MacKellar (Iain Nigel) v United States of America and HE The Governor

¶ ```html IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE CASE NO ： 06385/2017 IN THE MATTER OF AN APPEAL FROM THE MAGISTRATES' COURT IN CAUSE #06385 of 2017 BETWEEN： IAIN NIGEL MAC KELLAR Appellant and THE UNITED STATES OF AMERICA 1st Respondent and H.E. THE GOVERNOR OF THE CAYMAN ISLANDS 2nd Respondent Appearances： Mr. Edward Fitzgerald Q.C. instructed by Mr. James Austin Smith of Campbells for the Appellant Mr. James Lewis Q.C. instructed by Ms. Toyin Salako of the ODPP for the 1st Respondent Mr. David Perry Q.C. instructed by Ms. Reshma Sharma of the Attorney General's Chambers for the 2nd Respondent Before： Dame Linda Dobbs Heard： 18th-21st November 2019 HEADNOTE al Law-App Criminication for Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order： Mackellar (Iain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram： Dame Dobbs (Actg. Judge). Date ： 9.03.2020 Page 1 of 47 ```
```html 1 INTRODUCTION 2 1. The Appellant, Dr MacKellar, suffers from end stage liver disease. He is in an 3 immune-compromised state. This means that he has a much higher risk of developing 4 common bacterial infections. The prognosis is that Dr MacKellar is likely to die 5 within the next 12 months if he does not receive a liver transplant. There is no facility 6 to carry out liver transplants in the Cayman Islands. There is an urgency for this 7 judgment to be handed down as quickly as possible. 8 2. The appeal commenced on 18th November 2019 and concluded on 21st November 9 2019. For sake of efficiency, it was agreed that the case should be dealt with as a 10 “rolled up” hearing. All relevant papers have been read. Absence of reference to a 11 particular document, authority or every point made, does not denote that they have 12 not been considered. 13 3. It should be noted however, as will be explained later, that the court has been waiting 14 for further submissions from the Appellant and First Respondent before the 15 judgment could be finalised. 16 BACKGROUND 17 4. The Appellant is charged on a 12 count indictment filed on 9th July 2015 in the US 18 District Court for the Southern District of Texas. The offences are in summary: 19 conspiracy or aiding and abetting wire fraud, mail fraud, the use of counterfeit labels 20 bearing registered marks on Frontline veterinary products, trafficking in counterfeit 21 labels, documentation and packaging, and smuggling. 22 the timeline of events is as 23 follows: Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order: Mackellar (Iain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram: Dame Dobbs (Actg. Judge). Date: 9.03.2020 Page 2 of 47 ```
```html 1 27th November 2017 Request to HE Excellency the Governor of the Cayman Islands from the USA. 2 6th December 2017 Request certified by the Governor and transmitted to the Magistrate of the Summary Court. 3 20th December 2017 Preliminary hearing before the Magistrate. 4 30th April - 3rd May 2018 Extradition hearing before the Magistrate. 5 24th September 2018 Magistrate's ruling and transmittal to the Governor. 6 5th October 2018 Notice of Application for leave to appeal. 7 19th October 2018 Representations to the Governor on behalf of Dr MacKellar. 8 18th January 2019 The Governor sends the extradition Order to Dr MacKellar. 9 30th January 2019 Dr MacKellar asks the governor for reasons. 10 4th February 2019 The Governor provides reasons for his decision. 11 6th February 2019 Amended Notice for leave to appeal. 12 8th November 2019 Declarations of Brent Newton (dated 25.9.2019)，Mike Babcock (7.11.2019)，Eric Lewis (8.11.2019) and Professor Moore (8.11.2019) served by the Appellant. 13 10th November 2019 Appellant indicates that he proposes to call Professor Moore and Eric Lewis. Declaration of Dr Finkelberg (8.11.2019) served. 14 18th - 21st November 2019 Application for leave to appeal hearing. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. There are two applications for leave to appeal against： 29 a. The Ruligistrate；and 30 b. The deci 31 The appeals will be dealt with separately. ``` ```latex \documentclass{article} \usepackage{amsmath} \usepackage{geometry} \usepackage{tabularx} \usepackage{graphicx} \usepackage{hyperref} \section*{Transcription of the Document} \begin{tabularx}{\textwidth}{|p{1cm}|p{5cm}|p{10cm}|} \hline 1 & 27th November 2017 & Request to HE Excellency the Governor of the Cayman Islands from the USA. \\ \hline 2 & 6th December 2017 & Request certified by the Governor and transmitted to the Magistrate of the Summary Court. \\ \hline 3 & 20th December 2017 & Preliminary hearing before the Magistrate. \\ \hline 4 & 30th April - 3rd May 2018 & Extradition hearing before the Magistrate. \\ \hline 5 & 24th September 2018 & Magistrate's ruling and transmittal to the Governor. \\ \hline 6 & 5th October 2018 & Notice of Application for leave to appeal. \\ \hline 7 & 19th October 2018 & Representations to the Governor on behalf of Dr MacKellar. \\ \hline 8 & 18th January 2019 & The Governor sends the extradition Order to Dr MacKellar. \\ \hline 9 & 30th January 2019 & Dr MacKellar asks the governor for reasons. \\ \hline 10 & 4th February 2019 & The Governor provides reasons for his decision. \\ \hline 11 & 6th February 2019 & Amended Notice for leave to appeal. \\ \hline 12 & 8th November 2019 & Declarations of Brent Newton (dated 25.9.2019)，Mike Babcock (7.11.2019)，Eric Lewis (8.11.2019) and Professor Moore (8.11.2019) served by the Appellant. \\ \hline 13 & 10th November 2019 & Appellant indicates that he proposes to call Professor Moore and Eric Lewis. Declaration of Dr Finkelberg (8.11.2019) served. \\ \hline 14 & 18th - 21st November 2019 & Application for leave to appeal hearing. \\ \hline 15 & & \\ \hline 16 & & \\ \hline 17 & & \\ \hline 18 & & \\ \hline 19 & & \\ \hline 20 & & \\ \hline 21 & & \\ \hline 22 & & \\ \hline 23 & & \\ \hline 24 & & \\ \hline 25 & & \\ \hline 26 & & \\ \hline 27 & & \\ \hline 28 & 6. & There are two applications for leave to appeal against: \\ \hline 29 & a. & The Ruligistrate；and \\ \hline 30 & b. & The deci \\ \hline 31 & & The appeals will be dealt with separately. \\ \hline \end{tabularx} \begin{figure}[h] \centering \includegraphics[width=0.8\textwidth]{image.png} \caption{Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order: Mackellar (Iain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram: Dame Dobbs (Actg. Judge). Date: 9.03.2020} \end{figure} ```
THE MAGISTRATE'S RULING ## PROCEEDINGS BEFORE THE MAGISTRATE ### ISSUE ONE: ABUSE OF PROCESS.

