Autism spectrum disorders and Extradition from EU

Mental health matters
Mental health matters

Introduction

Autism spectrum disorders (ASD) are a group of neurodevelopmental conditions that are characterized by impairments in social communication and repetitive, restricted behaviour patterns, as well as atypical responses to sensory stimuli. Autism spectrum disorders (ASD) typically manifest in early childhood and last a person’s entire life.

High-functioning autism spectrum disorder (ASD), formerly known as Asperger’s syndrome (AS), has been studied extensively for its possible crime-inclined elements. Many people with ASD also struggle with comorbid conditions like ADHD, O

CD, intellectual disability, anxiety, and depression. Additionally, people with ASD are disproportionately likely to engage in certain types of criminal behaviour, including cybercrimes like hacking, stalking, and harassment, as well as sexual offences that stem from a failure to interpret nonverbal cues properly.

In criminal prosecutions involving such people, it has long been a source of forensic difficulty for defense attorneys and mental health professionals drafting expert reports to determine the impact of the disorder on the defendant’s ability to form the requisite criminal intent, assist the defendant in court proceedings3, and, most commonly, assess the defendant’s degree of moral culpability so that appropriate punishments can be handed down. Expert evaluation has also struggled to account for how well a person with ASD might do in a correctional facility, where they might be separated from familiar routines and sources of support like family. An issue of great importance for a sentencing judge and the forensic psychiatrists and psychologists who work with them is whether or not the defendant’s autism spectrum disorder (ASD) will make serving a prison sentence significantly more difficult or more severely exacerbate the symptomatology of the disorder.

Evidence from studies shows that adults with ASD who are incarcerated may be at a higher risk of being bullied, isolated, sexually victimized, exploited, or involved in violent altercations with other inmates. Because of their difficulties in forming and maintaining healthy relationships with others, some people with ASD may be at a higher risk of becoming victims. They may also have trouble communicating effectively, rigid attitudes, and limited spheres of interest and behavior. Individuals on the autism spectrum may also find that corrections officers lack empathy. The mental disorder known as borderline personality disorder (BPD) is extremely complicated. It is characterized by a lack of control over one’s actions, a lack of insight into one’s own mental state, and the resulting instability of interpersonal relationships. Constant ups and downs in mood, including extremes of self-assurance and depression, are common. Self-injury and suicidal ideation are common. Very serious consequences follow from the condition. The social and psychological functioning, the occupational functioning, and the quality of life of people with BPD are all compromised. People in this demographic are at an elevated risk of taking their own lives. The suicide rate among people with BPD is actually quite high, comparable to that of people with schizophrenia. This paper will view these mental conditions under ASD for ease of understanding. 

It has been argued in court that people with ASD should not be extradited to the harsh and overcrowded conditions of United States prisons to face trial for certain offences like computer-related offences because of their inability to cope with incarceration there. United Kingdom case law has shed light on the difficulties of helping courts understand the systemic impact of ASD on individuals who may be removed from their native environment, possibly to serve lengthy prison terms in another country, but also on the ways in which forensic mental health professionals can best ascertain the authenticity and nature of the difficulties likely to be experienced by such individuals.

Mental Health and Extradition

The process of extraditing a person who has been charged with or convicted of a crime to the jurisdiction that will be handling their prosecution is an important part of transnational justice cooperation. The suspect is a fugitive from the jurisdiction that originally laid criminal charges, so the goal is to pursue national, transnational, or global crime control and enforcement objectives that would not otherwise be met.

Even though several legal theories are pertinent to discussions of extradition, including treaty compliance theory, transnational criminal law, rule with law, and extraterritoriality, traditional criminological theories are inadequate to account for situations in which multiple countries and legal systems are involved in the same alleged criminal activity. Furthermore, there is no unified transnational criminological theory that can account for the many different ways in which domestic and international justice administration are carried out in the legislative, executive and judicial spheres. Extradition decisions and the impact of broad criminological ideas on individual cases can only be partially understood through the lenses of these methods. This haziness contributes to extradition’s already-high level of complexity and underscores the ongoing need for more research based on specific cases or, failing that, on the identification of recurrent patterns among analogous cases.

Most worries about an extraditee’s well-being are addressed during the criminal trial that follows the extradition. As a result, during the actual process of surrender, the individual has very little authority or power. Although there has been a recent push for worldwide uniformity in human rights protection and enforcement, as well as defendant-centred approaches that prioritize the needs and protection of individuals, many states, including the United States, have yet to be a party to or implement them with limitations, and the only time contraventions are upheld is when they either are extreme or contradict broad national values of decency and good conscience, at which point protective judicial intervention occurs. Despite this, many states have been publicly accused of and proven to have kidnapped defendants with no consequences.

