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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Lynch v Government of the United States of America  EWHC 876 (Admin) (21 April 2023)
Cite as:  EWHC 876 (Admin)
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KING'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE JULIAN KNOWLES
| Michael Lynch
|- and -
|Government of the United States of America
Mark Summers KC and Rachel Barnes KC (instructed by CPS) for the Respondent
Hearing dates: 15-16 March 2023
Crown Copyright ©
Lord Justice Lewis and Mr Justice Julian Knowles handed down the following judgment of the Court:
"Autonomy's principal business was the sale and supply of software to companies, in particular in the area of 'unstructured data analysis' through a platform called 'IDOL' (Intelligent Data Operating Layer). In short, IDOL was an engine designed to enable computers to make sense of unstructured data using probability-based theories. The technology was described by [Hewlett Packard's] Meg Whitman as 'almost magical'. The algorithms designed and sold in Autonomy software were highly sophisticated, enabling analysis of unstructured data in the form of, inter alia, emails, telephone conversations, website pages etc. The wide utility of this technology is easy to see. By way of illustration, IDOL enabled financial institutions to monitor emails and telephone calls to identify suspicious conduct for compliance purposes. The attractiveness of this type of advanced technology enabled Autonomy to sell its products across the world to approximately 20,000 customers, including global leaders in the fields of consulting and professional services, media, pharmaceuticals and healthcare, telecommunications, aerospace, e-commerce, legal and manufacturing, as well as to government agencies, intelligence defence and technology services and to the public sector."
"4. This prosecution arose from an investigation by the Federal Bureau of Investigation ('FBI'), which revealed that from January 2009 to October 2011, Michael Lynch, a citizen of the United Kingdom, was the leader of a corporate conspiracy to fraudulently inflate the reported revenue, earnings and value of a publicly traded company, Autonomy Corporation plc ('Autonomy'), and to sell Autonomy to Hewlett-Packard ('HP'), a publicly traded company based in the Northern District of California, for approximately $11.7 billion. Additionally, Lynch conspired with others to conceal the fraudulent nature of the accounting at Autonomy and engaged in activity to further that goal, including violating internal controls of a publicly traded company, obstruction of justice, and money laundering.
5. The FBI's investigation established that from 2009 to 2011, Autonomy's founder and Chief Executive Officer Michael Lynch, Autonomy's Chief Financial Officer Sushovan Hussain, and Autonomy's Vice President of Finance Stephen Chamberlain (and others) carried out a fraudulent scheme to deceive purchasers and sellers of Autonomy securities - traded on the London stock exchange - and potential buyers of the company such as HP. The core of the fraud was to falsely portray the performance of Autonomy's business, its financial condition, and its prospects for growth. Using a variety of different fraudulent means, Lynch, Hussain, and Chamberlain made it appear that Autonomy's revenues were growing by 10-25% a year when, in reality, during each of the quarters for most of 2009-2011, Autonomy was not growing or was slowing …"
"42. On or about January 13, 2011, Dr Lynch spoke to Mr. Quattrone. Dr Lynch affirmed that '[h]e is OK with [Qatalyst] reaching out to buyers.' Dr Lynch said: 'He will be in the US for a month starting around March 11 and could pop over easily if there is something serious to discuss.' He also stated: 'He thinks HP is the best buyer … [and] Dell, Intel and Cisco are interesting."
"17. Between January and August 2011, LYNCH and others acting on behalf of Autonomy provided Autonomy's financial statements and documents reflecting Autonomy's results for the year ended 2009, the year ended 2010, the first half of 2011, and other periods to persons at, or acting on behalf of, HP in the course of HP's consideration of whether to buy Autonomy and, if so, for what price.
18. Among other information, HP relied on the accuracy and truthfulness of the statements and disclosures made in Autonomy's historically reported financial statements and other public statements including, but not limited to, Autonomy's claims about its financial performance, revenues, expenses, and products and its claim to be a 'pure software' company with high gross margins."
"Dr Lynch and Mr Apotheker exchanged views about the state of the software business. Dr Lynch spoke about Autonomy's strong financial performance and how proud he was of its recently announced 2010 results. Among other things, Dr Lynch talked about Autonomy's strong organic growth, its high margins, and its 'pure software' model. Mr. Apotheker came away with the impression that Autonomy was a well-run, very successful company, and was impressed with Dr Lynch's description of Autonomy's technology and his understanding of the software industry."
"15. On July 26, 2011, HP sent a detailed due diligence request list to Kanter. Autonomy rebuffed many of HP's requests for information, most notably for access to Autonomy's accountant's workpapers. To justify not providing certain information, Autonomy claimed that UK takeover laws required that any information shared with one potential bidder needed to be shared with all other bidders even if their interest was not genuine. In lieu of responding to certain due diligence requests, Lynch and Hussain repeatedly referred HP to Autonomy's publicly available financial statements."
"16. In targeting and pricing the second largest acquisition in its history, HP relied on the accuracy of Autonomy's publicly-filed financial statements, which were prepared by Hussain and Chamberlain and certified by Lynch. Manish Sarin, a senior HP acquisitions officer, and Andy Gersh, the acquisition consultant HP retained from KPMG, carefully reviewed Autonomy's 2010 year-end financial statement (which also reported 2009 revenues), and its QI 2011 and Q2 2011 quarterly financial statements, to evaluate Autonomy's revenues and profitability. They did so with a particular eye toward Autonomy's claims about its high gross margins or the profitability of its revenue segments.
17. During HP's due diligence of Autonomy, Lynch, Hussain, and Chamberlain lied to Manish Sarin and others at HP in at least three ways. First, the three passed off Autonomy's financial statements as accurate - when they were not - and as audited by Deloitte - when Autonomy had lied to Deloitte in order to obtain Deloitte's audit opinion. Autonomy's financial statements were a baseline for HP in both its valuation of what price HP would pay for Autonomy and its internal modelling for how profitable over time any acquisition of Autonomy would be for HP.
18. Second, in response to HP's request, Hussain and Chamberlain prepared a list of Autonomy's top 40 customers and contracts, and then removed more than $142 million in hardware sales and at least $19 million in other VAR-related revenue that was, in fact, uncollectible or otherwise problematic. This deception reinforced HP's (false) belief that it was buying a "pure software" company with a record of hitting market expectations and gross margins that drove the price HP was willing to pay to over $11 billion.
19. Third, Autonomy misled HP during its due diligence about the nature of Autonomy's revenues by concealing, in its due diligence disclosures, more than $105 million in loss-generating hardware sales in 2010 alone and another approximately $40 million in Q 1 2011 and Q2 2011."
