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extradition
The Lynch extradition – what does it reveal about UK and US tactics and tools?
  • Oct 21, 2021
  • Latest Journal

By Nick Vamos, Partner, and Sefki Bayram, Legal Researcher, at Peters & Peters LLP 


In July 2021, former CEO of Autonomy, Michael Lynch, lost the first round of his US extradition battle.  The court’s judgment is an important addition to the body of high-profile cases, from Gary Mackinnon in 2007 through to Julian Assange earlier this year, looking at the extradition arrangements between the UK and US.  Those arrangements are often criticised for being unfairly imbalanced, making it easier to extradite people to the US than vice versa. Despite a comprehensive independent review in 2013 finding that there were no legal disparities in the treaty or its application in the UK courts, these criticisms persist.  As Lynch’s case shows, the disparity lies not in any legal texts, but in the differing approaches of prosecutors on either side of the Atlantic, and the tools at their disposal to secure a conviction.  

Lynch’s extradition story
Mr Lynch’s extradition has been requested to stand trial on charges of conspiracy, securities fraud and wire fraud in connection with the $11bn sale of Autonomy to Hewlett Packard (‘HP’) in 2011. The US indictment alleges that Mr Lynch deliberately concealed and misrepresented the true financial performance of his company prior to the sale.  HP is already suing Mr Lynch in a long-running High Court case in which judgment is pending.  Mr Lynch failed in a bid to adjourn the extradition proceedings to await the outcome of the civil case.
 
US extradition requests come under ‘Part 2’ of the Extradition Act 2003.  The UK court does not determine guilt or innocence, nor review the underlying evidence.   However, it must decide whether the request is valid, whether any of the statutory bars to extradition apply, and whether extradition would be compatible with the requested person’s human rights. In court, Mr Lynch advanced five arguments:

1.  The offences for which he was sought did not amount to extradition offences because the conduct alleged did not occur within the US for the purposes of section 137(3)(a), and the conduct alleged, if properly transposed, would not amount to an offence in the UK to satisfy the dual criminality test under section 137(3)(b);

2. His extradition would be unjust or oppressive by reason of the passage of time: the conduct alleged dated back to 2009 and the first indictment was not issued until 2018;

3. His extradition would not be in the interests of justice under the so called ‘forum bar’ because the alleged criminal conduct concerned the takeover of a UK company, audited in the UK and applying UK accounting standards, which could be prosecuted in the UK (and was in fact investigated by the SFO). In addition, Mr Lynch is a British citizen with ‘lifelong’ links to the UK;

4. If extradited he would face a real risk of treatment contrary to Article 3 of the European Convention on Human Rights (‘ECHR’). In particular, that the provision of healthcare at his post-conviction detention facility would be so inadequate as to amount to inhuman or degrading treatment;

5. The extradition request contained material misrepresentations and omissions of fact and completely avoided the fact of the ongoing civil trial before the High Court such as to amount to an abuse of process.

Unfortunately for Mr Lynch, District Judge Snow rejected them all.

On ground one, the District Judge considered that where the “effects of the Defendant’s conduct” were felt in the USA and there had been significant financial and reputational harm caused both directly and indirectly within the USA to HP, this was sufficient for the purposes of section 137(3)(a). Furthermore, when the conduct alleged against Mr Lynch was transposed to the UK, it was capable of amounting to offences under UK law satisfying section 137(3)(b). On ground two, the District Judge concluded that there was no injustice or oppression as a result of the delay by the US authorities.

On ground four, the District Judge accepted that Mr Lynch suffered from various chronic medical conditions but was satisfied, on evidence from a Medical Director of the US Federal Bureau of Prisons, that those conditions would be adequately treated in custody. The District Judge rejected the contrary evidence of a defence expert, who he described as “an unreliable partisan witness” whom on occasion presented his evidence “in a misleading way”, adding that he had “significant doubts” that the defence expert was in fact an expert.

On ground five, the District Judge concluded that there was no abuse of process and that the information contained in the particulars was correct and complete.
It was the court’s consideration of ground 3 - the forum bar - in cases where both the UK and US had jurisdiction to prosecute which is of most interest, and is likely to give rise to further arguments on appeal.   

The Forum Bar
Under the forum bar, the court is required first to consider whether a substantial measure of the alleged conduct was performed in the UK. In other words, did the UK have concurrent jurisdiction to prosecute Mr Lynch for the same alleged criminality? If so, the court is then required to consider seven ‘specified matters’ (and only those matters) to decide whether the extradition would be in the interests of justice.
 
The US Government conceded that a substantial measure of Mr Lynch’s conduct occurred in the UK. As such, the arguments focused on the specified matters, and whether they pointed towards or away from extradition. Dealing with each in turn:

(a) The place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur

The District Judge held that in cases of alleged financial loss and harm, the court must distinguish between how quantifiable loss or damage has been caused and (legally and factually) to whom.  The judge found that the loss was intended to and actually fell on HP – a US-based entity with predominantly US-based shareholders – who had been forced to issue an $8.8bn write-down.  The judge also found that HP had suffered harm far beyond its financial losses, including the need to defend lawsuits, bring civil proceedings, and assist multi-jurisdictional investigations, all of which caused lasting reputational injury.  The judge rejected Mr Lynch’s argument that the court was not permitted to consider reputational harm for this purpose, which might be correct when conducting a dual criminality assessment but not when considering forum.

