High Court Judges hear arguments for and against extradition of McDaid to the United States of America
By John Brace (Editor)
Leonora Brace (Co-Editor)
Unfortunately as I was only sent the email to join the video hearing at 10.20am, I missed the first few minutes at the start as the hearing started at 10.30am and joined around 10.35am.
Helen Malcolm QC and Joel Smith were for the United States Government (although instructed by the UK’s Crown Prosecution Service Extradition Unit) and Edward Fitzgerald QC and David Williams instructed by Alsters Kelly Solicitors were for Mr Robert McDaid. The case was United States Government vs McDaid (CO/1024/2019).
The decision arising from this hearing can be found at  EWHC 1527 (Admin).
This was a High Courts of Justice (Queens Bench – Administrative Court) judicial review of an earlier extradition hearing decision in a Magistrates Court decided by a District Judge to refuse extradition of Mr Robert McDaid (from the United Kingdom of Great Britain and Northern Ireland) to the United States of America. Due to the coronavirus pandemic it was held virtually as a video hearing using Skype for Business on Thursday 30th April 2020.
The two High Court judges for this video hearing were Holyrode LJ (Lord Justice Holyrode) and William Davies J (Mr Justice William Davies).
Helen Malcolm QC was talking about whether the District Judge had made the wrong decision, she referred to paragraph 21 of the Love case  EWHC 172 (Admin) and the Scott  EWHC 2021 (Admin) reference at page 168 of 200 of the authorities bundle.
Holyrode LJ agreed.
Helen Malcolm QC continued with the test the District Judge..
She was interrupted by Holyrode LJ who required Edward Fitzgerald QC to mute his microphone. Edward Fitzgerald QC replied. Holyrode LJ asked Edward Fitzgerald QC to please mute as Edward Fitzgerald QC was the only one Holyrode LJ could see, but apologies if Holyrode LJ was thinking it was at Edward Fitzgerald QC’s end.
Helen Malcolm QC argued that  EWHC 172 (Admin) (paragraph 22) supported their appeal on the basis that the District Judge made the wrong decision in refusing extradition to the United States of America, but also quoted in Love  EWHC 172 (Admin) was Scott  EWHC 2021 (Admin) which was at page 137 of 200 of the authorities bundle.
Holyrode LJ asked for a paragraph number?
Helen Malcolm QC asked for just a moment and stated it was somewhere around 20 something. She apologised as she had only written down the page number and only had one screen but there was an extra thing to attach it to the computer. Paragraph 23 of Scott  EWHC 2021 (Admin) began at the bottom of the internal pagination 127, but 169 of 200.
Holyrode LJ thanked her.
Helen Malcolm QC continued that in her opinion the District Judge had misunderstood the test and explained her reasons why.
Her view was that the balancing exercise had been flawed and that the District Judge had applied the wrong test. There was an apology from Helen Malcolm QC that a letter had been not disclosed until that morning. Although evidence could be shared using the Mutual Legal Assistance Treaty, Mr McDaid’s computer hadn’t been seized on arrest and it was not clear how the Americans had obtained the telephone conversation.
Leaving aside the issue of voice identification, there was the issue whether the telephone evidence was admissible under UK rules.
The call made to an anti-terrorist centre in Virginia might require the foreign state to disclose matters that would cause difficulties or discomfort as the issue of public interest immunity was complicated.
It would be difficult for an English Court to allow a video link to a person in America, but the American victim would be able to go to the trial if it was held in America.
Helen Malcolm QC was asked by Holyrode LJ why Mr Robert McDaid couldn’t be tried in the UK for perverting the course of justice? She answered that there would need to be evidence of perverting the course of justice as opposed to misuse of police time or misuse of telecommunications but that she was not aware of any case law.
Helen Malcolm QC was asked about the evidence of a 5-7 month delay before a trial in the United States and why the District Judge had converted this to a period of several years? Helen Malcolm QC quoted from her skeleton argument. Asked again about the delay she stated that she was struggling to get a copy of her skeleton back. However in answer to another question about delay she was perplexed.
