Love v The Government of the United States of America & Anor, Court of Appeal - Administrative Court, February 05, 2018, [2018] EWHC 172 (Admin)

Resolution Date:February 05, 2018
Issuing Organization:Administrative Court
Actores:Love v The Government of the United States of America & Anor
 
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Case No: CO/5994/2016

Neutral Citation Number: [2018] EWHC 172 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 05/02/2018

Before:

THE RIGHT HONOURABLE THE LORD BURNETT OF MALDON

THE LORD CHIEF JUSTICE

and

THE HONOURABLE MR JUSTICE OUSELEY

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Between:

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MR EDWARD FITZGERALD QC AND MR BEN COOPER

(instructed by KAIM TODNER SOLICITORS LTD) for the Appellant

MR PETER CALDWELL (instructed by CPS EXTRADITION UNIT) for the Respondent

MR ALEX BAILIN QC AND MR AARON WATKINS

(instructed by LIBERTY) for the Interested Party

Hearing dates: 29 and 30 November 2017

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JudgmentTHE LORD CHIEF JUSTICE AND MR JUSTICE OUSELEY :

  1. This is the judgment of the Court.

  2. Lauri Love appeals against the decision of District Judge Tempia, sitting at Westminster Magistrates' Court on 16 September 2016, to send his case to the Secretary of State for the Home Department for her decision whether to order his extradition to the United States of America, under Part 2 of the Extradition Act 2003 [``the 2003 Act'']. The USA is a category 2 territory under that Act. On 14 November 2016, the Home Secretary ordered his extradition.

  3. The principal issues before this court are:

    i) whether the judge was wrong to hold that the forum bar in section 83A of the 2003 Act, introduced by the Crime and Courts Act 2013, did not prevent Mr Love's extradition;

    ii) whether his extradition would be unjust or oppressive by reason of his physical or mental condition, and so required his discharge under section 91 of the 2003 Act; and

    iii) whether various rights guaranteed by the European Convention of Human Rights [``ECHR''] would be breached, notably article 3, in the light of his health and the conditions he would face in the United States, and article 8 in the light of those factors, his home support and treatment, and the possibility of criminal proceedings being taken against him in the UK for the offences for which his extradition is sought. These are all issues for this Court and not for the Home Secretary. Her decision on the specific issues she had to consider is not challenged.

  4. Mr Fitzgerald QC for Mr Love was at pains to emphasise that Mr Love did not seek impunity for the acts alleged against him, but contended that he should be tried and, if convicted, sentenced in the United Kingdom.

    The Facts

  5. We take the background from the judgment of the judge:

    ``8. Mr Love is accused in three indictments that between the period October 2012 to October 2013, he, working with others, made a series of cyber-attacks on the computer networks of private companies and United States Government agencies (including the US Federal Reserve, US Army, US Department of Defence, Missile Defence Agency, NASA, Army Corps of Engineers, Department of Health and Human Services, US Sentencing Commission, FBI Regional Computer Forensics Laboratory, Deltek Inc, Department of Energy, Forte Interactive, Inc) in order to steal and then publicly disseminate confidential information found on the networks, including what is referred to as personally identifiable information ....

  6. In most of the attacks it is alleged Mr Love gained unauthorised access by exploiting vulnerabilities in a programme the computers ran known as Adobe ColdFusion; software designed to build and administer websites and databases (the ``ColdFusion Attacks''). It is further alleged Mr Love also carried out ``SQL Injection Attacks'' in which unauthorised access was gained to computer databases by manipulating ``structured query language'', computer programming language designed to retrieve and manage data on computer databases (the ``SQL Injection Attacks'').

  7. Once inside the compromised computer systems, Mr Love and others placed hidden ``shells'' or ``backdoors'' within the networks. This allowed them to return and steal the confidential data which included telephone numbers, social security numbers, credit card details and salary information of employees, health care professionals, and service personnel.

  8. A confidential source working for the United States Federal Bureau of Investigation (FBI) had access to a restricted online ``chat room'' used by Mr Love and others from about 2012 to 2013. They had discussions about their hacking activity in the chat room using Internet Relay Chat (``IRC''). This allows multiple users to talk about their activities using typed messages to each other. Various online names were used to disguise their true identities. From this the FBI has identified Mr Love's nickname as ``nsh'', ``peace'', shift'' and ``route''.