¶ [7] There were two bases to the argument. They can be stated shortly. Firstly, that the conduct was not a offence in the US and secondly, that the statements in "The Request" were confusing and misleading, such as to amount to an abuse of process. ### ISSUE TWO: EXTRADITION OFFENCE

¶ [8] The Prosecution submitted that the conduct set out on the Extradition Request ("The Request") disclosed a number of offences under Caymanian Law. These were offences under: a. s.3(1) and s.3(2) of the Merchandise Law – namely forgery, application of false trademark labels and selling merchandise with forged labels; b. s.53 of the Customs Law – smuggling; c. s.247 of the Penal Code – obtaining property by deception and finally, conspiracy to defraud.

¶ [9] The Appellant submitted, relying on the evidence of a US attorney, that in respect of the packaging of the goods, there was no offence in law either in the US or the Cayman Islands and that therefore it was an abuse to extradite. Alternatively, there were misstatements in "The Request" which misrepresented the true position. The elements of co-fraud were not established because the Appellant was not made aware of the true nature of the goods. The Appellant was not made aware of the true nature of the goods because the Appellant was not made aware of the true nature of the goods. The Appellant was not made aware of the true nature of the goods because the Appellant was not made aware of the true nature of the goods. The Appellant was not made aware of the true nature of the goods because the Appellant was not made aware of the true nature of the goods. 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```html 1 obtaining by deception was concerned - there was no material deception or evidence 2 of dishonest intent. Regarding the forgery offences, there was no false description as 3 the contents were authentic. Finally, in respect of the Customs Law, there was 4 nothing clandestine about the manner in which the authentic goods were imported. 5 Moreover, they were exempt from duty. 6 7 ISSUE THREE：UNJUST AND OPPRESSIVE TO EXTRADITE 8 9 10. The Appellant relied on s. 91 of the Extradition Act 2003 which is incorporated into 10 the Cayman Law by virtue of Schedule 3 of the Extradition Act (Overseas 11 Territories) Order 2016 to submit that it would be unjust and oppressive to extradite 12 Dr MacKellar because of his severe medical condition. 13 14 THE MAGISTRATE'S DECISION 15 16 11. The Magistrate rejected the Appellant's submissions, finding that: 17 a. there was no abuse, 18 b. the extradition offences were made out and 19 c. it was not unjust or oppressive to extradite Dr MacKellar. 20 Her reasons will be examined when considering the grounds of appeal. 21 THE APPEAL AGAINST THE MAGISTRATE'S RULING 22 23 THE GROUNDS OF APPEAL 24 26 appeal under that the Ned iated. Therrou date 12. grounds befc 25 The originalre the Ma 27 medical evidence of Dr MacKellar's condition in light of the deterioration in his Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order: Mackellar (Iain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram: Dame Dobbs (Actg. Judge). Date: 9.03.2020 Page 5 of 47 ```
```html 1 health following the hearing in the court below and before the Magistrate had 2 delivered her decision. 3 4 13. There are two new grounds put forward, that: 5 6 a. The Appellant will be exposed to a “flagrant denial of justice” if he is extradited, 7 because he can be sentenced on the basis of additional allegations which did not 8 form the basis of the extradition offences; and 9 b. His extradition is barred under s.81(b) of the 2016 Order because he will be 10 prejudiced in his trial in the US on grounds of his foreign nationality. 11 12 14. In addition to the new grounds, the Appellant also sought to have fresh evidence 13 admitted from Brent Newton, Mike Babcock, Eric Lewis, Professor Moore and Dr 14 Finkelberg. The First Respondent objected to the admission of the new evidence save 15 for parts of Professor Moore’s evidence where he deals with the updated medical 16 condition of Dr MacKellar and similarly, Dr Finkelberg. In order to save time, it was 17 agreed that the evidence would be admitted “de bene esse” and that the court would 18 determine what, if any, weight was to be given to the evidence. 19 20 THE CONDUCT 21 22 15. In order to put the first two grounds in context, it is necessary to set out the relevant 23 “conduct” alleged. This can be found at Paragraph 5 of the Magistrate’s ruling. 24 25 “As part of his business, MacKellar created boxes with counterfeit labels and 26 that bore “Firks that are is 27 shable from Identical to or 28 packaging*online Plus” substantially 29 indistinguishable from the 30 authentic 31 U.S. Patents, MacKellar made for line 32 counterfeit stic United States or approved by the U.S. Environmental Agency (“EPA’; into the boxes Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order: MacKellar (Iain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram: Dame Dobbs (Actg. Judge). Date: 9.03.2020 Page 6 of 47

¶ [1] bearing the counterfeit Frontline Plus labelled boxes he created to falsely represent that the Frontline Plus products inside such boxes conformed to the specification for the United States version of these products and had been approved by the EPA, when in fact those products were manufactured for sale outside the United States. MacKellar through companies under his control then shipped these "re-boxed" veterinary products to co-conspirators in the United States.

¶ [2] Merial Pharmaceutical Company ("Merial") owns the Frontline Plus trademark. Neither MacKellar nor his co-conspirators were authorized by Merial to manufacture or use labels bearing the Frontline Plus mark. MacKellar intentionally trafficked in and sold Frontline Plus products manufactured for sale overseas in boxes with labels bearing counterfeit Frontline Plus marks for the purpose of deceiving US retail stores and consumers in believing that the Frontline Plus products obtained therein were in fact manufactured for, and approved for sale in, the United States. Finally, MacKellar sold such Frontline Plus products with counterfeit labels for private financial gain to various places, including the Houston, Texas area.

¶ [3] On or about May 4, 2015, a shipment of reboxed Frontline Plus labelled veterinary product manufactured for the foreign market purchased from MacKellar was received in Houston, Texas, and prescription veterinary drugs Comfortis and Trifexis manufactured for a foreign market were also received. The indicated shipper, "HUMANE RESCUE" came from an address in the United Kingdom. In fact, MacKellar was the shipper. The contents of the shipment were declared as "PC PRODUCTS" enclosed letter that stated that the products were a donation as a result of hurricanes when, in fact, the letters were used as a tool by MacKellar to evade seizure by United States Customs officials".

¶ [16] In Paragraph 6 of her Ruling, the Magistrate set out further particulars of the conduct: "The counterfeit boxes and packages used false and fraudulent lot numbers. These lot numbers are significant as they allow federal agencies such as EPA and FDA and consumers to trace the origin of the goods in the event they are defective or cause harm. Some of the false and misleading information applied to the counterfeit boxes included: - Fraudulent EPA labels indicating that the goods were approved for administration to the United States consumers by the EPA - False lot numbers that were inconsistent with the lot numbers affixed to the product inside of the boxes, and - References to weight references in ounces or fluid millilitres", which were inconsistent with the metric labels that was in

¶ [17] The Magistrate summarised the conduct at Paragraph 7: Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order: Mackellar (Iain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram: Dame Dobbs (Actg. Judge). Date: 9.03.2020 Page 7 of 47 ```
```markdown # Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order: Mackellar (Iain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram: Dame Dobbs (Actg. Judge). Date: 9.03.2020 Page 8 of 47