She started reading out an email, then the hearing was stopped as recording of the hearing had stopped.
Continuing after recording of the hearing resumed, Helen Cameron QC quoted from an email that there was a right to trial in America within 70 days, but that if there was any motion that this reset the clock. Helen Cameron QC stated that it was trial ready in America, but in this country it would cost more as the domestic prosecutor would have to start from scratch.
Helen Cameron QC stated that she was not sure if  EWHC 4654 had been decided at the time. Mr Justice William Davis pointed out that as it had been decided in 2014 then that wasn’t right.
There was a ten minute break until 11.30 am to see if Edward Fitzgerald QC could be made visible to the video hearing.
After the short ten minute break, Helen Cameron QC made a further point and brought up  EWCA Crim 1033 in relation to making false allegations. She continued that in this country [UK] it was an offence of perverting the course of justice, but that the Criminal Law Act 1967 meant that a number of conditions had to be satisfied if it was to constitute an offence, so it may be possible to prosecute in this country but not easy.
Edward Fitzgerald QC stated that this hadn’t been raised in the skeleton argument, which had taken many paragraphs of skeleton over alleged errors in (d), (e) and (f) and had been raised the first time that morning.
In paragraph 81, the District Judge had stated that it was barred by reason of forum and not in the interests of justice, there were parallels with the Love case ( EWHC 172 (Admin)), the next point was that evidence could be made available. Edward Fitgerald QC referred to an email sent by the USA as to whether this jurisdiction would prosecute and if so then evidence could be made available to the UK. The question of no jurisdiction had not been raised and that alleged error had been raised for the first time that morning.
The point about a possible trial delay of several years had been made in oral evidence as problems arose if competency was an issue which needed medical evaluation. Such problems might arise needing multiple assessments on the question of competency and that might take up to a year. The District Judge can have been taken to have heard the oral evidence, but without some accurate note agreed and certified it was wrong to suggest the District Judge had misremembered the taking years point and a disservice to the District Judge.
There was a real possibility that problems of competency could take years.
The main accomplice and instigator had been dealt with by the way of a 2 year sentence and then it had been asked if the matter be dealt with in England after the co defendant was sentenced who was the main mover and had animus, the email put pay to the suggestion that the District Judge had got it wrong about desirability, as to costs there was a reference at 79D but it could not be a compelling factor. There had been discussions of a plea being offered in this country [UK], but on the final question Edward Fitzgerald QC stated the decision was entirely right on desirability and availability.
Edward Fitzgerald QC wanted to set out some points made in the chronology in more detail. Mr Robert McDaid had diagnoses of depression and autism which were set out in the chronology and he already had these problems. Mr Robert McDaid was nineteen years old when there was the incident on the 18th February, when the person was shot when having agreed to leave the house he didn’t. Had the person left he wouldn’t have been shot at all. There were references to going to the accident and emergency department and antidepressants. A report by a doctor at page 400 stated depression, mild autism and a depressive disorder. The diagnosis of autism was confirmed by a different doctor at page 251 as well as a well established history of depressive illness and autism which drew parallels with the Lauri Love case ( EWHC 172 (Admin)).
The state proceedings had been discontinued and the federal proceedings had started on the 11th January 2017. In December 2017 there was the first exchange about the possibility of a plea and its potential acceptance. The CPS [Crown Prosecution Service] responded to the US authorities who decided not to withdraw the request but did speak to the US Attorney.
It was inappropriate and undesirable and it had to be seen in the context of the tragedy in Mr Robert McDaid’s life as Mr Robert McDaid had discovered the body of his father. After Zachary Less had been given a sentence of 24 months, the US contacted the CPS and attached the US DOJ [United States Department of Justice] certificate of judgement of conviction [of Zachary Less]. In light of that guilty plea the US wrote to the CPS and wanted to know whether they were interested in prosecuting Mr Robert McDaid and if not possible to pursue extradition.