"After that meeting, HP's full Board convened. The Board was provided valuation information prepared by HP management (based on Autonomy's falsified financial statements), which valued Autonomy at $9.5 billion on a standalone basis and $17.08 billion when 'synergies' – HP management's assessment of increased value that could be achieved through a combination of the two companies – were considered. The Board unanimously approved the acquisition."
"9. On or about August 18, 2011, in a press release announcing the acquisition, HP emphasized that 'Autonomy's recent operating and financial performance has been strong.' HP also stated that '[o]ver the last five years, Autonomy has grown its revenues at a compound annual growth rate of approximately 55 percent and adjusted operating profit at a rate of approximately 83 percent.' Among the acquisition's '[s]trategic and financial benefits,' HP said Autonomy would enhance HP's financial profile because 'Autonomy's strong growth and profit margin profile complement[ed] HP's efforts to improve its business mix by focusing on enterprise software and solutions. Autonomy [had] ... a consistent track record of double-digit revenue growth, with 87 percent gross margins and percent operating margins in calendar year 2010."
"As Autonomy's CEO and a director, LYNCH was responsible for certifying Autonomy's publicly filed financial statements. LYNCH was also responsible for the accuracy of statements made by him and others at Autonomy to market analysts, shareholders, and other persons in the investing public about the nature and composition of Autonomy's products, revenue, and expenses and its potential for growth."
"108. In connection with the acquisition, Dr Lynch and Mr Hussain signed letters committing to sell their shares in the contemplated HP acquisition. Each represented and warranted that 'any information provided by me for inclusion in the Press Announcement, the Offer Document, and any other announcement made or document issued in connection to the Offer, is and will be true and accurate in all respects and not misleading in any respect.' On August 18, 2011, HP incorporated false and misleading information provided by Dr Lynch and Mr Hussain in a press release it made to the public. Among other things, the release stated: 'Autonomy's strong growth and profit margin profile complements HP's efforts to improve its business mix by focusing on enterprise software and solutions. Autonomy has a consistent track record of double-digit revenue growth, with 87 percent gross margins and 43 percent operating margins in calendar year 2010. The Offer Documents also stated: 'Autonomy continues to grow strongly and profitably, reporting record revenue in Q2 2011 of $256 million. For the six months to 30 June 2011, Autonomy reported revenue of $476 million … For the full year ended 31 December 2010, Autonomy reported revenue of $870 million …"
"11. By using these measures, Autonomy was able to meet or exceed the all-important performance expectations set by the market analysts who covered Autonomy quarter after quarter. These measures kept Autonomy's stock price comparatively high. Analysts who studied Autonomy's financial performance for investing clients testified that, but for these accounting measures, Autonomy's stock price and overall value would have diminished substantially."
The conduct of which the Applicant is accused and the American charges to which it gives rise
"19. Beginning in or about January 2009 and continuing through in or about October 2011, defendants LYNCH and CHAMBERLAIN, together with others including former Chief Financial Officer Sushovan Hussain, engaged in a fraudulent scheme to deceive purchasers and sellers of Autonomy securities about the true performance of Autonomy's business, its financial performance and condition, the nature and composition of its products, revenue and expenses, and its prospects for growth.
20. The objectives of the scheme to defraud were, among other things, (a) to ensure that Autonomy reported that it had met or exceeded projected quarterly results for, among other things, revenue, gross margin, net income, and earnings per share, (b) to maintain and increase the defendants' positions within the company, and to enrich themselves and others through bonuses, salaries, and options, and (c) to artificially increase and maintain the share price of Autonomy securities to, among other things, make Autonomy attractive to potential purchasers.
21. In or about 2011, LYNCH and others met with representatives of HP about a potential acquisition of Autonomy by HP. At or about that time, LYNCH and others used Autonomy's false and misleading financial statements from 2009, 2010, and early 2011, and other false and misleading documents created by CHAMBERLAIN and others to make Autonomy more attractive to a potential purchaser like HP."
"26. Beginning in or about January of 2009, and continuing until in or about October 2011, in the Northern District of California and elsewhere, the defendants, and others, did knowingly conspire to devise and intend to devise a scheme and artifice to defraud as to a material matter and to obtain money and property by means of materially false and fraudulent pretenses, representations, and promises, and by concealment of material facts, and, for the purpose of executing such scheme and artifice and attempting to do so, did transmit, and cause to be transmitted, by means of wire communication in interstate and foreign commerce, certain writings, signs, signals, pictures, and sounds, in violation of Title 18, United States Code, Section 1343.
In violation of Title 18, United States Code, Section 1349."
"44. The government's evidence will establish that: Lynch and his co-conspirators agreed with each other to launch a scheme to defraud the investing public and, eventually, potential buyers of Autonomy beginning in early 2009. That scheme continued into 2011 and resulted in the sale of Autonomy to HP on the basis of false information and falsified accounting practices. In the course of completing the sale to HP, Lynch and his co-conspirators used wire communications such as email, video conferences, and other means, as described above. Each of those wire communications that entered the Northern District of California constituted a charge of wire fraud."
"47. The government's evidence will establish that: Lynch and his co-conspirators launched a scheme to defraud the investing public and, eventually, potential buyers of Autonomy beginning in early 2009. That scheme continued into 2011 and resulted in the sale of Autonomy to HP on the basis of false information and falsified accounting practices. In the course of completing the sale to HP, Lynch and his co-conspirators used wire communications such as email, video conferences, and other means. Each of those wire communications that entered the Northern District of California, as described above, constituted a separate charge of wire fraud."
"aa. On or about August 4, 2011, LYNCH, CHAMBERLAIN, and others caused Autonomy to provide to HP and its advisors false and misleading listings of Autonomy's top contracts and customers.
bb. On or about August 18, 2011, to induce the offer by HP and HP Vision [ie Bidco], LYNCH executed a letter irrevocably undertaking to accept the offer, agreeing to recommend the offer to others, and warranting that all information provided by him for inclusion in any document issued in connection with the offer was true and accurate in all respects and not misleading in any respect."
"50. The government's evidence will establish that: Lynch knew that Autonomy's false financial statements were used by HP to advertise the purchase of Autonomy to potential investors and purchasers of HP stock. That constituted the crime of Lynch causing HP to commit securities fraud."
"33. The objectives of the conspiracy were, among other things, to cover up, conceal, influence witnesses to, and otherwise obstruct investigations of the scheme to defraud set forth in Paragraphs 19 through 24 by, among other things, (a) falsifying, destroying, and stealing business records of HP, (b) altering, destroying, mutilating, and concealing records, documents, and objects with intent to impair their integrity and availability for use in official proceedings, (c) paying hush money and other benefits to influence, delay, and prevent the testimony of persons in official proceedings, (d) otherwise obstructing, influencing, and impeding official proceedings, and (e) laundering the proceeds of the Autonomy acquisition."