(b) The interests of any victims of the extradition offence
The judge concluded that there was “a clear public interest in the trial of the CEO of a major public company, who was responsible for an alleged fraud causing very significant losses”. Furthermore, he agreed with the US Government that the interests of HP and US investors, as victims, would not be satisfied by either the outcome of the civil claim or the conviction of Mr Hussain, Autonomy’s former CFO, currently serving a five-year sentence in the US for his role in the fraud.  

(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
This subsection entitles (but does not require) a UK prosecutor to submit to the court his or her belief that the UK is not the most appropriate jurisdiction in which to prosecute the alleged conduct. In this case, the SFO had investigated parts of the alleged fraud between 2013 and 2015 before ceding jurisdiction to the US authorities. The SFO prosecutor had submitted a statement in the extradition proceedings setting out the basis for that decision and his belief that the case should be prosecuted in the US.  Of most interest and relevance was the question of whether evidence obtained from co-operating witnesses in the US would be admissible against Mr Lynch in any equivalent UK criminal proceedings.  First, the SFO’s view was that securing the evidence of the US co-operating witnesses in admissible form was likely to be problematic, and second that the SFO would have difficulty obtaining all relevant unused material from the US authorities relating to these witnesses (and, it is assumed, other aspects of the US investigation) in order to discharge its disclosure obligations.   

Following existing case law, the District Judge noted  that he was not entitled to review the SFO’s belief on any grounds other than irrationality.  As the belief was not irrational, it strongly favoured extradition.

(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
Relying inter alia on the statement from the SFO, the court held that the evidence of the co-operating witnesses was significant, and that it would be difficult to prove the case where that evidence was not available in the UK. It was unclear whether these witnesses would co-operate or could be compelled by US prosecutors to give evidence in the UK and procedures to obtain their co-operation would result in significant delay. In the view of the SFO, “seeking to 'convert' such witnesses into witnesses for the Crown in an English criminal proceeding would give rise to considerable complexity and uncertainty of outcome”.  It was therefore unclear whether the entire corpus of US evidence would be transferable to the UK.

(e) Any delay that might result from proceeding in one jurisdiction rather than another
The District Judge was satisfied that the SFO would take considerable time before it was able to make a decision to charge, and that further substantial delays would commence in the UK.  

(f) The desirability and practicability of all prosecutions relating to the extradition offence taking place in one jurisdiction
The District Judge accepted, as a matter of public policy, the desirability of co-conspirators being tried in the same jurisdiction. He recognised that Mr Hussain had already been tried in the US and so could not be tried alongside the Defendant. However, as was established in Ejinyere v US [2018] EWHC 2841 (Admin), this section does not require a joint prosecution and, even where joint trials are not possible, there were “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.” As to Mr Lynch’s complaint that there would be an inequality of arms if he were to be tried in the US because prosecution witnesses had been granted immunity, but his defence witnesses had not, the District Judge ruled that it was open to him to make an application to the US court for defence witness immunity.

(g) The Defendant’s connections with the United Kingdom
The judge agreed that Mr Lynch’s ties to the UK are strong and long-standing, and this factor was an important one weighing against extradition.

However, applying an overall evaluative process of the factors for and against extradition, the District Judge held that extradition to the USA was in the interests of justice and that the forum bar did not apply.

Transatlantic comparisons
This case highlights some of the stark differences between the UK and US criminal justice systems. The US, especially in high-profile fraud cases, is heavily reliant on ‘flipping’ more junior employees into co-operating witnesses through plea bargaining, which in turn is reliant on very high sentences and heavy discounts, both of which are in the gift of the US prosecutor.  The equivalent UK framework does not permit such easy ‘flipping’ and the heavy-handed, plea-bargaining tactics employed by US prosecutors are often viewed as coercive and unfair on this side of the Atlantic.  By the same token, disclosure obligations on UK prosecutors can be considerably more onerous than for their US counterparts, especially in relation to the process by which a witness was persuaded to co-operate and any inducements they may have been offered.  Therefore, it is not hard to understand why the SFO viewed the fact that the US case against Mr Lynch hinged on evidence from co-operating witnesses as potentially an insurmountable barrier to a UK prosecution.

Implications for future cases
Mr Lynch’s case illustrates a wider and persistent problem in cases of UK/US concurrent jurisdiction. The court’s forum analysis was heavily swayed by the SFO’s belief that the UK was not the correct jurisdiction in which to prosecute Mr Lynch.  That belief, in turn, was almost entirely dependent on the SFO’s view that it would be very difficult to use evidence from US co-operating witnesses in a UK trial, as well as to discharge its disclosure obligations in respect of those witnesses.  

Within the confines of Mr Lynch’s extradition proceedings, the conclusion that the UK was not the correct jurisdiction, and the weight placed on that by the District Judge is hard to challenge.  However, it raises the possibility that the use of co-operating witnesses will be a US ‘trump card’ in concurrent jurisdiction discussions between the respective prosecutors and any subsequent extradition proceedings.  Given the healthy and justifiable aversion within the UK criminal justice system to eye-watering US sentences, over-powerful prosecutors, and coercive plea bargaining, how at the same time can these factors be in the ‘interests of justice’ to support extradition when the defendant could be prosecuted in the UK instead?  This is the conundrum posed by Mr Lynch’s case, which our extradition procedures appear powerless to address.

About the authors
Nick Vamo
s, Partner, Former Head of Special Crime and Head of Extradition at the Crown Prosecution Service, Nick has unique expertise and insight into complex, international, high-profile and sensitive criminal matters.

Sefki Bayram, Legal Researcher Peters & Peters LLP - www.petersandpeters.com