Man accused of grooming girl online wins human rights challenge against extradition to USA
A man accused of inducing a 14-year-old American girl to send him naked pictures of herself and enticing her to carry out sexual acts over the internet will not be extradited from Scotland to the United States.
The Extradition Court in Edinburgh ruled that the extradition of the “requested person” would breach his human rights, but added that he could still be prosecuted for the alleged offences in Scotland.
Sheriff Frank Crowe heard that Christopher Thomson, 26, is alleged to have met the Texas-based teenager online as players in a war game and, having induced her to send naked pictures of herself to him and carry out sexual acts on video, received and distributed child pornography.
When the child tried to end the relationship in the summer of 2014 the requested person threatened her and posted naked images of the girl to the child’s mother and other relatives.
A complaint was made on behalf of the child in September 2014 to the US Homeland Security Investigations, which notified Police Scotland of the matter, having ascertained that the IP address of the perpetrator of the offences was located in Dundee.
Officers obtained a search warrant and searched the requested person’s home, where they seized a laptop and iPhone and found a video recording of the child.
During his interview with police he waived his right to a solicitor and made various admissions that he was the male in the video and that he had threatened the girl that would send the naked pictures to her parents, thus forcing her to perform on the video recording.
After completing their investigations, a grand jury in Texas returned an indictment charging the requested person with four charges, one of which carries a minimum sentence of 10 years and maximum sentence of life imprisonment.
The US Attorney General sent an extradition request, which was certified under section 70 of the Extradition Act 2003 by the Cabinet Secretary for Justice on behalf of Scottish Ministers, and the warrant was granted.
This was one of two cases which were the subject of judicial review proceedings before Lord Malcolm in the Court of Session (see James Craig v Advocate General for Scotland and Scottish Ministers  CSOH 117), in which the court ruled that the UK government was acting “unlawfully” by failing to bring into force in Scotland the “extradition forum bar” provisions.
The aim of the provisions, which were introduced in the rest of the UK by the Crime and Courts Act 2013, to prevent extradition if the alleged offence can be fairly and effectively tried in the UK and it is not in the interests of justice that the accused person be extradited.
The requested person’s position was that the absence of the “forum bar” challenge would mean his extradition would not be compatible with his Convention Rights under the Human Rights Act 1998.
In terms of section 87(1) of the Extradition Act 2003, the court must decide whether the person’s extradition would be compatible with the Convention rights, and in terms of section 87(2) if court decides that question in the negative it must order the person’s discharge.
It was also argued that extradition would breach the requested person’s Articles 5, 6 and 8 rights under the European Convention on Human Rights and amount to “oppression” at common law.
The court heard that he suffered from mental health problems and was living with his 45-years-old mother, who suffered from depression, anxiety, kidney problems and agoraphobia.
He was his mother’s carer, helping her to dress and doing all her shopping for her and she was “virtually housebound”.
It was submitted the case could easily be prosecuted in Scotland as there had only been two witnesses listed on the original indictment who were not Scottish police officers, neither of whom was the complainer.
While the complainer, who is now an adult, could give evidence down the line with local witness support if need be, it was suggested there would be no need for this given the terms of the requested person’s police interview, in which various admissions were made amounting to “special knowledge of the crimes”.
The court was asked to take into account his family circumstances and the greater possibility to assist and support his mother if prosecuted, convicted and imprisoned in Scotland.
The court was also asked to consider the “extraordinary chronology” of the proceedings before the extradition warrant was issued.
Requested person discharged
The sheriff ruled that extraditing Mr Thomson to the US would breach his human rights and therefore ordered his discharge.
In a written judgment, Sheriff Crowe said: “The requested person is still a young man – the offences occurred when he was 21. He is the carer for his mother and his own mental health fluctuates.
“There is joint jurisdiction for all of the offences. Whereas proceedings in the requesting country would be convenient for the complainer and 2 other witnesses, a large number of Scottish police officers would have to give evidence in the USA in some way.
“ The decision to make in this case is whether to extradite for proceedings in the USA or to discharge leaving the Crown to prosecute in Scotland.
“Taking the list of ‘pros’ and ‘cons’… only the importance of the UK honouring its extradition arrangements remains to which can be added the satisfaction of the complainer having the accused prosecuted in her local court.
“As against that most if not all or perhaps further charges can be prosecuted in Scotland if proceedings are taken here.
“There is no inconvenience to the complainer and other witnesses whose evidence can be adduced by live link, the requested person will be better placed to continue caring for his mother.
“He does not appear to have committed further offences, but his physical and mental health remain problematic.”
He concluded: “I do not consider extradition would be compatible with the requested person’s Conventions rights under Article 5, 6 and 8.
“I therefore answer the question posed in the negative and in terms of section 87(2) order the requested person’s discharge.”
However, the sheriff added that his decision did not mean that the requested person could not be prosecuted for the offences in Scotland.
He said: “It would be possible to seek the return of the productions from the USA, petition for the extension of time bars and institute proceedings in Scotland.”
© Scottish Legal News Ltd 2020