¶ [1] The defendant created false labels and trademarks bearing the Frontline Plus mark without Merial's authorization. These labels were placed on boxes by the defendant which he produced which was identical to the federally registered Frontline Plus trademark owned by Merial;

¶ [2] The defendant placed either counterfeit veterinary pesticide product or veterinary pesticide product not manufactured for sale in the United States or approved by the EPA into boxes bearing the counterfeit Frontline Plus marks;

¶ [3] The defendant applied the EPA registration number to the counterfeit Frontline Plus labelled boxes he created to falsely represent that the Frontline Plus products inside such boxes conformed to the specification for the United States version of the products and had been approved by the EPA, when in fact the products were manufactured for sale outside of the US;

¶ [4] The defendant intentionally trafficked in and sold Frontline Plus products manufactured for sale overseas in boxes with labels bearing counterfeit Frontline Plus marks for the purpose of deceiving US retail stores and consumers into believing that the Frontline Plus products contained therein were in fact manufactured for, and approved for sale in, the United States;

¶ [5] The defendant applied fraudulent EPA labels indicating that the goods were approved for administration to United States consumers by the EPA;

¶ [6] The defendant applied false lot numbers that were inconsistent with the lot numbers affixed to the product inside of the counterfeit boxes;

¶ [7] The defendant intended to deceive or confuse the customers in the United States of America;

¶ [8] The defendant imported these products into the USA for financial gain;

¶ [9] The defendant falsely represented to the US customs that the goods were donated as humanitarian aid to help Humane Societies owing to the hurricanes." ## SUBMISSIONS OF THE PARTIES

