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USA extradition oppressive and unjust: Divisional Court allows appeal of British man facing $5m fraud trial

The Divisional Court, composed of Lord Justice Leggatt and Mr. Justice Jay has allowed the appeal of a British man facing extradition to the United States to stand trial on charges of a $5m mortgage fraud. The court found his extradition would be both unjust and oppressive due to the 12-year passage of time since the alleged commission of the offence and the appeal hearing.

Represented by Malcolm Hawkes, in 2011 the Appellant, while resident in the USA, had been interviewed on a voluntary basis by the FBI about his work as a mortgage broker. At that stage, the investigation was focused on an alleged conspiracy between brokers and property developers to find buyers of properties at artificially inflated prices to reap a commission from the sale price. The buyers’ means were said to be far below those required for such purchases and multiple mortgages fell quickly into default.

The Appellant, accompanied by an attorney attended a 3-hour FBI interview and answered all questions put to him. However, he was never told he was the subject of any ongoing investigation and was not under any restrictions not to leave his home or the country. Shortly thereafter, he moved back to the UK with his family.

For many years thereafter, the US authorities took no active steps either to try to locate the Appellant or to inform his attorney that they wished to prosecute him. The US government claimed they could not issue an extradition request until 2018 because they didn’t know the Appellant’s address. They also claimed they didn’t contact the Appellant’s attorney, because that is not what is done. Both explanations were rejected.

Meanwhile, after 7 years of silence, as is standard practice, the Appellant’s attorney purged his file of notes and evidence. 

While the Appellant, back in the UK, had led a blameless and productive life where he ran a business with 25 employees and also cared for his seriously ill wife. There was no evidence the Appellant had ever fled the United States, concealed his whereabouts or evaded arrest.

In his judgment, with whom Mr. Justice Jay agreed, Lord Justice Leggatt found the district judge had fallen into material error in his treatment of the facts, evidence and the law. The district judge had speculated on matters which were not open to him, including the Appellant’s family surviving on unknown savings during his absence, hiring more staff to run his business, or even taking a mortgage holiday to cover the unknown period of the Appellant’s absence from the UK.

The clear, culpable delay by the US government had created a real risk of prejudice to the Appellant, through the destruction of material evidence, the loss of access to other evidence as well as the natural fading of memory due to the effluxion of time.

In finding extradition both unjust and oppressive, the court held that it did not need to decide whether extradition would be a proportionate interference with the Appellant’s right to private and family life.

In JE v Government of the United States of America, Malcolm was instructed by Giovanna Fiorentino of Lansbury Worthington solicitors.