Lauri Love, the British student accused of hacking into US government websites, would be at high risk of killing himself if extradited to the US, the high court has heard.
Love, who lives in Suffolk and has Aspergerâs syndrome and severe depression, should be tried in Britain for his alleged offences, his counsel, Edward Fitzgerald QC, told the court.
Opening an appeal against an earlier decision that Love should be tried in the US, Fitzgerald said: âThereâs a very real risk that he would commit suicide [if extradited]. Thereâs a virtual certainty that his condition would deteriorate.â
Love, 32, who holds joint British and Finnish nationality and is studying electrical engineering, also has eczema and asthma. âAll these conditions would be exacerbated by the stress of removal,â Fitzgerald told the lord chief justice, Lord Burnett of Maldon, and Mr Justice Ouseley, who were hearing the case.
âThe district judge [at the earlier Westminster magistrates court hearing] found there was a high risk of suicide if he was extradited. He has compelling reasons, including the care and support of his family, to stay in this country. The proceedings [the hacking trial] can take place in this country. Heâs a UK citizen. His conduct took place here.
âHe was arrested by the [British] police and they conducted an investigation before ceding priority to the USA … Thereâs a general practice of trying hackers here who are UK citizens even where the target or whatever harm was done was in the USA.â
Removing Love to a US detention centre would expose him to âa real risk of inhuman treatment given … the fact that he would be taken away from his family and the support he needsâ.
Fitzgerald added: âWe are not arguing for impunity. We are arguing that the proper place for him to be tried is in the UK and not the USA.â
The hearing is expected to last up to two days. The US government is represented by the Crown Prosecution Service. Love is represented by Fitzgerald and Ben Cooper of Doughty Street chambers.
Last year, the district judge Nina Tempia ruled that Love should be extradited.
His case is regarded as the key test case for the âforum barâ, a defence against extradition that was introduced after the Gary McKinnon case to protect vulnerable defendants who could be tried in the UK. In 2012, McKinnon successfully defeated an attempt to extradite him to the US on hacking charges.
In skeleton arguments submitted to the court, Peter Caldwell for the CPS argued that: âThe district judge was correct to find that respect for the longstanding comity of relations between the UK and the USA and the public interest in allowing the prosecution of serious crime outweighed the hardship inherent in extradition.
He added: âConduct which constitutes an extradition offence may not necessarily be capable of prosecution in the relevant jurisdiction of the UN … If the effects of the conduct were not felt in the relevant part of the UK, there could be no liability under domestic criminal law.â
The CPS submission said Love had been arrested on 25 October 2014 by British law enforcement authorities at a house in Stradishall, Suffolk. One of his computers, it claimed, was logged on to an online chatroom using the nickname âNSHâ. Data stolen during âintrusionsâ into US computers were found on his systems, the CPS said.
The human rights organisation Liberty, which has campaigned for improvements in UK-US extradition arrangements to protect British defendants, is involved in Loveâs appeal.
Before the hearing, Emma Norton, the head of casework for Liberty, said: âIf someone is accused of having committed a crime here in the UK, this is where they should stand trial. Extradition powers exist to stop fugitives escaping justice, not to pack vulnerable Britons off to foreign courts and unfamiliar legal systems.
âWhen Gary McKinnon was spared a similar fate, Theresa May introduced reforms to prevent extradition if the alleged crime took place here. But this protection has yet to be exercised. Now is the time â the stakes could not be higher.â
Nick Vamos, the former head of extradition at the CPS who is now a partner at the law firm Peters and Peters, told the Guardian: âThe forum bar sets a high threshold for resisting extradition because the courts cannot go behind a decision by the CPS not to prosecute here.
âWhere, as in Mr Loveâs case, the CPS have decided not to prosecute, the court does not have the power to make them change their minds… [If] he was doing it from the UK is not a reason, of itself, to prevent his extradition. However, if his extradition would risk him committing suicide then the courts must take that into account.â
Kevin Kendridge, solicitor advocate and the head of the extradition department at Kaim Todner Solicitors, said: âLauri Loveâs case is exceptional because the Crown Prosecution Service has chosen not to prosecute here in England, unlike in every other recent similar case involving cross-border hacking allegations between England and the US, with the exception of Gary McKinnon whose extradition was blocked by Theresa May on article 3 grounds.
âIn Lauriâs case the district judge ruled he suffered from a âsevere disabilityâ because of his autism, that his physical health causes him âsevere problemsâ and that extradition exposes him to a high risk of suicide, and that this risk derives from his mental condition and so is beyond his own control.â
The hearing continues.