  9. Mr Love used IRC to discuss how to ``exfiltrate'' the stolen data and what could be done with it.''

  10. This led to three federal indictments being returned by Grand Juries in the three different Federal Districts, where the agencies and companies affected were located:

    i) New Jersey on 23 October 2013 as superseded in March 2015: one count of conspiracy to access a computer without authority and to obtain information from a US department or agency (5 years maximum), and one count of accessing a computer without authorisation and obtaining information from a US department or agency (5 years maximum);

    ii) Southern District of New York on 21 February 2014: one count of computer hacking (10 years maximum) and one count of aggravated identity theft (2 years maximum but could be consecutive);

    iii) Eastern District of Virginia on 24 July 2014 as superseded in May 2015: one count of conspiracy to damage a protected computer and to commit access device fraud (5 years maximum), six counts of damaging a protected computer (5 years maximum), one count of access device fraud (10 years maximum), and one count of aggravated identity theft (2 years maximum).

  11. These offences are equivalent to offences under the Computer Misuse Act 1990 with maximum sentences of 2 and 5 years, under the Proceeds of Crime Act 2002 with maximum sentences of 14 years, and the common law offence of conspiracy to defraud. The judge concluded that these were serious alleged offences, committed in three Districts over a period of a year, targeting computers in the United States, causing millions of dollars' worth of damage and stealing employees' personal details. We reject entirely the suggestion by the Interested Party that the United States was seeking to exercise some ``exorbitant'' jurisdiction. United States Government agencies, corporations and individuals were said to be the victims of deliberate, sustained hacking attacks.

  12. On 15 July 2015, Mr Love was arrested pursuant to a warrant, issued following certification of the three extradition requests, but has been on bail since then. The subsequent proceedings have been treated as if there were a single extradition request.

  13. In October 2013, the Federal Bureau of Investigation asked the National Crime Agency [``NCA''] for assistance in its investigation, which led the NCA to begin its own investigation. Its purpose was to ``gather evidence with a view to mounting a potential prosecution in the UK, whilst being equally aware of the US investigation, should material relevant to their investigation become apparent....'' The investigation obtained evidence linking Mr Love to the hacking offences. On 25 October 2013, the NCA executed a search warrant at Mr Love's parents' house. He lived there with them. This is explained in the witness statement of Mr Brown of the NCA dated 29 March 2016, made in connection with proceedings which related to the return of property taken during the search. One of Mr Love's computers was logged on to an online chat room using the nickname ``nsh''. A preliminary review of some of his computers revealed that some of the data stolen during unauthorised access was on his computers, and these intrusions had been discussed in online chats. Mr Love was arrested on suspicion for offences under the Computer Misuse Act 1990, made no comment in interview and was released on bail.

  14. In July 2014, he was released from bail but was told by the CPS that the ``investigation remained very much alive.'' It was in June 2014, though this was not before the judge, that the CPS decided that it would allow the United States indictment to take priority over a UK prosecution.

    Mr Love's circumstances in outline

  15. Mr Love is a British national who, through his mother, also has Finnish nationality. He will be 33 in December 2017. He has a steady girlfriend but is single. The judge made unchallenged findings about his mental and physical conditions, though Mr Fitzgerald submitted that she had not dealt with important evidence about the effect on Mr Love of the regimes to which he would be subject if extradited. We shall come to that point later, but the submissions about the forum bar require the findings about Mr Love's mental and physical conditions to be set out first:

    ``75. It has been accepted by Mr Caldwell on behalf of the Government that Mr Love suffers from Asperger Syndrome (AS) although the nature and degree was challenged. It is clear from Professor Baron-Cohen's evidence, which I accept, that Mr Love is high functioning, has the capacity to participate in a trial and give instructions to his lawyers. He does not have AS in combination with learning difficulties, attention deficit and language. His AS is a ``very severe disability because it causes him to become so absorbed in his interests that he neglects important areas of his life, such as his studies, and even his health (...).''

  16. It is also clear from the evidence, and from seeing Mr Love in court that he is highly intelligent and articulate. Professor Kopelman also comments his ``thinking processes are generally excellent (...).''

  17. It is not disputed that Mr Love suffers from eczema which he has had since birth, and which is a partly stress-related physical condition exacerbated by his mental health issues (...)....

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