¶ [18] The main thrust of the Appellant's submission on appeal focussed on the alleged misleading statements in "The Request". In particular, it was contended that "The ```
```html 1 Request” had misrepresented the position by alleging that counterfeit product had 2 been supplied when the highest the First Respondent could put its case was that there 3 had been mispackaging of genuine products. The latter did not constitute an offence. 4 A number of extracts were cited to make the point about confusion. 5 19. In court, Mr Fitzgerald submitted that there needed to be more clarity in the 6 particulars; had they been clearer, the Magistrate would not have made her decision 7 on the basis that “either it was counterfeit product, or it was counterfeit packaging 8 and labelling”. Without clarity, it was difficult to deal with the extradition offences. 9 He proposed a form of positive assertions which he said would cure the confusion. 10 12. Mr Lewis, appearing on behalf of the First Respondent, submitted that the abuse of 13 process jurisdiction conferred a residual discretion once the bars to extradition had 14 been considered and would only occur in exceptional cases where the prosecutor was 15 acting in bad faith. There was clear evidence that the prosecution could succeed. The 16 pleas of guilty of the co-defendants who, it is said, will be witnesses against the 17 Appellant, were evidence of that. Moreover, a Grand Jury had issued an Indictment 18 against the Appellant and a warrant was issued as a result of the Indictment. 19 21. As for the alleged misleading statements, Mr Lewis submitted that the particulars in 20 “The Request” are clear. There was evidence of a consignment of counterfeit goods, 21 which is why both allegations were included. However, in order to simplify 22 proceedings, the Prosecution chose only to pursue the counterfeit packaging 23 allegations. 24 Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order: Mackellar (Iain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram: Dame Dobbs (Acting Judge). Date: 9.03.2020 Page 9 of 47 ```
Extradition offences ## 22. Forgery The Appellant submits that the Magistrate erred when she found that the offence of forgery was made out, because forgery is territorial. This point was not made in the court below. The First Respondent concedes that the offences under s.3(1) of the Merchandise Marks Law are territorial and that no offence is made out under them. However, the First Respondent relies on the provisions of s.3(2) which would have been available to the Magistrate to be satisfied by the particulars in "The Request". ## 23. Customs offence The Appellants point is a short one. It is that the Magistrate made a finding of a Customs offence, but this is dependent on the finding of forgery which would make the goods liable to forfeiture. If there is no forgery, there can be no Customs offence. Moreover, it is submitted that the goods were not imported clandestinely. The First Respondent contends that the Magistrate could have relied on s.3(2) of the Merchandise Marks Law and thus the error would not have led to discharge of the Appellant. The goods were clandestinely imported by virtue of the deceitful letter written by the Appellant giving the impression that the goods were a donation to assist in Humane Rescue following a hurricane. If it is an offence under s.3(2) of the Merchandise Marks Law, then it is prohibited under s.12(1)(c) of the Customs Law. ## 24. Deception The Appellant points to the fact that the only evidence of any money received by the Appellant was from the co-conspirators. The evidence shows that the Appellant was co-conspirator and was explicitly aware of the scheme. It is a fact that the goods were being sold to the Appellant. The evidence shows that the Appellant was aware of the scheme and was a co-conspirator. Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order: Mackellar (Iain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram: Dame Dobbs (Acting Judge). Date: 9.03.2020 Page 10 of 47
```html 1 and not a conspiracy. The Appellant was not party to any of the transactions between 2 the wholesalers, retailers or consumers. 3 4 The First Respondent relies on joint enterprise to make good the allegation, pointing 5 to the particulars of The Request which state that Target stores and customers were 6 sold the products and deceived. 7 8 25. Conspiracy to defraud. No economic harm was alleged to have been suffered by any 9 of the recipients of the products， the Appellant submits. No proprietary rights were 10 put at risk. No allegation was made that the goods were liable to seizure and there 11 was no sustained allegation that there was anything wrong with the product. 12 13 There was an agreement to deceive retail stores and consumers as to the authenticity 14 of the representations on the packaging， namely， that they were approved for sale in 15 the US and conformed to EPA standards. The Request so states， says the First 16 Respondent. Moreover， there was a risk to the interests of the retailers who stood to 17 lose their reputation and the goods， should they have been discovered in possession 18 of them. 19 Unjust and Oppressive to extradite 20 21 26. The Appellant submits that the Magistrate erred in finding that it was not unjust or 22 oppressive to extradite Dr MacKellar due to his serious medical condition. The 23 evidence showed that he suffered from end stage liver disease； his prospects of 24 survival without a liver transplant are very limited and he is at risk of life-threatening 25 complications which would require immediate as sp 26 ant ee that he and c 27 ry treatment. There Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order： Mackellar (Iain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram： Dame Dobbs (Actg. Judge). Date：9.03.2020 Page 11 of 47 ```
```html 1 27. Criticism was made of the vagueness of the evidence of Phillip Allen of the Federal 2 Bureau of Prisons whose evidence the Magistrate accepted, who, it was said, only 3 focussed on post-trial detention. 4 5 28. Reliance was placed by the Appellant on the evidence of Philip Wise, a former 6 Deputy Head of the Federal Bureau of Prisons, who indicated that there was a real 7 risk of detention in a non-federal county jail pre-trial; that the level of care in a 8 federal facility pre-trial would be basic and that there would be no assurance of 9 placement in a specialist facility. Moreover, the Bureau of Prisons had only 10 conducted one liver transplant in its history. Dr MacKellar's prospects of receiving 11 even an evaluation for a transplant was highly unlikely. 12 13 29. Michael Wynne, a former Assistant US Attorney for the Southern District of Texas, 14 also relied on by the Appellant, concluded that it was highly likely that the US 15 prosecutors would seek Dr MacKellar's detention and that any magistrate in the 16 Southern District of Texas would order Dr MacKellar to be detained pending trial. 17 As will be seen later, the former assertion is incorrect. 18 19 30. The Appellant also submitted that the evidence of Mr Allen was limited to post 20 conviction only and that therefore the court was in no position to be satisfied as to 21 the facilities available in local prisons pre-trial because pre-arrangements came 22 under a different jurisdiction. 23 24 31. Mr Lewis, on behalf of the First Respondent, citing the case of Dewani v 25 of the Republic of South Africa' 26 1(2012) EWHC 842(Admin) at Paras 73-4 Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order: Mackellar (Iain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram: Dame Dobbs (Actig. Judge). Date: 9.03.2020 Page 12 of 47 ```
