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17/05/23

UK – USA Extradition | Kangs Extradition Defence Solicitors

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In this article, Hamraj Kang details the recent decision of the High Court in Michael Lynch v Government of the United States of America [2023] EWHC 876, handed down on 21 April 2023, in relation to Dr Lynch’s extradition.

Our team of extradition lawyers, headed by Hamraj Kang, takes great pride in representing a wide variety of clients in relation to extradition proceedings before Westminster Magistrates’ Court and the High Court.

A recent example of our team successfully defending an extradition request from the Government of the United States of America can be found here: Success in USA Extradition Proceedings.

From our offices in Mayfair, our Extradition Team covers all proceedings before Westminster Magistrates’ Court and attends court hearings at short notice in circumstances where a client has been arrested and produced pursuant to an arrest warrant issued on behalf of a Requesting State.

Kangs Solicitors defends clients against extradition requests from a variety of countries whether our client is a UK National wanted by a foreign government or a non-UK National being sought by their home country. We understand that some requests can be politically motivated and will seek to defend such matters vigorously on behalf of each client.


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Michael Lynch v USA | Kangs Extradition Solicitors London

Dr Michael Lynch, the founder of the software FTSE 100 company Autonomy, has now been extradited to the USA to face fraud allegations over the sale of Autonomy to Hewlett-Packard (‘HP’), after the High Court denied him permission to appeal.

As explained in more detail in our previous article, the central allegation is that Dr Lynch and other company executives of Autonomy dishonestly inflated turnover and profits to secure the sale of the company to HP for £11.7 billion.

Dr Lynch had applied for permission to appeal against the decision of the District Judge at Westminster Magistrates’ Court to send his case to the Secretary of State. The District Judge’s ruling was dated 22 July 2021 and followed a four-day Extradition Hearing. In January 2022 the Secretary of State ordered Dr Lynch’s extradition to the USA.

On 21 April 2023, two High Court Judges refused to grant him permission to appeal.

Dr Lynch has been accused of ‘one of the largest frauds ever prosecuted by the United States Department of Justice’.

What was the decision?

The court held that none of the grounds of appeal was arguable and the Judges refused permission to appeal.

What were the grounds of appeal?

On behalf of Dr Lynch, permission to appeal was sought on the five grounds that the District Judge was wrong to decide:

  • To reject the Forum bar and conclude that extradition was in the interests of justice
  • That the Government of the USA (‘the Respondent’) had established beyond reasonable doubt that the alleged offences satisfied the relevant extradition offence tests, in particular, the ‘dual criminality’ requirement
  • That Dr Lynch’s extradition was not barred by the passage of time
  • That extradition would be compatible with Dr Lynch’s human rights; and
  • That the proceedings did not amount to an abuse of process

Forum bar

Under s 83A of the Extradition Act 2003 (the ‘Act’), the extradition of a person to the USA is barred because of the Forum if the extradition would not be in the ‘interests of justice’.

‘Interests of justice’ encompasses:

  • The place where most of the loss resulting from the extradition offence occurred (s 83A(3)(a))
  • The interests of any victims of the extradition offence (s 83A(3)(b))
  • Belief of a Prosecutor that the UK is not the most appropriate jurisdiction to prosecute the ‘Requested Person’, in this instance Dr Lynch, in respect of the conduct constituting the extradition offence (s 83A(3)(c))
  • Whether evidence necessary to prove the offence is or could be made available in the UK (s 83A(3)(d))
  • Any delay that might result from proceeding in one jurisdiction rather than another (s 83A(3)(e))
  • The practicability of all prosecutions taking place in one jurisdiction, having regard to the jurisdictions in which witnesses and co-defendants are located, and the practicability of the evidence of such persons being given in the UK (s 83A(3)(f))
  • The ‘Requested Person’s’ connections with the UK (s 83A(3)(g))

Dr Lynch challenged the District Judge’s conclusions on each of the factors in s 83A(3) but the court found no flaws in the District Judge’s approach to any of these statutory factors.

The court confirmed that the Test it had to apply, in deciding whether to grant permission to appeal on an issue, was whether the District Judge’s decision was arguably wrong as opposed to determining whether the District Judge should have given more or less weight to a particular statutory factor.

Loss/Harm – Section 83A(3)(a)

HP, through its ownership and control of Hewlett-Packard Vision BV, had acquired an asset for which it paid $11.7 billion but the value of which had been vastly overstated.

Dr Lynch argued that the entire loss resulted from the overpayment for the shares of Autonomy, an English company, with such sale having taken place in England.

Accordingly, it followed that, as all of the loss took place in England, most of the harm resulted from misleading the market in England and, therefore, the District Judge was wrong in his assessment that most of the resulting loss had occurred in the USA.

The court held that the loss was suffered by HP, or its shareholders, the majority of whom were based in the USA and, therefore such loss mainly affected residents of the USA.

Interests of any victims – Section 83A(3)(b)

Dr Lynch argued that the UK civil fraud trial, being separate proceedings in the High Court arising out of HP’s purchase of Autonomy, was very relevant to the alleged victims’ interests and that the District Judge’s analysis of shareholder losses was flawed.

The court observed that the civil proceedings had not concluded, they would be contested and the extent of compensation resulting from the proceedings was unknown.