It has been argued that enforcing extradition treaties prioritizes cooperation, agreement on certain policy objectives, and the efficient surrender of fugitives over protecting individual rights in order to preserve a country’s international political reputation. This is because states generally follow a trend in extradition law by introducing new instruments on cooperation aimed at increasing efficiency.

Mental Health of UK-EU Residents and Extradition

The Extradition Act (2003) provides that a suspect in England or Wales may contest extradition on the grounds of oppression, human rights, and forum bar. If it can be proven that the individual’s mental health would make extradition unjust or oppressive, the extradition request may be denied. This can consider the type(s) of mental health issues as well as the perceived severity of any risks involved, such as suicide. In several high-profile cases in the United Kingdom, courts have blocked extradition because they determined it would be oppressive and counter to the interests of justice to hand over suspects who had been diagnosed with autism spectrum disorder and were at high risk of suicide. All of these incidents share a digital element that violated US criminal laws or threatened national security.

There were a total of three mental health challenges filed in the Lauri Love case, with two of them being accepted to prevent his extradition to the United States.For his alleged role in a series of cyber-attacks on the computer networks of private companies and US government agencies between October 2012 and October 2013, Love, a 33-year-old dual British and Finnish citizen, was indicted on three counts.

The UK Home Secretary issued the extradition order for Love on November 14th, 2016. However, Professor Kopelman and Professor Baron-Cohen testified in court against Love’s surrender as expert witnesses. Love was a high-functioning individual, as attested by Professor Baron-testimony. Cohen’s Love was able to attend court proceedings and give instructions to his legal representative. However, both witnesses agreed that Love would make a suicide attempt before being extradited to the United States. Love’s mental health would be best served by keeping him in England with his family and away from the threat of indefinite detention. Extraditing Love was ultimately ruled against by the High Court due to concerns that doing so would be unjust and repressive. Since Love’s alleged crime occurred in England, the forum bar did not prevent him from being tried there.

Similarly, Scottish systems administrator and computer hacker Gary McKinnon fought extradition to the US, where he faced criminal proceedings for his role in gaining unauthorized access to 97 government computers between February 1, 2001, and March 19, 2002. McKinnon denied any malicious intent but claimed he was looking for evidence of the US government’s covert use of surveillance technologies to track UFOs. After being arrested for the first time on March 19, 2002, McKinnon was finally diagnosed with Asperger’s syndrome on August 23, 2008. When questioned about his hacking, McKinnon shifted the conversation to his obsessive quest for proof of extraterrestrial life in official documents. Without the context of his ASD, his singular focus could be misconstrued as narcissism and an inability to see the error of his ways. Professor Baron-Cohen, an expert on autism, testified on McKinnon’s behalf as he did in the Love case, arguing that McKinnon honestly believed that what he was doing was right because he was trying to uncover the truth and that doing so was the right thing to do. However, after years of judicial review, it was expressed that McKinnon’s ASD was not sufficient to prevent his extradition under English and Welsh laws that predated the introduction of a forum bar test. Finally, on October 16, 2012, UK Home Secretary Theresa May made the executive decision not to extradite McKinnon to the US due to his poor health.

The Forum Bar and Human Rights Bar

If the person being extradited would be subject to torture or other cruel, inhuman, or degrading treatment or punishment if they were to be returned to their home country, then their extradition would be prohibited under the Human Rights Bar. Last but not least, if the extraditee was in the United Kingdom at the time of the alleged crime in the extradition requester’s country, the forum bar may apply. Section 83A of the Extradition Act 1983 (UK) was relied on for the forum bar argument because of the Home Secretary’s refusal to order Gary McKinnon’s extradition to the United States.