```html 1 from case to case. Citation of cases which rehearse the test or apply the test to the 2 facts of those particular cases was to be strongly discouraged. 3 4 32. The First Respondent submits that the Magistrate’s decision was unimpeachable; she 5 took into account all the evidence of the experts. Mr Lewis pointed out that the court 6 needed to focus on the word “oppressive” as “unjust” referred to the trial process 7 which was not relevant in this case. 8 Flagrant denial of justice 9 10 33. This is a new ground for which permission is needed. The First Respondent objects 11 to permission being granted. There was agreement however that full submissions 12 should be made rather than seek piecemeal rulings from the Court. 13 14 34. The Appellant submits that the US court’s sentencing practice of taking into account 15 “relevant conduct” not proved at trial to increase the sentence was manifestly unfair 16 because: 17 18 a. of the lower burden of proof, 19 b. acquitted conduct can be taken into account; 20 c. hearsay may be taken into account; 21 d. there is no safeguard of a jury; and 22 e. no right to confront the witness. 23 24 The statements of Eric Lewis and Brent Newton are relied in support of the 25 contention. 26 Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order: Mackellar (Iain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram: Dame Dobbs (Actg. Judge). Date: 9.03.2020 Page 13 of 47 ```
```html 1 35. Relying on the case of Othman v UK2, the Appellant submits that although the test 2 in respect of “a flagrant denial of justice” is a high one, the risk of suffering a greatly 3 increased sentence on the basis of unproven conduct without safeguards, justifies 4 refusal of extradition on Article 6 “Fair Trial” grounds. 5 36. The First Respondent submits that, if the approach taken by the US courts does not 6 7 breach the specialty rule, which the case of Welsh v SSHD3, held that it did not, there 8 can be no “flagrant denial of justice”. The court was asked to note that Welsh has 9 been consistently approved, for example, in Barnes v US4. Reliance is also placed 10 on the case of EM (Lebanon) v SSHD5, where Lord Bingham cites with approval a 11 passage from the case of Mamatkulov and Askarov v Turkey6, in support of the 12 proposition that the test is whether “there is a real risk that the defendant’s right to a 13 fair trial will be completely denied or nullified”. 14 Prejudice on grounds of foreign nationality 15 16 37. This new ground also needs permission. The Appellant’s submission can be shortly 17 stated. Section 81(b) of the 1972 Treaty provides a bar to extradition if the Requested 18 Person might be prejudiced at his trial or punished or detained or restricted in his 19 persona liberty by virtue of his nationality. The declaration of Michael Wynne states 20 that the mere fact that the Appellant is a foreigner who has resisted extradition will 21 greatly prejudice his chances of release on bail and increase the likelihood of pre- 22 trial incarceration. Additionally, as a foreigner, it is said that the Appellant will be 23 less likely to receive compassionate early release. ``` ```latex \section{Prejudice on grounds of foreign nationality} This new ground also needs permission. The Appellant's submission can be shortly stated. Section 81(b) of the 1972 Treaty provides a bar to extradition if the Requested Person might be prejudiced at his trial or punished or detained or restricted in his persona liberty by virtue of his nationality. The declaration of Michael Wynne states that the mere fact that the Appellant is a foreigner who has resisted extradition will greatly prejudice his chances of release on bail and increase the likelihood of pre-trial incarceration. Additionally, as a foreigner, it is said that the Appellant will be less likely to receive compassionate early release. \begin{table}[h] \centering \begin{tabular}{|c|c|c|} \hline 1 & 35. & Relying on the case of Othman v UK2, the Appellant submits that although the test \\ & & in respect of “a flagrant denial of justice” is a high one, the risk of suffering a greatly \\ & & increased sentence on the basis of unproven conduct without safeguards, justifies \\ & & refusal of extradition on Article 6 “Fair Trial” grounds. \\ \hline 5 & 36. & The First Respondent submits that, if the approach taken by the US courts does not \\ & & breach the specialty rule, which the case of Welsh v SSHD3, held that it did not, there \\ & & can be no “flagrant denial of justice”. The court was asked to note that Welsh has \\ & & been consistently approved, for example, in Barnes v US4. Reliance is also placed \\ & & on the case of EM (Lebanon) v SSHD5, where Lord Bingham cites with approval a \\ & & passage from the case of Mamatkulov and Askarov v Turkey6, in support of the \\ & & proposition that the test is whether “there is a real risk that the defendant’s right to a \\ & & fair trial will be completely denied or nullified”. \\ \hline 14 & & Prejudice on grounds of foreign nationality \\ \hline 15 & 16 & 37. This new ground also needs permission. The Appellant’s submission can be shortly \\ & & stated. Section 81(b) of the 1972 Treaty provides a bar to extradition if the Requested \\ & & Person might be prejudiced at his trial or punished or detained or restricted in his \\ & & persona liberty by virtue of his nationality. The declaration of Michael Wynne states \\ & & that the mere fact that the Appellant is a foreigner who has resisted extradition will \\ & & greatly prejudice his chances of release on bail and increase the likelihood of pre-trial \\ & & incarceration. Additionally, as a foreigner, it is said that the Appellant will be less \\ & & likely to receive compassionate early release. \\ \hline \end{tabular} \caption{Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order: Mackellar (Iain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram: Dame Dobbs (Actg. Judge). Date: 9.03.2020} \end{table} ```