"l. On or about July 29, 2012, in an interview with counsel for HP, LYNCH made false and misleading statements to counsel for HP.
m. In or around January 2013, and thereafter, LYNCH refused to return books and records and other property belonging to HP.
n. In or about February 2013, a co-conspirator stole HP's confidential information by uploading thousands of documents from her company laptop to a USB device/pen drive, in violation of'HP's policies and internal controls. The co-conspirator subsequently provided some or all of the documents to LYNCH and Hussain."
"53. The government's evidence will establish that: Lynch and his co-conspirators agreed to cover up the fraud perpetrated by Autonomy on HP by engaging in obstruction of justice, violation of internal controls at HP, and money laundering.
54. This will be shown at trial by the testimony of numerous witnesses who witnessed actions designed to cover up the fraud in Autonomy's accounting. Additionally, it will be shown through witnesses and documents reflecting that Lynch and his co-conspirators refused to return documents that belonged to HP, stole additional documents that belonged to HP, and attempted to destroy evidence of the fraud at Autonomy, including by wiping a laptop that belonged to co-conspirator Chamberlain. Financial records will also show monetary transactions performed by Lynch and others involving the proceeds of the fraud perpetrated on HP."
The civil proceedings in England
The proceedings below
Grounds of appeal in summary
"(1) This section sets out whether a person's conduct constitutes an "extradition offence" for the purposes of this Part in a case where the person -
(a) is accused in a category 2 territory of an offence constituted by the conduct, or (b) has been convicted in that territory of an offence constituted by the conduct but not sentenced for it.
(2) The conduct constitutes an extradition offence in relation to the category 2 territory if the conditions in subsection (3), (4) or (5) are satisfied.
(3) The conditions in this subsection are that—
(a) the conduct occurs in the category 2 territory;
(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom;
(c) the conduct is so punishable under the law of the category 2 territory.
(4) The conditions in this subsection are that—
(a) the conduct occurs outside the category 2 territory;
(b) in corresponding circumstances equivalent conduct would constitute an extra-territorial offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment;
(c) the conduct is so punishable under the law of the category 2 territory.
(7A) References in this section to 'conduct' (except in the expression 'equivalent conduct') are to the conduct specified in the request for the person's extradition]
(8) The relevant part of the United Kingdom is the part of the United Kingdom in which -
(a) the extradition hearing took place, if the question of whether conduct constitutes an extradition offence is to be decided by the Secretary of State;
(b) proceedings in which it is necessary to decide that question are taking place, in any other case."
"A person's extradition to a category 2 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have -
(a) committed the extradition offence (where he is accused of its commission), or
(b) become unlawfully at large (where he is alleged to have been convicted of it)"
"(1) The extradition of a person ('D') to a category 2 territory is barred by reason of forum if the extradition would not be in the interests of justice.
(2) For the purposes of this section, the extradition would not be in the interests of justice if the judge –
(a) decides that a substantial measure of D's relevant activity was performed in the United Kingdom; and
(b) decides, having regard to the specified matters relating to the interests of justice (and only those matters), that the extradition should not take place.
(3) These are the specified matters relating to the interests of justice -
(a) the place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur;
(b) the interests of any victims of the extradition offence;
(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;
(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;
(e) any delay that might result from proceeding in one jurisdiction rather than another;
(f) the desirability and practicability of all prosecutions relating to the extradition offence taking place in one jurisdiction, having regard (in particular) to -
(i) the jurisdictions in which witnesses, co-defendants and other suspects are located, and
(ii) the practicability of the evidence of such persons being given in the United Kingdom or in jurisdictions outside the United Kingdom;
(g) D's connections with the United Kingdom.
(4) In deciding whether the extradition would not be in the interests of justice, the judge must have regard to the desirability of not requiring the disclosure of material which is subject to restrictions on disclosure in the category 2 territory concerned.
(5) If, on an application by a prosecutor, it appears to the judge that the prosecutor has considered the offences for which D could be prosecuted in the United Kingdom, or a part of the United Kingdom, in respect of the conduct constituting the extradition offence, the judge must make that prosecutor a party to the proceedings on the question of whether D's extradition is barred by reason of forum.
(6) In this section 'D's relevant activity' means activity which is material to the commission of the extradition offence and is alleged to have been performed by D."
"(1) If the judge is required to proceed under this section (by virtue of section 84, 85 or 86) he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c. 42).
(2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge.
(3) If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited."
The test on an extradition appeal
"(3) The conditions are that -
(a) the judge ought to have decided a question before him at the extradition hearing differently;
(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.
(4) The conditions are that -
(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;
(b) the issue or evidence would have resulted in the judge deciding a question before him at the extradition hearing differently;"
(c) if he had decided the question in that way, he would have been required to order the person's discharge."
"22. In our judgment, section 83A is clearly intended to provide a safeguard for requested persons, not distinctly to be found in any of the other bars to extradition or grounds for discharge, including section 87 and the wide scope of article 8 ECHR. The safeguard is not confined to British nationals, but it is to be borne in mind that the United Kingdom is one of those countries which is prepared to extradite its own nationals. Its underlying aim is to prevent extradition where the offences can be fairly and effectively tried here, and it is not in the interests of justice that the requested person should be extradited. But close attention has to be paid to the wording of the statute rather than to short summaries of its purpose or to general Parliamentary statements. The forum bar only arises if extradition would not be in the interests of justice; section 83A(1). The matters relevant to an evaluation of "the interests of justice" for these purposes are found in section 83A(2)(b). They do not leave to the court the task of some vague or broader evaluation of what is just. Nor is the bar a general provision requiring the court to form a view directly on which is the more suitable forum, let alone having regard to sentencing policy or the potential for prisoner transfer, save to the extent that one of the listed factors might in any particular case require consideration of it.
23. The approach of an appellate court to the evaluation of the section 83A factors also calls for some comment. Mr Caldwell favoured the approach taken in Celinski v Poland  EWHC 1274 at [18-24], where the Divisional Court concluded, in relation to article 8 cases, that the correct approach for an appellate court was to ask the single question whether or not the district judge made the wrong decision, and to allow the appeal only if the decision was wrong in the way described by Lord Neuberger in Re B (A Child) (FC)  UKSC 33. Findings of fact, especially if evidence had been heard should ordinarily be respected. The approach of Aikens LJ in Shaw v Government of the United States of America  EWHC 4654 (Admin), was preferred by Mr Fitzgerald. He held at  that the appellate court could interfere with the judge's "value judgement" if there were an error of statutory construction, or if he failed to have regard to a relevant factor or considered an irrelevant one, or if the overall judgment was irrational. Such an error would "invalidate" the judgment and the appellate court "would have to re-perform the statutory exercise and reach its own 'value judgment'". He continued:
'43. However, if this court concludes that the DJ has not erred in any one of those respects I have just identified, but simply took the view that it would give a different weight to a particular specified matter from that given to it by the judge below, I very much doubt that this court could therefore conclude that the appropriate judge ought to have decided the Forum Bar question before him in the extradition hearing differently: see section 104(3)(a) of the EA. It is possible, but in my judgement, in practice, very unlikely.'