Concerns about an extraditee’s mental health and suicide risk have led to protective judicial blocks on extradition under UK law and widespread public criticism in recent cases, including Julian Assange’s who has evidence of Borderline Personality Disorder and other mental health conditions. Amnesty International and a group of British doctors took activist measures to prevent Assange’s extradition. At least five sovereign states may be able to exercise jurisdiction over Assange, depending on the specifics of his alleged offense, his personal situation, and the myriad of conflicting issues that arise in jurisdictional theories. Australia because of his citizenship there, Ecuador because of his time spent in the embassy, Sweden because of the sexual assault allegations (although the cases have since been dismissed due to the passage of time), the United Kingdom because of his location, and the United States because of the location of the alleged crimes. However, the United States has a more developed surveillance and investigative infrastructure, which gives it a certain priority over any other jurisdictional claims regarding Assange, due to its position as a world leader in the political and criminal enforcement environment. This is especially true with regard to crimes that involve the use of digital technology, such as digital piracy and the policing of the dark web. 

Since it is unclear whether the alleged US offenses occurred while he was located in the UK or elsewhere, any arguments to block extradition using the forum bar raise several contentious evidentiary considerations that are unlikely to receive judicial support. After reviewing the psychiatric evidence, District Judge Vanessa Baraitser ruled on 4 January 2021 that “the mental condition of Mr. Assange is such that it would be oppressive to extradite him to the US” (The Government of the United States of America v.Assange,2021a, para.363). Judge Baraitser’s original ruling was reversed after an appeal by the United States and the High Court.

Aswat v. United Kingdom involves a case in which a person with paranoid schizophrenia was detained in a high-security psychiatric facility in the United Kingdom. In 2005, he was arrested in the United Kingdom after a request for his arrest and extradition was made by the United States. He had been indicted in the United States as a co-conspirator with respect to a conspiracy to establish a jihad training camp in Oregon. The applicant claimed that he would be subjected to inhumane treatment if extradited to the United States, citing his paranoid schizophrenia as a primary reason why his detention conditions (including a lengthy pre-trial detention and possible placement in a “supermax” prison) would make his condition worse. The Court found that the applicant’s extradition to the United States would violate Article 3 (prohibition of inhuman and degrading treatment) of the EU Convention on Human Rights, but this was due solely to the current severity of his mental illness and not to the length of his possible detention in the United States. Based on the medical evidence presented, the court determined that the applicant’s extradition to the United States, a country to which he had no ties, and to a different, potentially more hostile prison environment, would pose a serious risk to his mental and physical health. It is possible that such deterioration would constitute treatment in violation of Article 3 of the Convention.

The applicant’s extradition from the UK to the US was found to be in breach of Article 3 of the Convention by the European Court of Human Rights. However, the applicant was ultimately extradited to the United States in October 2014 after the government of the United Kingdom received a series of specific assurances from the government of the United States concerning the conditions under which he would be detained in the United States prior to trial and after a possible conviction. The Court ruled in July 2013 that the UK Government’s concerns had been adequately addressed by the US Government’s comprehensive assurances and additional information. According to Article 35 (eligibility criteria) of the Convention, the Committee found the applicant’s complaint to be without merit.

Thus, it is safe to say that states still get priority over individuals and can supersede the need for care as a result of mental health conditions by ‘promising’ to properly care for the person. This on the face of it sounds fair and reasonably until the issue of enforceability of human rights after extradition is considered; individuals cannot enforce rights while in detention after extradition and the voice of the surrendering state is the only condition that can make courts listen to such issues that may arise after extradition

Conclusion

Evidence shows that questions related to mental health and suicide are not uniformly resolved in extradition cases, and that legal systems typically fail to systematically recognize and cohesively manage these issues. The in-depth analysis of legal cases involving suspects in offshore online offending against US interests with well-documented histories of ASD, who often experience years of uncertainty as challenges to extradition are heard in domestic English and Irish courts, and this lends credence to this notion. 

More generally, there is undeniably a gap in knowledge and understanding where mental health and extradition law and practice intersect, thus. many unorthodox and difficult evidentiary challenges can add to the complex and completely unpredictable nature of the law in this field. Even though some countries, like England and Wales, have special regulations to help inform courts about how mental health and suicide risk should be handled, courts may set the bar so high that only in the rarest of cases will [the relevant legal threshold] be met due to contradictory and highly technical assertions connected with their application. As a result, claims regarding mental health and suicide risk often have limited relevance in these complicated extradition cases, except in political determinations that only come after years of judicial examination.

Due to this, the initial English court ruling denying the US request for Assange and Love on the grounds of poor mental health and high risk of suicide stands out as an outlier that necessitates a more thorough examination of the intricate interplay between the criminal laws and enforcement powers of the requesting nation, and the ability of the requested nation and the extraditee to contest these issues.

 

**Decisions involving the UK are prior to the BREXIT implementation and thus, still form part of EU case law and legal compendium

 

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