```markdown The First Respondent objects to permission being granted, but by way of response contends that refusal of bail would not be on the basis of being a foreign national, but because of lack of community ties and thus considered a greater flight risk. ## THE LAW: TEST ON APPEAL ### Court’s powers on appeal under Section 103 of the Extradition Act 2003 (Overseas Territories) Order 2016. #### Section 104 – Court’s powers under s.103 (1) On an appeal under section 103 the Supreme Court may— (a) allow the appeal; (b) direct the judge to decide again a question (or questions) which he decided at the extradition hearing; (c) dismiss the appeal. (2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied. (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. (5) If the court allows the appeal it must— (a) order the person’s discharge; (b) quash the order for his extradition. (6) If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. If the judge comes to a different decision on any
```html 1 40. Important points to note are that the scheme allows for an appeal on law or fact, but 2 only with leave. The relevant decisions under the Order are s.78(4)(b) of the Order 3 (Extradition Offence) and s.91 of the Order (Physical or Mental Condition). The test 4 under s.104 is a two-part test. The court must be satisfied that the Magistrate ought 5 to have decided the extradition case differently and, if it had been decided differently, 6 discharge would be ordered. Only conduct relied on in “The Request” can be looked 7 at: Office of the King’s Prosecutor, Brussels v Armas and others7. Moreover, the 8 information contained in the warrant must be taken at face value: Zakrzewski v 9 Regional Court in Lodz8. 10 11 DISCUSSION AND DECISION 12 Abuse 13 41. In her Ruling the Magistrate set out counsel’s competing arguments; she considered 14 a number of authorities before setting out the hurdles which have to be overcome 15 before an argument of abuse can arise, as identified in the case of Zakrzewski v 16 Poland9. Her reasons for dismissing the abuse argument are set out in Paragraph 47 17 of the Ruling. 19 20 21 22 23 24 25 26 27 28 29 30 31 In relation to the abuse argument, the narrow issue is whether or not the description of the conduct is inaccurate or misleading such that it amounts to an abuse of process. There is no question that the goods were not manufactured for the USA and that it did not have EPA approval and that the packaging was misleading. This is the conduct relied on. I do not accept that the conduct described is false and misleading, nor do I accept that the statement by the DPP in bail proceedings creates further ambiguity. Ms Lowery clearly stated that “all veterinary products sold by was either authentic or markets but reproducted many defendants counterfeit factured for foreign mackaged w or. 7[2005] UKHL 67 at Para.16 8[2013] 1 WLR 324 at Paras. 6 and 8 9[2013] 1 WLR 324 Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order: Mackellar (Jain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram: Dame Dobbs (Actg. Judge). Date: 9.03.2020 Page 16 of 47 ```
```html 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 42. I do not accept the argument put forward by counsel for the defendant that the facts are inaccurate and misleading and the people were not deceived. The request is clear that persons were deceived." 43. The allegation of misleading and confusing particulars focussed criticism on the Prosecution putting the case on two bases-namely, actual counterfeit goods or counterfeit packaging, when it is contended that this is a packaging case. 44. Mr Fitzgerald acknowledged the high hurdle to be overcome in abuse of process submissions and although he did not explicitly abandon the ground, the very fact that he proposed a formula of words to correct the confusion in itself speaks volumes as to whether this really is an abuse argument. 45. The first iteration proposed by him to cure the confusion was a series of positive assertions-namely that i) the pesticide contained in the vials were made by Merial; that the same pesticide therein was also identical to that approved for sale in the US; that the same size and volume of the vials were the same as the package of only the package of only the package of only the package of only the package of only the package of only the package of only the package of only the package of only the package of only the package of only the package of only the package of only the package of only the package of only the package of only the package of only the package of only the package of only the package of only the package of only the package of only the package of only the package of only the package of only the package of only the package of only the package of only the package of only the package of only the package of only the package of only the package of only the package of only the 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```html 1 46. During legal submissions the court pointed out that such an approach was 2 3 impermissible, in light of the authorities, namely, that the particulars of"The 4 Request" have to be taken at face value. Mr Fitzgerald then suggested a different 5 formula. This was that the particulars did not allege that a) the liquid was counterfeit, 6 b) the lot numbers on the vials and blister packs were not genuine; c) the wholesalers 7 (the co-conspirators) who received the packages were deceived. 8 9 47. Whilst Mr Fitzgerald was able to point to one or two passages where the language 10 was arguably ambiguous, standing back and looking at the conduct as a whole10, 11 there can be no uncertainty as to what the allegations were. 12 13 48. The Appellant has pointed to no clear examples of bad faith, manipulation or abuse 14 of process. That is because there are none. On the contrary, the First Respondent 15 took a pragmatic approach for simplicity's sake by only proceeding on the packaging 16 allegations, despite the fact that there is clear reference in"The Request" of 17 counterfeit products being discovered in one consignment seized. 18 19 49. In summary, I find: 20 21 a. That there was evidence of offences triable in the US; 22 b. There was no bad faith on the part of the First Respondent; and 23 c. The descriptions of the offences in"The Request" are not confusing. 24 There is no merit in the criticism of the Magistrate's findings and consequently leave 25 to appeal on the fused. 26 26 10(see Para. 15 above) Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order: Mackellar (Jain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram: Dame Dobbs (Actg. Judge). Date: 9.03.2020 Page 18 of 47 ```
Extradition offences ## FORGERY

