Extradition roundup

In Christopher Hamilton v Government of the United States of America [2023] EWHC 2893 (Admin), the High Court overturned a decision to order the extradition of a requested person to the US on the grounds of forum.

The appellant’s extradition was sought in relation to allegations that he had conspired to assist in the laundering of part of the proceeds of a £4bn fraudulent Ponzi scheme concerning the sale of ‘OneCoin’, a purported cryptocurrency.

At the extradition hearing at Westminster Magistrates’ Court on 9-10 February 2022, Hamilton and his alleged co-conspirator opposed extradition on a number of grounds, including that the request was an abuse of the court’s process, that extradition would not be in the interests of justice and was therefore barred on forum grounds, and on the basis of prison conditions in the US. The judge rejected all of Hamilton’s challenges to extradition and sent the case to the secretary of state, who ordered his extradition on 26 October.

Following a renewed application, the High Court granted Hamilton permission to appeal on a single ground: that the judge was wrong not to order his discharge from the proceedings on grounds of forum, per section 83A(1) of the Extradition Act 2003. The ‘forum bar’ arises where a substantial measure of a requested person’s relevant activity was performed in the UK and, having regard to specified matters relating to the interests of justice, extradition should not take place.

The court allowed Hamilton’s appeal, holding that it had not been given ‘any convincing reason as to why the UK is not the most appropriate jurisdiction for a prosecution’.

The harm Hamilton had allegedly directly caused, and intended to cause, the court held, was the misuse of the UK banking system for the purpose of money laundering. Although funds, overall, were said to have been laundered through accounts in the US and UK, the greater share of Hamilton’s alleged laundering that was attributable to his conduct occurred in the UK. He had transferred money through UK business and personal bank accounts, and did not appear to have had control of any US accounts.

The court considered a number of other factors, including the interests of victims. It concluded that this factor did not weigh significantly in either direction as there were victims worldwide. However, the High Court agreed with the district judge that Hamilton’s connections with the UK weighed heavily against extradition, noting: ‘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.’ This was further strengthened by fresh evidence of Hamilton’s health conditions and the ‘close and dependent relationship with his treating clinicians’.

In a postscript, the court emphasised that Hamilton’s success on appeal meant he should now be answerable to the law in the UK, and cited the words of Lord Burnett in Love v USA [2018] EWHC 172 (Admin): ‘If the forum bar is to operate as intended, where it prevents extradition, the other side of the coin is that prosecution in this country rather than impunity should then follow.’

Popoviciu v Romania

In Popoviciu (Respondent) v Curtea De Apel Bucharest (Romania) [2023] UKSC 39, the Supreme Court held that a convicted person opposing extradition must show on the balance of probabilities that their conviction in the requesting state was unjust.

The Supreme Court had been asked to answer the following question, certified by the High Court: in a conviction extradition case, is it sufficient for the requested person to show substantial grounds for believing that there is a real risk that his trial was so flagrantly unfair as to deprive him of the essence of his Article 6 rights, and therefore a real risk that his imprisonment in the requesting state will violate his Article 5 rights?

The respondent, Mr Gabriel Popoviciu, was convicted in Romania of two offences and sentenced to seven years in prison. A European Arrest Warrant (EAW) was issued in August 2017 and extradition was ordered at Westminster Magistrates’ Court on 12 July 2019.

Popoviciu appealed on the basis that the trial judge in Romania had an undisclosed and inappropriate longstanding relationship with the prosecution’s primary witness. The High Court overturned the extradition order (see [2021] EWHC 1584), holding that there was a real risk that the trial in Romania had been flagrantly unfair.

Following an appeal by the Romanian authorities, the Supreme Court ruled that the High Court had misdirected itself and applied the wrong standard of proof, holding: ‘Mr Popoviciu had to show that the allegations of bias and corruption that he made against Judge Tudoran were true on the balance of probabilities, rather than showing merely that there were substantial grounds for believing that there was a real risk that they were true.

‘Where a requested person alleges that they have been convicted in a trial that was so flagrantly unfair that it deprived them of the essence of their right to a fair trial under Article 6, and that accordingly extradition would violate their right to liberty under Article 5, they have to prove on the balance of probabilities that the trial was flagrantly unfair, subject to an exception for cases involving evidence obtained by torture.’

It is worth noting that, shortly after the Supreme Court had heard oral arguments in the appeal, the Bucharest Court of Appeal suspended the execution of Popoviciu’s conviction and sentence. The EAW was subsequently withdrawn and the Supreme Court duly made an order dismissing the Romanian authorities’ appeal pursuant to section 43(4) of the Extradition Act 2003. However, given the importance of the question certified by the High Court, the Supreme Court delivered its judgment notwithstanding the withdrawal of the EAW.

Will Hayes is a senior associate (barrister) at Kingsley Napley, London