A statement had been provided by the prosecution the previous evening. In the statement, there had been no awareness of the mental health problems and there didn’t appear to be a full history placed in reference to the test. The Criminal Law Act 1967 was in favour of the UK being the appropriate forum and there could be a prosecution for an offence under the Malicious Communications Act 1988, the statement finished by stating that the US appeared to be more appropriate, however this was done without the full facts and history of the US inviting the UK to deal with it.
The medical evidence at the extradition hearing of depression and autism had been unchallenged and the oral evidence at that hearing was that in practice a US prosecution could take years because of the psychiatric assessment. There was no transcript of the hearing, therefore Edward Fitzgerald QC felt it was wrong for Helen Malcolm QC to suggest that the District Judge had been wrong and it had been a proper matter for the District Judge to take into account of delays for psychiatric evidence and delays for possible appeal proceedings.
Even now on the 9th April 2020 the US authorities had stated that if the CPS were willing, if Mr Robert McDaid pled guilty and accepted responsibility in the UK then the charges would be dismissed in the US. The appeal did not raise questions where the District Judge got it wrong or in the overall judgement.
In the skeleton argument, he said that the District Judge clearly analysed it by reference to the decision in the Love case  EWHC 172 (Admin). The connections to the Love case were the autism spectrum disorder diagnosis, Mr Robert McDaid’s close relationship with his mother and dependence on social support. Also the diagnosis of depression had been unchallenged.
Edward Fitzgerald QC thought that the District Judge plainly had the correct test in mind when referring to the factors and had shown regard for those for and those against. The Codefendant had already been tried, so the reality of the situation had been looked at. Mr Robert McDaid’s connection to the UK was a weighty factor as indeed had the High Court found in the Love case  EWHC 172 (Admin).
Mr Robert McDaid was a young adult with vulnerabilities and the connection to his family involved stability and care. Against that background it was not in the interests of justice, especially as the prosecuting evidence could be made available in the UK and the main offender had already been dealt with by a 2 year sentence.
Separating Mr Robert McDaid from his mother and social support was known to have a devastating effect.
The first Judge had thought this appeal was unarguable and there had been a long delay brought about by the appeal.
The prosecution in the United States had invited on two occasions for it to be dealt with here [UK].
Edward Fitzgerald QC stated that Helen Malcolm QC was at best quibbling and raising new points.
Without an agreed record about what had been said, it couldn’t be said without clear evidence that there were alleged errors related to crucial factors or the overall conclusion. Edward Fitzgerald QC took Holyrode LJ and William Davies J to the key passage in the Lauri Love case  EWHC 172 (Admin) at tab 4.
Holyrode LJ pointed out that he didn’t have any tabs.
Edward Fitzgerald QC instead pointed out page 136 and there was a reference to the test, did Holyrode LJ have page 136?
Holyrode LJ stated it was in the bundle but he wasn’t sure which paragraph.
Edward Fitzgerald QC answered “paragraph 25” which Holyrode LJ stated was on page 138.
Edward Fitzgerald QC said that there was different pagination, but that they had to decide whether the decision of the District Judge was wrong. If the Court looked at it for every reason it would reach the same conclusion. This was also a time when there was coronavirus in the United States!
It may well be that if it was prosecuted in the UK that a plea of guilty might be entered, but clearly an offence would need to be identified, but at least then Mr Robert McDaid would have leave to travel and not be a fugitive from the United States for the rest of his life.
Holyrode LJ asked for the last bit to be repeated as he hadn’t clearly heard what was said about section 106, he asked him to summarise the bit again about section 106.
Edward Fitzgerald QC replied outlining the options available at judicial review and pointed out that the Court’s powers were discretionary. That was his submission.
Holyrode LJ asked if it was the submission in relation to a possible plea?
Edward Fitzgerald QC said that if the appeal was dismissed, then Mr Robert McDaid could still be liable to be prosecuted in the UK and if prosecuted might plead to some offence, but if it didn’t get dealt with here in the UK, Mr Robert McDaid would be a fugitive for the rest of his life so there was a big incentive, as he’d never be able to travel outside of the UK. So it was in Mr Robert McDaid’s interests to get dealt with fairly and properly in the UK.
