Whilst noting the authorities to which the respondent makes reference as set out above, the appellant submits that the ingredients of the Article 8 analysis have to be altered to reflect the introduction of the forum bar to the legislative framework and the necessary adjustments to the weight attached to treaty obligations as a consequence. Since the criterion of “connections” is unable to capture all of the Article 8 considerations, this needs to be reflected in undertaking the Article 8 balance accordingly. Thus, the judge was wrong not to include within his assessment the fact that were the appellant not to be extradited, he would be available to be tried in the UK for the offences for which he is wanted.[110]Moreover, the district judge significantly underplayed the consequences which would arise for the appellant’s family and, in particular, his wife were he to be extradited, bearing in mind the medical evidence which was before him. The consequences for the appellant’s wife were clear and were expressed in the medical evidence as giving rise to a significant risk of her taking her own life, bearing in mind in particular that she had the means to do so. Simply observing that this would cause “hardship” failed to properly incorporate the weight to be attached to this factor in the overall Article 8 balance. In addition to these matters, the appellant relies upon the seriously harmful conditions in which it is said he would be held in a US prison on remand and in particular at the MDC Brooklyn facility. The evidence in relation to that facility demonstrated that there were significant reasons to question whether or not he would be adequately cared for and concerns that he would come to harm as a consequence of his detention.[111]In response to these submissions, the respondent draws attention to the serious allegations which the appellant faces and the fact that the judge undertook the balancing exercise required within an appropriate framework and taking account of all of the matters which were relevant to the assessment. So far as the question of taking account of the possibility of trying the appellant in the UK is concerned, the respondent points out that the authorities from HH onwards make clear that it was only if the factors for and against extradition were finely balanced that it would be appropriate for the question of forum to play any significant part in determining the Article 8 proportionality exercise. So far as the appellant’s wife and family were concerned, in addition to the observation in paragraph 356(iii), at paragraph 356(vii) specific findings were made and taken into account in relation to the opportunities for intervention in the care to be provided to the appellant’s wife along with suggestions from Dr Furtado as to alleviate her ongoing health issues, including if they were to worsen as a consequence of extradition.[112]My conclusions in relation to the judge’s overall approach starts from my assessment that it is now essentially settled in the authorities that the possibility of a person being tried in the UK for the offence or offences for which they are wanted will only be relevant if the factors in relation to the proportionality assessment under Article 8 are finely balanced. That appears to have been the conclusions of the relevant authorities which have considered this proposition since the decision in HH. I do not consider that this is a case in which the proportionality argument is finely balanced for the reasons which were identified by the judge in forging his Article 8 conclusions.[113]The judge was correct in my view to identify that the conduct set out in the extradition request is extremely serious, involving a very high value of loss to a very large number of individuals as a result of a fraud operating on an international scale. As the judge noted, in addition to the seriousness of the conduct alleged, the appellant was likely to face a significant prison sentence bearing in mind his previous convictions for offences of dishonesty.[114]The judge correctly identified and took account of the separation between the appellant and his wife and children which will be caused by the extradition. He was entitled to take account of the fact that the appellant had been living for a number of months prior to his arrest in a property in Preston where, notwithstanding his wife’s persistent health problems, he lived during the week several hundred miles away from the rest of his family. Again, the judge was entitled to note that whist he was living in Preston, and indeed whilst he had previously served terms of imprisonment and also when he had been on remand in relation to the current matters, the day-to-day care of his wife had been carried out by his adult children. It is to be noted that that situation has changed as a result of circumstances since the judge reached his decision and that, in particular, the care of the appellant’s wife now falls solely to their son in the light of the deterioration in their daughter’s health in recent times. Nevertheless, whilst this is a change it is not in my judgment decisive, in the sense that the judge identified that care and support from the children of the family was available in the appellant’s absence, albeit that is now solely being provided by the appellant’s son. In my view it is clear that the judge was alive to both the vulnerability of the appellant’s wife’s care and also the potential of deteriorations which might arise if the appellant’s extradition was ordered.[115]The judge set out and then took account of the proposals from the expert in occupational therapy, Ms Goddard, and the potential interventions by social services to provide the appellant’s wife with care and support with her day-to-day living. It was also open to the judge to have regard to the treatments suggested in the report of Dr Furtado to address the mental health issues which are faced by the appellant’s wife, including were the situation to be worsened by the ordering of extradition. In short, I am unable to identify that the district judge’s assessment of the Article 8 considerations in this case was incomplete or that the judgments which he reached on the evidence before him was one which was wrong. He accurately ascribed the correct weight to the factors for and against extradition and reached a conclusion which was appropriate in the circumstances. The ground of appeal based on Article 8 must therefore be dismissed.[116]I turn, finally, to the considerations which arise in respect of the amended ground three to determine permission to appeal, albeit, as noted above, it was brought to my attention when this draft judgment was circulated to the parties that this ground had been abandoned. As set out above, the judge rejected the appellant’s Article 3 case as advanced in the context of the hearing before him, but the amendment to include a ground of appeal based on Article 3 has arisen solely as a consequence of the decision of the Divisional Court in Weinzierl. As also set out above, the principles in relation to assessing whether or not there is a real risk of a breach of Article 3 of the ECHR in circumstances of this kind is well established and, as identified in the case of Weinzierl, is closely related to the need for at least 3m2 of personal space to be provided in the accommodation within which a detainee will be persistently held. In my view it is important to note that the concerns which were articulated by the Divisional Court in Weinzierl at paragraph 150 of the judgment have in effect been completely resolved by the provision of an assurance from the respondent authorities that the appellant in that case would be provided with at least 3m2 of personal space in the MDC Brooklyn. A similar assurance has been provided in this case and it is clear from both of the letters from the US authorities dated 14 April 2025 that there is an assurance that the appellant will be provided with at least 3m2 of personal space whilst being housed at the MDC Brooklyn. In those circumstances, I am entirely satisfied that there is in this case no real risk of any breach of Article 3 or the requirements identified in the case of Muršić and that on the basis of the material which is presently before me any such ground is not arguable. In the circumstances therefore, permission to appeal on Article 3 grounds must be refused.[117]For all of the reasons which have been set out above, I am satisfied that this appeal must be dismissed.