24. This was very much the approach adopted in relation to article 8 cases by Aikens LJ and Edis J, in Belbin v Regional Court of Lille, France  EWHC 149 (Admin), which, while approved in Celinski, was overtaken by the latter's simpler approach.
25. The statutory appeal power in section 104(3) permits an appeal to be allowed only if the district judge ought to have decided a question before him differently and if, had he decided it as he ought to have done, he would have had to discharge the appellant. The words "ought to have decided a question differently" (our italics) give a clear indication of the degree of error which has to be shown. The appeal must focus on error: what the judge ought to have decided differently, so as to mean that the appeal should be allowed. Extradition appeals are not re-hearings of evidence or mere repeats of submissions as to how factors should be weighed; courts normally have to respect the findings of fact made by the district judge, especially if he has heard oral evidence. The true focus is not on establishing a judicial review type of error, as a key to opening up a decision so that the appellate court can undertake the whole evaluation afresh. This can lead to a misplaced focus on omissions from judgments or on points not expressly dealt with in order to invite the court to start afresh, an approach which risks detracting from the proper appellate function. That is not what Shaw or Belbin was aiming at. Both cases intended to place firm limits on the scope for re-argument at the appellate hearing, while recognising that the appellate court is not obliged to find a judicial review type error before it can say that the judge's decision was wrong, and the appeal should be allowed.
26. The true approach is more simply expressed by requiring the appellate court to decide whether the decision of the district judge was wrong. What was said in Celinski and Re B (A Child) are apposite, even if decided in the context of article 8. In effect, the test is the same here. The appellate court is entitled to stand back and say that a question ought to have been decided differently because the overall evaluation was wrong: crucial factors should have been weighed so significantly differently as to make the decision wrong, such that the appeal in consequence should be allowed."
"25. Each of the specified matters must be taken into account in the sense of being borne in mind, but the extent (if at all) to which they are relevant and the weight to be accorded to them will vary from case to case. There is no predetermined hierarchy whereby one or more factors will have greater significance than others. This is well established: see Dibden v Tribunal de Grande Instance de Lille, France  EWHC 3074 (Admin) at , referring to the corresponding provisions under Part 1 of the 2003 Act and Shaw v Government of the United States of America  EWHC 4654 (Admin) at ."
"59. Having set out his view of each of the individual factors, the judge concluded that, having regard to the statutory factors, he was satisfied that it was in the interests of justice for extradition to take place.
60. We have concluded that the judge's approach to some of the individual factors was mistaken. There were two powerful factors against extradition, namely the fact that most of the harm took place in this jurisdiction and the appellant's strong connection with the United Kingdom and absence of any significant connection with the United States. As we have explained, the judge carried over his finding that there was relevant conduct in the United States and did not consider separately where the majority of the harm took place. Moreover, the treatment of the appellant's connections with United Kingdom, the personal family details which we have outlined above, do not appear to have carried much weight below. Conversely, those factors which told in favour of extradition were of significantly less weight. In these circumstances this court is entitled to say that the judge's overall evaluation was wrong. We conclude that, having regard to the specified matters (and only those matters), the appellant's extradition is not in the interests of justice and the appeal should be allowed."
The grounds of appeal
"169. The matters relevant to an evaluation of 'the interests of justice' for these purposes are found in section 83A(2)(b). They do not leave to the court the task of some vague or broader evaluation of what is just. Nor is the bar a general provision requiring the court to form a view directly on which is the more suitable forum, let alone having regard to sentencing policy or the potential for prisoner transfer, save to the extent that one of the listed factors might in any particular case require consideration of it ...' (Love at §22).
170. All of the specified matters in section 83A(2)(b) strongly favour trial in the USA save for the Defendant's connections to the UK that are an important factor against extradition. However, the Defendant's connections to the UK do not affect his ability to be extradited.
171. The preponderance and collective weight of the specified matters in this case satisfies me that extradition to the USA is in the interests of justice."
Section 83A(3)(a) (loss/harm)
"119. I am satisfied that the financial loss to be wrought by this fraud was always intended to fall on a US-based entity. Those were the only companies targeted by the defendant and his US-based agent. Those companies were targeted before the incorporation of Bidco.
120. I am satisfied that the loss actually fell, on HP, a USA-based company. Its shareholders were predominantly (79%) US-based. It paid $11.7 billion for Autonomy based upon the alleged fraud perpetrated by the defendant and his co-conspirators. Once the fraud emerged a year later, HP was forced to issue an $8.8 billion write-down on the value of the asset it had acquired. It is the Government's case that on the most conservative estimate possible, it had been deceived by at least $1.7 billion.
121. I am satisfied that loss extends far beyond the money HP paid for Autonomy; it includes, defending lawsuits, assisting multi-jurisdictional investigations; etc all of which 'forced [HP] to divert resources away from business operations'. Moreover, 'The company has expended tremendous resources to shine a light on the truth and achieve justice', including by bringing civil proceedings. 'The amount of time, resources, and energy that the company devoted to the Autonomy investigation and all the aftermath, it is staggering...' ."
"75. Further, I reject the suggestion that loss was not caused in the [USA] as HP had chosen to purchase Autonomy through Bidco. HP is an American company. The money used to purchase Autonomy was HP's money whether it was held offshore (as part of it was) or within the USA (as part of it was). I have directly quoted from Mr Nicholl's evidence at paragraph 34 above. On his evidence HP settled the shareholders claims and HP resolved to seek redress for the alleged harm suffered by it. Bidco was clearly not the loser, harm is not to be assessed solely on the basis of where the money was paid.
76. I have no doubt that significant financial and reputational harm was caused, both directly and indirectly, within the USA to HP and its' shareholders."
"It is alleged that the Applicant and his co-defendants made false and misleading statements about Autonomy's earnings to the company's auditor Deloitte, to market analysts, and to regulators; made and caused fraudulent entries to Autonomy's books and records; issued materially false and misleading quarterly and annual reports; intimidated, pressured and paid off persons who raised complaints or openly criticised Autonomy's financial practices and performance. But for this conduct, Autonomy's share price and overall value would have diminished substantially."