The court continued to maintain that the greater loss had arisen in the USA, where the victims were located, and the fact that these victims had an interest in seeing Dr Lynch stand trial strongly supported a Trial in the USA.

Prosecutor’s belief – Section 83A(3)(c)

The Serious Fraud Office (‘the SFO’) investigated the alleged fraud by Dr Lynch in 2013-2015 and ceded its investigation to the USA based on the evidence and information then available. The SFO believed that the UK was not the most appropriate jurisdiction to prosecute Dr Lynch.

It was argued on behalf of Dr Lynch that the basis on which the Prosecutor had formed his view was flawed and, therefore, the District Judge should have given this factor minimal weight.

The court rejected the argument that the District Judge was required to consider the reasons for the Prosecutor’s belief, decide whether those reasons were justified and supported the Prosecutor’s conclusion.

The court explained that the District Judge was entitled to set out the Prosecutor’s belief and reasoning, consider them and conclude they were not irrational and decided that he had carried out this exercise.

Whether evidence could be made available in the UK – Section 83A(3)(d)

Dr Lynch also argued that the District Judge was wrong to conclude that co-operators giving evidence could not be compelled to give evidence in a UK prosecution and that mechanisms under USA law enabled such evidence to be given in the UK if required.

The court upheld the District Judge’s conclusion that the law was unclear and, if witnesses did not cooperate it was by no means certain that they could be compelled by USA Prosecutors to give evidence in the UK.

The procedures to obtain their cooperation by way of mutual legal assistance and the processes in the USA and the UK would lead to significant delay.

Delay in trial, practicability prosecuting, and connection with the UK – Section 83A(3)(e)(f)(g)

The court held that:

  • There would be considerable delay if there was a prosecution in the UK as the UK authorities had not been involved in this case since 2015 and would need considerable time to investigate and re-acquaint themselves with the relevant material, whereas the authorities in the USA were ready for trial
  • The District Judge was correct in holding that it is practical to prosecute Dr Lynch in the USA. One of the reasons was the USA Judge had indicated an intention to try Dr Lynch and Mr Chamberlain, co-conspirator and Autonomy’s former Vice-President of Finance, jointly under USA proceedings.
  • The benefit of trying all co-defendants under the same law ensured that they were all tried and, if required, sentenced under the same legal regime
  • The District Judge had correctly identified Dr Lynch’s long-standing ties to the UK. The court noted that Dr Lynch was a British National, owner of property in the UK, and had been an advisor to the UK Prime Minister

The court, therefore, refused permission to appeal on the ground of Forum.

Dual Criminality

The court held that Dr Lynch’s conspiracies constituted an ‘extradition offence’ under the Act because:

  • Firstly – it was a straightforward territorial conspiracy in the USA because some overt acts in furtherance of the conspiracy took place there and the effects were felt in the USA
  • Secondly – if Dr Lynch’s conduct was transposed to England and Wales, such conduct would also be triable as a territorial conspiracy in England and Wales

Passage of Time, Convention Rights, and Abuse of Process

The court held that there was no delay by the USA that served as a bar to Dr Lynch’s extradition. Dr Lynch would not be able to rely on the passage of time during periods when he was involved in concealing his allegedly fraudulent conduct.

Subsequently, it was argued on Dr Lynch’s behalf that extradition was barred on human rights grounds under Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The court held that there was no risk of violating Article 3 if Dr Lynch was imprisoned should he be convicted in the USA. It held that the District Judge was entitled to accept the evidence submitted by the Respondent that Dr Lynch will be housed in a suitable institution in the USA and be properly treated in regard to his medical condition.

Finally, Dr Lynch relied on, inter-alia, the Respondent’s misstatements, in relation to the extradition request, to submit that it was an abuse of the court’s process. The court held that the misstatements in the request were minor and did not amount to an abuse of the court’s process.

Our Comment

Extradition is decided based on an ‘unproven case’ provided the USA Government has met the requirements of the Act and the ‘Requested Person’ cannot satisfy one of the statutory bars to extradition.

The primary argument advanced against extradition involving the USA is ‘Forum’, which the High Court failed to accept in Dr Lynch’s case.

For the time being at least, it appears that the UK courts support the ‘long-arm jurisdiction’ of USA law enforcement, which will continue to demand the extradition of UK based individuals.

How Can We Help?

We can assist you by:

  • Advising you at the Police Station on initial arrest under the terms of an arrest warrant
  • Representing you at the First Hearing at Westminster Magistrates’ Court and advising in relation to securing bail
  • Preparing your discrete Defence Case and guiding you through the Court process and providing guidance on how to navigate the extradition proceedings
  • Instructing a leading extradition law barrister or Kings Counsel to present your case in court

How to Contact Us | Kangs Leading Extradition Lawyers

Our Extradition Team assists clients throughout the country.

We work proactively with each client and only instruct the very best extradition barristers and Kings Counsel in the pursuit of the most favourable resolution available.

If we can be of assistance, our Team is available via telephone 0333 370 4333 and by email info@kangssolicitors.co.uk.

We provide initial no obligation discussion at our three offices in London, Birmingham and Manchester.

Alternatively, discussions can be held virtually through live conferencing or telephone.

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Hamraj Kang

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07976 258171

020 7936 6396

0121 449 9888

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