He made a long submission that mainly repeated points made earlier.
Holyrode LJ stated that there were a couple of matters that he welcomed assistance on. The concession that the evidence could be made available to the UK, which document in the bundle recorded the terms on which that was conceded?
Edward Fitzgerald QC pointed to the fact that the CPS had contemplated the possibility.
Holyrode LJ clarified what he was not asking about, but what had been said to the District Judge and the possible host of difficulties referred to in some of the written submissions that he didn’t think was in the bundle?
Edward Fitzgerald QC said it was recorded in the skeleton argument and referred to at paragraph 41, where it was written it would be expensive, complicated and time consuming but was not impossible and could be made available.
William Davies J apologised for his interruption, but in the original bundle the submissions of the Government of the United States were in a statement. Could the evidence be made available to prove in the UK? At considerable expense and inconvenience, all the witnesses were in America and all the evidence was from an American investigation. It was repeated in paragraph 38 of the grounds of appeal.
Holyrode LJ said it was helpful.
Edward Fitzgerald QC started about a short point about jurisdiction. Holyrode LJ stated he understood that point, but the next matter he would welcome help with which was referred to in evidence was how competence or mental health would cause long delays and some discussion as to why it would be longer in the US than the same in the UK?
Edward Fitzgerald QC said he would pass over to Mr Williams, but mental competency would take some time which would lead to a further extension over a longer period of time. Holyrode LJ asked if Mr Williams could assist.
Mr David Williams commented briefly.
Holyrode LJ asked if William Davies J wanted to ask a question to which William Davies J answered, “No”.
Holyrode LJ asked if Helen Malcolm QC had any reply?
Helen Malcolm QC made a few short points. She mentioned the Shaw case and the considerable expense of a trial in the UK. It would be possible with cooperation from both sides to get the evidence, but it would be difficult and inconvenient and that was only the first half. There would have to be an independent prosecutor who was not familiar with the case and it needed to go to the police to give the Defendant the option of any interview and a proper investigation, then the prosecution would need to decide on both limbs of the Code.
Holyrode LJ made a point about her submission.
Helen Malcolm QC stated she had lost her train of thought, but was incapable of double guessing any delay occasioned by mental health. She discussed possible offences such as those in the Malicious Communications Act 1988, but it would need to be an offence with a maximum of 2 years imprisonment and went on about the hoops that would have to be gone through.
Holyrode LJ thanked her, said he had nothing he wanted to ask but asked William Davies J if he had a question for her? William Davies J didn’t but he’d been looking at the Malicious Communications Act and the proof required was that the purpose was to cause distress and anxiety to the recipient. He wondered whether the recipient was whatever law enforcement agency in Maryland or any other person it was intended it should be communicated to?
Helen Malcolm QC referred to the telephone call and regarding the level of anxiety and immediate reaction, it was not an offence one would normally use, instead perverting the course of justice would be looked at.
Edward Fitgerald QC on the question of interfering with the course of justice suggested to look at the Dempsey case  EWHC 1724 (Admin) which was about the course of justice in the United States.
William Davies J said he had given judgement in that first case.
Edward Fitgerald QC described it as a classic case and that if a new issue was to be raised there had to be special reasons.
Holyrode LJ said that Holyrode LJ and William Daives J would leave the meeting for a few minutes but no more than five to discuss the timetable, he asked people to remain albeit it muted and that they should be back within 5 minutes.
Holyrode LJ thanked everyone and thanked counsel for the submissions and preparation of the case and assistance of junior counsel. Judgements would be reserved and handed down remotely. A draft judgement would be sent to counsel for correction of any typographical errors, which was not for further arguments. He would be grateful if there could be an agreed order for consequential matters but if agreements were not possible then there would be brief submissions, he hoped that was clear.
Helen Malcom QC and Edward Fitzgerald QC both expressed their thanks.
Holyrode LJ thanked the clerks and said “goodbye”.
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