"The overwhelming majority of the loss or harm resulting from the extradition offenses occurred in the United States, in significant part because Dr Lynch's and his co-conspirators' fraudulent statements ultimately induced HP, based in the United States and listed on the New York Stock Exchange, to affect the acquisition of Autonomy, at an overvalue measured in the billions of US dollars."
"125. I accept that the defendant's alleged fraudulent actions also caused 'harm' in the UK as the UK's financial reputation was tarnished by the defendant's fraudulent activity. I accept that the harm caused to the UK financial institutions is the 'significant and serious' harm as recognised by the SFO. However, similar reputational damage would have been caused to financial institutions within the USA. That harm is abstract and impossible to quantify. The harm financial losses caused to HP were huge and the reputational harm caused to HP in the USA significant and long lasting."
"Founded in 1939 in Palo Alto, California, HP was one of the world's best known technology companies. In 2011, when HP acquired Autonomy Corporation plc ('Autonomy'), it employed more than 349,000 men and women . . . . Hussain's scheme to defraud caused HP to incur significant financial losses, but his fraud also damaged the trust that HP's customers and shareholders had in the Company and its management. It has been a costly – and frankly, painful – process for the Company to work at restoring its brand and regaining the trust of its employees, shareholders, and the public. And the company has expended tremendous resources to shine a light on the truth and achieve justice.
Mr. Hussain's (and his co-conspirators') fraudulent scheme had a substantial impact on HP. Not only did the fraud cause HP to overpay for Autonomy, but it also visited on HP lasting reputational injury.
On November 20, 2012, after discovering serious accounting improprieties at Autonomy, HP wrote down $8.8 billion of the Autonomy asset. When HP announced the impairment, it disclosed that at least a majority of the impairment was attributable to Autonomy management's fraud. HP's shareholders were immediately harmed by the write down, with HP's shares falling 13% on the day of the announcement.
The public's reaction to the write-down announcement was swift and harsh. Without knowing any details about the fraud that Mr. Hussain and other former members of senior Autonomy management orchestrated (which, indeed, took years to uncover fully), the media lambasted HP and its management, calling HP the 'world's biggest deflater' and stating that its handling of the acquisition was 'the worst, most value-destroying deal in the history of corporate America.' At the time, the media also ridiculed HP for its explanation that Autonomy's accounting improprieties were to blame for the write-down. Even though Mr. Hussain's trial has now vindicated HP by showing that HP was, in fact, the victim of a sophisticated and carefully-plotted scheme to defraud, the damage has already been done. The fallout caused immediate harm to HP's reputation."
Section 83A(3)(b) (interests of any victims)
"128. I have found most of the financial and reputational loss that fell on HP and its predominately US based shareholders.
129. I agree that HP and its US investors have an interest in securing local criminal justice 'according to their own local laws and procedures', per Love at §29, and as quickly as possible. As the High Court held in Wyatt v USA  EWHC 2978 (Admin) at §15:
'...The interests of the victims of an alleged extradition offence include the convenience of giving evidence but are not limited to that ... the victims of a crime have an interest in the legal proceedings beyond the narrow compass of being a witness and giving evidence. They should, if they wish, be able to attend a trial. They should be in a position to have continuing contact with the prosecuting authorities. They are likely to wish a prosecution to take place in the jurisdiction where they suffered the harm relied upon, subject to their domestic legal order culminating, if there is a conviction, in an appropriate local sentence. This case involves corporate victims, although acting through individuals and owners... The judge cannot be faulted for having considered this to be a statutory factor which weighed in favour of extradition, nor for thinking it an important matter...'
130. I am satisfied that the fact that the civil proceedings had to be brought in this country as a consequence of a clause in the contract does not lessen the interests of the victims in having the criminal charges tried in their jurisdiction. I agree that their interests will not be satisfied by the outcome of a civil claim that the Defendant has vigorously defended and the outcome of which he is likely to appeal.
131. I agree that their interests are not satisfied by the conviction of Mr Hussain as it is alleged that the defendant was the Chief Executive Officer of Autonomy and leader of the conspiracy who, after the purchase, "conduct a smear campaign [against HP] to undermine the truth". There is 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.
132. The interests of the victims strongly favour trial in the USA."
"41. The judge dealt with this factor by saying that, although it would be more convenient for Cairn's witnesses to give evidence in the United Kingdom, there was no evidence that travelling to the United States to give evidence in the Johnson trial was causing significant problems. He appears, therefore, to have treated this as a factor telling marginally against extradition.
42. Convenience of witnesses is one element to be considered in determining where the interests of any victims lie. However, that is only a relevant element when the question is whether the trial should take place in the requesting state or in this country. When, as is this case, the practical reality is that no investigation or prosecution is likely in this jurisdiction, the relative convenience for witnesses can be of no more than hypothetical interest. It carries no real weight.
43. As indicated in Love's case  1 WLR 2889, para 29, victims of crime may have an interest in having the case tried according to their own local laws and procedures, and in any sentence being imposed following conviction reflecting the values of their own legal system, 'But their interest in having a trial at all is the more important'. Although that was said in the context of a case where the risk was that there might be no trial in the United States in the event of extradition because the requested person might commit suicide (see further at para 33), the point is of more general application. If the choice is between a trial in one jurisdiction and no trial in the other jurisdiction, the interests of victims are likely to favour trial in the jurisdiction where a trial will take place.
44. In the present case the only jurisdiction in which a trial is likely to take place is the United States. But there are two factors which affect the victim's interests in this case. First, as we were informed, Cairn has reached a settlement with HSBC as a result of which HSBC has paid to Cairn the sum of US $8m. It appears, therefore, that Cairn has been properly compensated for the loss which it has suffered as a result of any wrongful conduct on the part of the appellant. That does not affect the wider damage done to the integrity of the currency exchange market. Secondly, Mr Johnson has been prosecuted to conviction in New York. To the extent that an identifiable victim may take comfort from the prosecution of a wrongdoer, that has been possible as a result of the earlier prosecution.
45. In these circumstances the interests of the victim tend towards a trial in the United States rather than no trial at all, but not with such weight as would attach if the proposed trial in the United States were the only mechanism of redress available."
"29. The judge gave brief and erroneous treatment to this important factor. First, the judge failed to apply the approach in Scott at -, that the existence of another 'mechanism of redress' necessarily lessens the interests of victims in having a criminal trial in the requesting state. Here, there has been a lengthy and detailed civil trial of the issues in this jurisdiction, and the allegations made against the Appellant in the civil case are substantially the same as those comprising the allegations in counts 1-16 of the extradition request, but the judge failed to treat that as a material factor against extradition. Rather, at - … he held that the victims' interests would not be satisfied by the civil trial. In taking this stance, the judge directly conflicted with the High Court's treatment of the same issue in Scott …, but gave no reasons as to how he distinguished Scott to reach a contrary conclusion."