¶ [50] Paragraph 49 of the Magistrate’s ruling covers the false packaging allegations. The Magistrate does not deal with the jurisdictional point as it was not raised before her. She concluded that forgery of a trademark applies in the Cayman Islands and that it comes under the Merchandise Marks Law, in particular s.3(1)(a) which deals with forgery of a trade mark and s.3(1)(b) which deals with the application of a false trade mark to goods. She did not mention s.3(2) of the Law, despite it being set out in the skeleton argument of the First Respondent at Paragraph 24(3).

¶ [51] The First Respondent concedes that the forgery offences are territorial in application and that the Magistrate was in error. The issue therefore is whether the error would have led to a different conclusion and consequently discharge by the Magistrate. In my judgment it would not. Section 3(2) of the same law creates an offence of selling, exposing or having in a person’s possession for sale or any purpose of trade or manufacture any goods or things to which any forged trademark or false trade description as to be calculated to deceive has been applied.

¶ [52] I do not accept the submission of the Appellant that s.3(2) is parasitic on the preceding provisions relied on by the Magistrate. It is the selling or having for sale which is the territorial point. As a matter of common sense, if the Appellant’s submissions were correct, it would mean that counterfeit goods could be traded lawfully in islands so long that cannot have been the intention of the legislature.
```html 1 offend the spirit of s.14 and s.15 of the same Law. I find that although part one of 2 the test is satisfied, part two is not. 3 CUSTOMS OFFENCE 4 53. As the Magistrate concluded at Paragraph 50 of her Ruling that the forgery of the 5 trademark applies in Cayman, she held that the Customs Law provisions applied and 6 found that the goods were “prohibited goods” under s.53(a) and liable to forfeiture 7 because of the forged trademarks. 8 9 10 54. The Magistrate found that the fact that the goods were zero rated was irrelevant 11 because Customs law requires fair and accurate declarations of the goods which they 12 were not; additionally, they were clandestinely imported because of the misleading 13 letter addressed to US customs in relation to the hurricane relief. She also found that 14 there was clear evidence of dishonesty and intend to defraud or misrepresent to the 15 Customs authorities. 16 17 55. Section 53(a) of the Customs Law reads: 18 19 20 21 22 23 24 25 26 27 28 29 30 Smuggling 53. A person who- (a) clandestinely brings into the jurisdiction prohibited, restricted or any description of goods (other than goods exempt from the Customs process); commits the offence of smuggling such goods into or out of the Islands, as the case may be." It is conceded by the First Respondent that the Magistrate erred in her finding that Customs Law applied by virtue of her findings in relation to the forgery. The same question arises/ould the ermcclusion and or therefore disch judgment i eca relied on s.3(2) which creates an offence which renders the goods prohibited. The Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order: Mackellar (Iain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram: Dame Dobbs (Actg. Judge). Date: 9.03.2020 Page 20 of 47 ```
```html 1 evidence of the misleading letter was sufficient to satisfy the "clandestinely" 2 imported provision. 3 DECEPTION 57. The Magistrate deals very briefly with this offence in Paragraph 51. She refers to Paragraph 11 of the Indictment indicating that the scheme was to defraud and obtain money by deception. Paragraph 11 of the Indictment set out the particulars of the conspiracy which involved a number of different offences, including the obtaining of money by making false representations. 58. As a result of this brevity, the Magistrate failed to give close scrutiny to basis of the First Respondent's case, namely, joint enterprise - although it is not clear that this was spelled out in the Court below. If she had done, she would have identified a number of problems with this approach. The particulars of "The Request" do not spell out that the Appellant aided and abetted the obtaining of the money by the co- conspirators by deception. It merely asserts that retailers and customers were deceived. The substantive offence against the Appellant would have to show that he obtained money by a false representation. There is force therefore in the Appellant's argument that those from whom he obtained money, namely the co-conspirators were not deceived. This is clear from the particulars in "The Request". Nor could a chain of causation be shown which linked any operative deception that the Appellant may have been a party to and any obtaining by him. 59. issions the coer the Appel lant conceded During submout asked wll that there w evidence of to obtain 26 concession I 25 evidence of 27 and that the court should not infer a conspiracy from the particulars. Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order: Mackellar (Iain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram: Dame Dobbs (Actg. Judge). Date: 9.03.2020 Page 21 of 47 ```
```html 1 60. I disagree. There is clear evidence of a conspiracy to obtain property by deception, a statutory conspiracy which is available in the Cayman Islands. I find therefore that although the Magistrate erred in finding that there was a substantive offence disclosed, the outcome would not have been different, as it was open to her to find a statutory conspiracy from the particulars. 7 CONSPIRACY TO DEFRAUD 8 9 61. In Paragraphs 51-2 the Magistrate dealt with conspiracy to defraud. 10 11 62. As noted above, she referred to Para 11 of the Indictment noting that the scheme was to defraud as well as obtain money by false pretences. She said further: 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 64. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 65. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 66. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 67. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 68. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 69. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 70. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 71. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 72. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 73. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 74. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 75. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 76. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 77. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 78. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 79. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 80. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 81. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 82. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 83. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 84. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 85. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 86. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 87. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 88. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 89. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 90. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 91. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 92. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 93. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 94. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 95. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 96. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 97. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 98. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 99. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 100. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 101. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 102. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 103. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 104. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 105. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 106. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 107. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 108. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 109. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 110. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 111. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 112. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 113. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 114. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 115. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 116. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 117. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 118. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 119. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 120. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 121. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 122. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 123. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 124. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 125. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 126. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 127. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 128. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no 129. Int, the Magis the error fund of con the Magistrat the test for as this gro not material the both par There is no
```markdown # Flagrant Denial of Justice

