American woman accused of defrauding former employer loses appeal against extradition back to USA

About this case:

• Citation:
  [2023] HCJAC 29
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Pentland

Sarah Lynn Tweedy, or Morrow, was accused of defrauding her former employer, referred to as LF, of $165,239.35. She resisted extradition on the grounds that it would be oppressive due to the passage of time since the alleged offences and contrary to her ECHR right not to be subjected to inhumane and degrading treatment in US federal prison.

The appeal was heard by the Lord Justice General, Lord Carloway, together with Lord Pentland and Lord Matthews. Mackintosh KC appeared for the appellant, with Frain-Bell, advocate, appearing for the Crown representing the American authorities and McGuire, advocate, for the Scottish Ministers.

Real risk

The indictment against the appellant arose from her employment by LF, based in St Louis, as a financial controller and detailed three counts of mail fraud, five counts of wire fraud, and two counts of aggravated identity theft, which accounted for $8,357.10 of the total allegedly defrauded. It was alleged that she devised a scheme whereby she purchased Amazon vouchers using a corporate account, accessed the payroll system to fraudulently increase her salary, and used the same system to cause LF to pay her illegitimate and unapproved expenses.

In 2017, the appellant obtained a UK fiancée visa and moved to Scotland to live with her now husband, Matthew Morrow, with whom she had been in a long-distance relationship since 2015, along with his two children. She argued that her extradition would have an oppressive impact on her family, with Mr Morrow giving evidence that his life would crumble if she were extradited.

It was also the appellant’s case that sexual abuse of female prisoners within US federal prisons was prevalent and that contrary to her article 6(2) ECHR right, a US sentencing judge would consider other conduct for which she had not been convicted by a jury in determining her sentence. The sheriff determined that the test for oppression had not been made out and that the appellant had not shown that in her particular case she had substantial grounds for believing she faced a real risk of sexual abuse.

Counsel for the appellant submitted that the sheriff ought only to have had regard for the allegations the US prosecutor intended to prove rather than the total loss amount narrated in the indictment, and thus had wrongly assessed the seriousness of the offences. Further, the assurances given by the American authorities were not sufficient to remove any risk of ill treatment.

Inevitable hardship

Lord Pentland, delivering the opinion of the court, observed: “By way of introduction to the Convention issues it is important to reiterate that a distinction must be drawn between extraditions within contracting states and those involving non-contracting states. It is emphatically not for contracting states to seek to impose Convention standards on non-contracting states. It will require strong and cogent evidence of likely mistreatment to amount to a bar on extradition to states, such as the US, with a long history of respect for democracy, human rights and the rule of law.”

Addressing the appellant’s Article 3 case, he said: “The overall picture which emerged from the evidence was that the US authorities do not tolerate sexual abuse of female prisoners and are committed to eradicating the problem from the penal system by putting in place a range of measures to address it. The court acknowledges that it may never be possible for any system to eliminate the risk of abuse completely.”

He continued: “The existence of a general risk is not the issue, however. The appellant must show that there are substantial grounds for believing that she faces a real risk of being subjected to treatment contrary to Article 3 if she is extradited. Having considered all the evidence the sheriff concluded that the appellant had failed to do so.”

Turning to the Article 6 case, Lord Pentland said: “There is no doubt that US law would not classify the sentencing stage of the prosecution in a case such as the present one as amounting to the bringing of a stand-alone charge. The essential nature of that stage is that it is concerned with determination of the appropriate sentence to impose on a convicted person. The penalty could be substantial if justified on the evidence, but that factor alone is not sufficient to transform the distinct sentencing process into a separate criminal proceeding involving the appellant being accused of a different criminal charge to the counts that feature on the indictment.”

On oppression, he concluded: “The sheriff recognised that the passage of time between the earliest date on which the alleged offences took place in July 2017, and the extradition hearing in early January 2023 had had a significant impact on the appellant in view of her new lifestyle in Scotland. Inevitably hardship would be caused by her extradition to her new family. Even so, the indictment charged serious offences concerning a fraudulent scheme valued at $165,239.25. Any personal or family suffering was no more severe than the inevitable hardship inherent in extradition for a criminal trial in another country.”

Leave to appeal was therefore refused.