Criminal Law

U.K. extradition case instructive for Canada

By Peter Small, Contributor

Britain’s high court has made a well-considered decision in refusing to allow the extradition of an Englishman with mental health issues to face computer hacking charges in the United States, says Toronto criminal lawyer Melanie Webb.

“This case is an example of the appellate court in the United Kingdom giving serious and careful consideration to the issues raised, and ultimately, coming to the right and humane decision,” she tells

Webb, founder and principal of Melanie J. Webb Barrister, points to the decision in which the High Court of Justice overturned a lower court decision allowing the U.K. government to extradite the 34-year-old to face trial in the U.S. on charges of launching cyberattacks on American public and private-sector computer networks.

“We come to the conclusion that [his] extradition would be oppressive by reason of his physical and mental condition,” the judges wrote in their Feb. 5 decision.

The U.S. government says it will not appeal the ruling, Bloomberg reports.

Although the attacks were allegedly launched from Great Britain, the targets were in three U.S. federal jurisdictions in New Jersey, New York state and Virginia.

The man’s lawyer stressed that the defendant was not seeking impunity, but contended he could be tried in Great Britain where he has strong family and community supports.

The court heard considerable evidence, tendered on both sides, about his mental health issues and whether his risk of committing suicide could be managed in American prisons if he were extradited, Webb says.

His circumstances were unusual because of the nature of his primary disorder, Asperger syndrome, which is an autism spectrum disorder, she adds.

"He was described as being ‘high functioning,’ highly intelligent and articulate, and clearly able to participate in a trial and provide instructions to counsel,” Webb says. But he also suffered from depression and anxiety, asthma, and eczema, all of which was exacerbated by his mental health problems, she says.

“It was not just that he was a suicide risk," she says. “He had expressed his intention to commit suicide if extradited, and the experts were convinced that it was a genuine intention.”

He would have no support network available to him if he were sent to the U.S. and held in remand centres for trial, as his family would be in the United Kingdom, Webb says.

The judges heard that his Asperger syndrome would make him extremely vulnerable in prison because he could not read social cues or conform to norms, she says.

“He would be an easy target for abuse. He would, therefore, be at great risk of segregation.”

The court heard about the poor conditions in the American institutions in which he was likely to be held, Webb says. Evidence was also submitted about the harmful impact of solitary confinement, particularly on people with mental illnesses, she adds.

Webb notes that the appellate court concluded that measures put in place by U.S. prison authorities to prevent suicide would be, as it said, “likely to have a seriously adverse effect on his very vulnerable and unstable mental and physical well-being.”

The court acknowledged that “oppression” as a bar to extradition requires a high threshold and that it is not easily surmounted, Webb says. However, they were satisfied that under the circumstances, it would be oppressive to extradite him, she adds.

“A cynic might suggest that this opens the door for people to falsely claim suicidal ideation in the hopes of avoiding extradition,” Webb says. “It is by no means that simple.”

In this case, there was extensive expert evidence tendered on the issue, she says. “A person cannot simply submit a brief letter from their doctor, and expect that this will solve their troubles.”

The ruling could be influential in Canada, Webb says.

It is relevant to the larger discussion that Canadians are having about the impact of solitary confinement and how prisons manage people with mental disorders, she says.

“The decision, in this case, is something that we might look to in our approach to comparable extradition cases,” she says.

The U.K.’s extradition legislation has more specificity than Canada’s in some respects, Webb adds.

In the United Kingdom, the legislation requires a judge to order the discharge of the person sought if it appears “that the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him,” she says.

In Canada, the issue of extradition being “unjust and oppressive” only comes into play when the minister of justice makes the final determination in the second, “surrender stage” of the process but is not considered by the extradition judge during the first, “committal stage,” Webb says.

In addition, Canadian legislation doesn’t include specific consideration of the “physical or mental condition” of the person sought as it does in the U.K., she says. “It could be argued that similar considerations should be brought forth to the attention of the minister of justice,” she says.

The Canadian government is considering reforms to the Extradition Act after an Ottawa professor, sent to France, was held in solitary confinement for years in the fatal bombing of a Paris synagogue before he was released in January for lack of evidence, the CBC reports.

Canada’s extradition system is frequently criticized as simply “rubber-stamping” the request, Webb says.

“There is a good argument to be made that the legislation governing extradition matters should be re-examined for multiple reasons,” she says. “Having said that, many parts of our criminal justice system dealing with offences here in Canada are also badly in need of reform, and progress is painfully slow.”

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