Section 83A(3)(c) (prosecutor's belief)
"133. The SFO is a designated prosecutor for the purposes of s 83A (SI 2013/2388). The SFO investigated this matter in 2013-2015 and ceded its investigation to the USA based on the evidence and information then available.
134. Ronan Duff, a solicitor with the SFO has issued a detailed and reasoned statement of belief that the UK is not the most appropriate forum for this prosecution. He stated, inter alia, that:
i) In March 2014 the SFO decided that there was insufficient evidence to continue their investigation (the equivalent of the threshold test was applied).
ii) Before announcing its decision it communicated it to the US investigators. They then shared information that they had obtained from a number of co-operating witnesses in the US. The SFO considered that the disclosures were primarily of evidence to the VAR issue and did not materially change the picture in relation to the hardware deals. It also noted that the witness disclosures would not have constituted admissible evidence for the English courts. Further enquiries followed. The SFO then carefully applied the guidance on concurrent jurisdictions. It decided in December 2014 to cede jurisdiction to the US on the VAR issue and to close its investigation into the hardware deals. Its reasons for doing so are set out in paragraph 15 of Mr Duff's statement. I place great weight on the statement that factors that led to the ceding included:
a) "The extent to which any prosecution would need to rely on the evidence of the US cooperating witnesses, their testimony providing key evidence of dishonesty which was otherwise difficult to prove
b) The likely difficulties in securing the evidence of the US cooperating witnesses in admissible form for the purposes of prosecution before the English courts
c) The anticipated difficulties in securing all relevant unused material ……for the purposes of discharging the SFO's disclosure duties…
d) The delay which the above difficulties-assuming they were surmountable-would cause to the charging and trial timetable for any SFO prosecution.
iii) Mr Duff conducted his review approaching the question of jurisdiction afresh. He concluded that England and Wales is not the most appropriate jurisdiction in which to prosecute the Defendant. He accepted that a prosecution in this jurisdiction was not impossible but his belief is that the USA is the more appropriate jurisdiction. He formed that belief because:
1) He placed significant weight on all the prosecutions taking place in one jurisdiction.
2) The alleged conduct resulted in harm in both jurisdictions, but with identifiable victims being predominately in the USA.
3) Complications in securing admissible evidence from the US based witnesses. "The specific complication arising …from the Requesting State's reliance on co-operating witnesses". He "can state on the basis of US Witness Disclosures, that the evidence of the cooperating witnesses in question is highly probative of the question whether the arrangements….were dishonest. Were such evidence not available to an English court, any prosecution of this aspect of the case …would…be considerably weakened, if not wholly undermined".
4) Very significant delay would result from a prosecution in this jurisdiction. The US prosecutors are ready to proceed.
135. I agree that the Act was 'not intended to invite a review of the prosecutor's belief as to the more appropriate jurisdiction on grounds short of irrationality...' (Dibden at §35; Shaw at §§51, 59). Mr Duff's belief is not irrational, it is considered and reasonable. The Administrative Court gave the following guidance at paragraphs 18-20 of Wyatt v USA:
'...It is almost inevitable that a prosecutor will take into account
the statutory factors found in section 83A(3) in forming a belief. It would be very odd not to do so. Factors such as the interests of the victims, the availability of evidence, the location of harm, delay, the defendant's connections with the United Kingdom and the prospect of multiple prosecutions could be influential in forming a belief. The prosecutor is not, however, limited by the statutory factors in the same way that the judge is. He may take anything that rationally bears on the question into account. Obvious examples would include the dynamics of a trial and the practical implications of having to investigate alleged offences and prosecute them here, including resource implications. There may also be differences between the legal regimes in the requesting state and England and Wales which could have an impact on admissibility of evidence or raise other legal issues...Thus, the judge is required to have regard to the prosecutor's belief; and that may be based largely on the statutory factors or may extend well beyond them. Yet the prosecutor's belief is an independent factor that weighs in the balance. It may be, for example, that the judge's provisional view having regard to all factors except the prosecutor's belief would be not to favour extradition. Then, taking into account the prosecutor's belief the balance may tip the other way. Whether or not that is the case, the belief must weigh in the balance...'
136. There is nothing irrational about Mr Duff's belief. His belief strongly favours trial extradition."
"In my judgment, section 19B(3)(c) was not intended to invite a review of the prosecutor's belief as to the more appropriate jurisdiction on grounds short of irrationality. It was certainly not intended to invite a debate with demands for documents justifying the belief."
Section 83A(3)(d) (whether evidence could be made available in the UK)
'… entitled … to recognise that adducing live evidence in the UK would be less straightforward than in the US, to note the fact that the documentary evidence was extensive and to conclude that the process of obtaining the evidence was likely to be less certain than in the US ...'
"128. Relatedly, the prosecution against Dr. Lynch will include testimony from cooperating witnesses, each of whom already is or will at the time of trial be located in the United States. These are witnesses who can give first hand evidence of inter alia dishonesty on the part of Dr. Lynch and his conspirators. As noted above, for example, Mr. Egan, Autonomy's Head of Sales in the United States, has entered into a deferred-prosecution agreement with my Office, and will testify at the trial against Dr Lynch. Another witness, Antonia Anderson, a former Deloitte manager and Autonomy employee, entered into an agreement to cooperate with my Office whereby she agreed to "testify completely and truthfully before any grand jury and at any hearing or trial at which she is requested to testify by this Office." Deloitte and certain of its partners entered into an agreement to cooperate with my Office and appear in person at any trial or other proceeding in the United States as requested by the Office and testify truthfully and completely. As also stated above, the agreements that Mr. Egan and other witnesses have entered into with the United States Attorney's Office require their cooperation with the United States Attorney's Office and the Federal Bureau of Investigation. Mr. Egan would not be compellable by, for example, the Serious Fraud Office ("SFO"). The agreement with Mr. Egan does not expressly provide for Mr. Egan to testify in foreign proceedings outside the United States, nor when the parties entered into the agreement did the Government anticipate it would require Mr. Egan to appear in a criminal trial in a foreign country. In my experience, I am not aware of situations where the Government has required a defendant, as part of his cooperation agreement such as this, to provide foreign evidence in a tribunal that does not apply the same rules on, for example, privilege and self-incrimination."
"I have already noted my concerns about Mr Nicholl's lack of independence. I find his assessment of the importance of evidence given in a civil trial to which the Government was not a party, to be unpersuasive."
"70. Mr Nicholls is a solicitor acting for the defendant in both the civil and extradition proceedings where he has an interest in the litigation outcome. I have concerns about whether it is appropriate for him to be a witness on his client's behalf. My concerns deepen as there has been a clear blurring of the lines between factual statements and advocacy …
71. My concerns are deepened by Mr Nicholl's approach on receipt of the Government's evidence …"
"The effect of sections 27(2) and (3) of the Extradition Act 2003 is that an appeal may be allowed only if, in this court's judgment, the District Judge ought to have decided a question before her differently. This places the original issues very nearly at large before us, but with the obvious restrictions, first, that this court must consider the District Judge's reasons with great care in order to decide whether it differs from her and, secondly, that her fact-findings, at least where she has heard evidence, should ordinarily be respected in their entirety."
"145. Mr Morvillo posited that novel and untried procedures are available to secure immunity for the witnesses to obtain immunity from prosecution in the US for evidence given in the UK. Procedures exist to allow the SFO to apply for the witnesses to be given immunity from prosecution in the UK. Neither Mr Leach nor Mr Morvillo were aware of such procedures being used previously.
146. The reality of the position is that it is unclear whether the witnesses would cooperate and if not whether they could be compelled by US prosecutors to give evidence in the UK. The procedures to obtain their cooperation (mutual legal assistance, the use of 1782 and 6003 [US legal provisions] process in the US and the use of s71 of SOCPA in the UK), will undoubtedly lead to significant delay.
147. I agree with Mr Duff when he stated that '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 is far from clear that the entire corpus of US evidence would be transferable to the UK."
Section 83A(3)(e) (delay resulting from trial in one jurisdiction rather than another)
"150. Mr Morvillo was of the opinion that any trial in the USA is unlikely to proceed until the summer or fall of 2023.
151. The DoJ investigation has been underway for over eight years. It is wide-ranging and complex, and involves predominantly US-based witnesses. Evidence has been gathered in a way that ensures compliance with rules of evidence that are specific to US court proceedings. An indictment has been issued. The US is trial ready.
152. The SFO's involvement in the case ceased in 2015. Proceedings in the UK would require UK investigators and prosecutors to acquaint themselves with, investigate, and prepare this matter for trial in order to arrive at the position in which the US prosecutor presently stands. This would involve consideration of a huge volume of material. Including, for example, the transcripts and nuances of Mr Hussain's 37-witness trial. Disclosure alone in that trial involved the Defendant's solicitors employing 12-14 lawyers to work exclusively on it for 12 months. Disclosure in the criminal trial in the USA runs to at least tens of millions of documents, documents that the SFO are likely to be required to consider if it is to meet its disclosure obligations. Preparing for trial in this jurisdiction would inevitably be an 'enormously' lengthy process which 'would severely undermine the efficiency of the proceedings'. I agree with Mr Duff's assessment 'Significant delay' would be 'inevitable' if the trial were conducted in this jurisdiction. In addition the SFO would be required to consider the material provided in the civil proceedings in this jurisdiction.
153. I am satisfied that the SFO would take considerable time before it was able to make a decision to charge, further substantial delays would follow before a trial could commence in this jurisdiction. I am satisfied that any trial in this jurisdiction would result in considerable additional delay.
154. This factor strongly favours trial in the USA."
Section 83A(3)(f) (desirability and practicability of all prosecutions taking place in one jurisdiction, etc)
'… the advantage that flows from having all prosecutions in one jurisdiction is not limited to the possibility of trying all co-defendants at the same time. There are also 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'.
"164. It is apparent from Mr Morvillo's evidence that the Judge has the power to grant defence witnesses immunity if a defendant can satisfy the court that a refusal to do so would result in distorted fact finding. Mr Hussain was unable to meet the test, as a consequence the application was refused.
165. I am satisfied that the Defendant is able to make an application to the court for defence witness immunity which will be granted if he can satisfy the test. I do not accept that any injustice follows from this procedure or that any inequality of arms results."
Section 83A(3)(g) (connection with the UK)
"(a) The defendant is a UK national.
(b) He is married. His wife was a citizen of the US but is now solely a British citizen.
(c) He has two daughters now aged 15 and 17 years.
(d) He owns property in the UK. He does not own property in the USA.
(e) He is a fellow of the Royal Society.
(f) He is a fellow of the Royal Academy of Engineering.
(g) He has been an advisor to a Prime Minister.
(h) He is the Deputy Lieutenant of Suffolk.
(i) He has been a board member at the Crick Institute, a non-executive director of the BBC, a trustee at Kew and the National Endowment for Science.
(j) He was awarded an OBE.
(k) He receives treatment in the UK for his health issues.
(l) He is a consultant to a company called Invoke."
Our conclusion on forum
(ii) Dual criminality
"61. Mr Leach states that 'Dr Lynch committed multiple overt acts in furtherance of the alleged conspiracy while in the United States'. He sets out meetings that took place in the USA, in furtherance of the conspiracy, on:
• 1 April 2011.
• 8 April 2011.
• 12 April 2011.
62. He also detailed numerous acts by Mr Hussain in the United States in furtherance of the conspiracy. He stated that 'Dr Lynch negotiated with HP representatives in the United States'.
63. On Mr Leach's most conservative estimate, HP had been deceived by at least $1.7 billion. The US District Court has recognised that the loss was 'enormous'. Moreover at Mr Hussain's sentencing hearing General Counsel for HP stated that the purchase price was 'not merely theoretical dollars paid out by some faceless corporation. It's real money in every respect and it deprived the company of the ability to pursue other opportunities ... [the defendant] robbed HP of those opportunities, and we will never know the full extent of that loss ...' .
64. He described how the financial loss extended far beyond the money it paid for Autonomy; it includes the costs of the purchase of Autonomy, and after the fraud was uncovered, defending lawsuits, assisting multi-jurisdictional investigations; etc all of which 'forced [HP] to divert resources away from business operations'. Moreover, 'The company has expended tremendous resources to shine a light on the truth and achieve justice', including by bringing civil proceedings [Leach §115]. 'The amount of time, resources, and energy that the company devoted to the Autonomy investigation and all the aftermath, it is staggering ...'
65. Mr Leach described how the intended loss was aimed at HP's predominantly US-based investors.
66. Mr Leach described how the 'harm' caused to HP by the fraud in counts 1-16 was significant. He provided the following statement from HP's General Counsel at Mr Hussain's sentencing hearing: It 'has inflicted immeasurable harm to us, to our reputation, and to our brand. Founded almost 80 years ago, HP is an iconic institution in Silicon Valley and we spent decades earning the trust of our [349,000] employees and our customers and our investors … The aftermath of the acquisition and the disclosure of the fraud, public reaction to HP's write-down of Autonomy was swift and harsh. In fact, to protect himself ... Dr Lynch, began a smear campaign against us in an effort to undermine the truth ...The Autonomy fraud has cast a long shadow on our company ..."
"82. Transposing this conduct to England and Wales: (a) a conspiracy planned and perpetrated entirely abroad to defraud (transposed) English victims constitutes an offence under English law. (b) As regards fraud by false representation contrary to ss. 1 and 2 of the Fraud Act 2006, multiple acts of misrepresentation occurred in the (transposed) UK by the defendant, his co-accused and agents, as well as the intention to expose to loss (transposed) UK companies. (c) As regards false accounting contrary to s.17 of the Theft Act 1968, it is alleged that the defendant and his co-accused and agents made use in the (transposed) UK of Autonomy's financial statements which the defendant knew were materially false, misleading or deceptive. (d) Both of these statutory offences are 'Group A' offences pursuant to s.1(2) CJA 1993 and s.2(3) provides that an English court has jurisdiction to try a Group A offence where any one of the constituent elements of the offence occurs in England and Wales. In respect of statutory fraud, this will include, if the fraud involved an intention to cause a loss or to expose another to a risk of loss and the loss occurred, that occurrence (s.2(1A)(b)).
83. Mr Bailin submitted in respect of count 17 that there is no evidence that the conduct described in paragraph 34 of the superseding indictment would amount to an offence at all.
84. However, I am satisfied that the paragraph cannot be considered in isolation but needs to be put in the context of the two preceding paragraphs. I am satisfied that paragraphs 32 and 33 set out the nature of the offending and its' objectives. Paragraph 34 provides details of the acts that make up the offending and cannot be properly understood in isolation.
85. The Government's allegation in count 17 is that the defendant did and caused to be done various acts tending and intended to conceal his unlawful conduct (the antecedent fraud) and this concerned efforts to derail and divert US-based investigations and potential proceedings. Had such acts been done with the intention of obstructing an investigation by a duly appointed body in the United Kingdom the defendant would be guilty of the offence of perverting (and of conspiring to pervert) the course of justice. English common law does not require proceedings to be pending or to have commenced for a defendant to be guilty of perverting: Sharpe and Stringer (1938) 26 Cr App R 122; Wilde  Crim LR 116; R v Rafique  QB 843; R v T  EWCA Crim 729. Nor does it require that the defendant was aware of the particular investigation in question or its scope: USA v Dempsey (No 1)  4 WLR 110 at §§33-34. Perverting by interfering with a potential witness can be committed where there is no evidence of any bribe, threat, undue pressure or other unlawful means: R v Toney  1 WLR 364 at p368B."
(iii) Passage of time
"'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair. Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them."
"… the test of oppressiveness and of the likelihood of injustice would not easily be satisfied; that oppressiveness was more than mere hardship; that whether the passage of time had made it unjust to extradite the fugitive depended upon whether a fair trial would be impossible, for which purpose regard was to be had to the domestic safeguards in the requesting state; that Trinidad and Tobago was to be assumed to have the necessary safeguards against an unjust trial; and that, accordingly, the extradition of the fugitives could not be regarded as unjust or oppressive."
(iv) Article 3
"… substantial grounds for believing that the requested person would face a real risk of being subjected to torture or inhuman or degrading treatment in the receiving country. The test is a stringent one. It is not easy to satisfy."
"Strong evidence is required to establish a violation of Article 3 by reference to prison conditions when the requesting state is a well-established democratic country."
"(e) Designation of the defendant's prison-level will be tailored to reflect his security and program needs, any safety concerns, and medical needs. All that can be said with certainty is that, in view of his medical complaints the defendant will most likely be designated as a 'Care Level Three' inmate (i.e. 'outpatients who have complex, and usually chronic, medical or mental health conditions and who require frequent clinical contacts to maintain control or stability of their condition, or to prevent hospitalization or complications'), he will be monitored for his chronic medical conditions.
(f) The BOP can provide appropriate care to him. BOP institutions classified as Level-3 institutions 'manage inmates with potentially unstable medical problems."
"187. I was unimpressed by the sources of Mr Sickler's information which are unnamed, generalized and presented in a misleading way. I have significant doubts that he is an expert. His first report was prepared in a casual way which overlooked the central issue, he confidently identified prisons in that report where the defendant would serve that sentence, an opinion that he completely changed in his second report. He accepted that at least one statement that he made in Mr Hussain's sentencing report was incorrect (others were contested by Mr Ligwag [the Government's witness]). He demonstrated hostility to the criminal justice system in the USA when he said that he was 'skeptical of the courts being prepared to listen to prisoner's complaints'. At one point he suggested that prison staff regard prisoners as 'sub-human'.
188. I am satisfied that Mr Sickler was an unreliable partisan witness who has exaggerated his evidence that he has presented, on occasions in a misleading way."
"The USA is a well-established democratic country. Dr Pelton's evidence is entirely credible and leaves me in no doubt that the Defendant will serve any sentence in a level 3 prison whose purpose is to care for the chronically ill."
"190. The Defendant's evidence, unsupported by independent non-governmental reports or adverse judicial findings, does not lead me to conclude that there are substantial grounds for believing that the Defendant faces a real risk of him being subjected to Article 3 non-compliant treatment."
(v) Abuse of process
"192. The defendant's submission is found on an assertion that the Request contains material misrepresentations and omissions of facts relevant to the substance of the extradition request. It relies on the 'wholesale avoidance of the [on-going] civil trial' which 'has resulted in the Government advancing a case in the extradition proceedings which is inconsistent with the case advanced by HP and the evidence before the High Court'.
193. He specifically complains of:
i) Material misrepresentations and omission as to the location and nature of conduct relevant to this Court's assessment of the forum bar".
ii) Material misrepresentations as to the location and nature of loss and harm relevant to the forum bar.
iii) The existence of the SFO's concurrent investigation.
iv) The Government's claim for jurisdiction. The Defendant sought to rely on the evidence of a retired US District Judge to evidence this challenge. This issue had been aired before Judge Breyer during the Hussain trial, Judge Breyer rejected both challenges and ruled that the charges were not time barred and that the court had jurisdiction. Mr Hussein appealed to the US Court of Appeal for the 9th Circuit which upheld his rulings. A second report by Judge Scheindlin sought to challenge those rulings suggesting that they needed to be resolved in the Supreme Court (Mr Hussain has not renewed his appeal). I was satisfied that I was being invited to rule upon a clear dispute regarding the interpretation of US law both in relation to both of these issues and the suggestion that count 17 is duplicitous."