¶ [64] I turn to deal with the two new grounds raised before dealing with Ground Three "Unjust and Oppressive". Relying on the evidence of Brent Newton (a former Deputy Director of the US Sentencing Commission) and Eric Lewis (attorney) for which permission to adduce is sought, the Appellant submitted that the sentencing regime following conviction in the US, means that Dr MacKellar's sentence could be more than double the sentence he would receive for an individual offence.

¶ [65] Mr Fitzgerald concedes that the point was not thought of until consideration was being given to the issue of specialty under the Governor's appeal. However, he submits that if there is a reasonably arguable case, then the fact it was not raised previously is irrelevant. He accepts that the case of Welsh v SSHD 11 is against him. He reminds the court that it is not bound by Welsh. He contends that even if Welsh found that the US sentencing regime did not breach specialty, there could still be a real risk of a flagrant denial of justice. Mr Fitzgerald further argued that the case of Welsh was wrongly decided, and that leave should be given to allow the Appellant to test the point in a higher court. Mr Fitzgerald furnished the court with a copy of Counsel's submissions in that case to the House of Lords, which, it should be noted, refused to certify a point of law of public importance.

¶ [66] The appellants were convicted of 88 offences under UK laws of a nature not all of which identified to be extraditable. The 88 offences were under UK laws of a nature not all of which identified to be extraditable. The 88 offences were under UK laws of a nature not all of which identified to be extraditable. In Welsh, there was an order that the 88 offences were under UK laws of a nature not all of which identified to be extraditable. The 88 offences were under UK laws of a nature not all of which identified to be extraditable. The 88 offences were under UK laws of a nature not all of which identified to be extraditable. ``` 11 [2007] ! WLR 1281 Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order: Mackellar (Iain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram: Dame Dobbs (Actg. Judge). Date: 9.03.2020 Page 23 of 47 ```
```html 1 included as it did not satisfy the double criminality test. The appeal centred on the 2 contention that the Appellants, once in the US, would be dealt with in breach of the 3 specialty rule by further indicting and trying them for offences which did not form 4 part of"The Request" for which they could not have been extradited. Moreover, the 5 Prosecutor would use evidence relating to non-extraditable offences to prove the 6 extraditable offences and, following conviction, to justify increasing the sentence. 7 8 67. The Divisional Court found inter alia that: 9 10 a. the speciality rule did not limit the evidence which could be admitted to prove 11 the extradition offence; that the rules of evidence were those of the Requesting 12 State and that the specialty rule would not be breached if the US courts allowed 13 an extradition offence to be proved by evidence relating to offences upon 14 which the extradition had been expressly refused; (Paras. 89 and 99). 15 16 b. in relation to extradition and punishment under Section 95 of the Extradition Act 17 2003, a purposive and flexible approach should be taken which must be capable 18 of accommodating the reasonable range of sentencing practices and values 19 which other countries adopted; (Para. 136) 20 21 c. whilst the US practice might range more widely than would the United Kingdom 22 in dealing with a convicted person, it still did not amount to punishing him 23 otherwise than for the crime of which he had been convicted. (Para.139). 24 25 68. Mr Fitzgerald drew the court's attention to a couple of examples to show, that 26 although it is me ever winsant denial of Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order: Mackellar (Jain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram: Dame Dobbs (Actg. Judge). Date: 9.03.2020 Page 24 of 47 ```
```html 1 justice", more recent cases show a shift of approach. The cases cited were Othman 2 v UK12 and Government of Rwanda v Nteziryayo and others13. 3 4 69.The Applicant in the case of Othman was born in Jordan and was given refugee status 5 in the UK. However, when he applied for indefinite leave to remain, he was arrested 6 under Anti-Terrorism legislation as he had been convicted in Jordan in his absence 7 of a terrorist offence. The Home Secretary served notice of intention to deport. The 8 case eventually went to the European Court of Justice, the issues being inter alia, 9 whether return to Jordan would subject Othman to inhuman or degrading treatment 10 or punishment, breach of fair trial rights and right to liberty and security. The 11 Divisional Court found that the Applicant should not be returned to Jordan because 12 there was compelling evidence before the court that the Applicant's co-defendants 13 had been tortured. 14 15 70.At Paragraph 258, the court highlighted that its approach to "flagrant denial of 16 justice" had been synonymous with a trial which is manifestly contrary to the 17 provisions of Article 6 or the principles embodied therein. Examples of such cases 18 were given. The examples are a long way from the facts of this case. At Paragraph 19 260, it was noted that the examples given served to underlie the Court's view that 20 the "flagrant denial of justice" is a stringent test of unfairness, going beyond mere 21 irregularities or lack of safeguards in the trial procedures such as might result in a 22 breach of Article 6 in the Contracting state itself. What is required is a breach of the 23 principles of Article 6 which is so fundamental as to amount to a nullification, or 24 the very destruction of the very essence of the right guaranteed by the article. ```
The case of *Nteziryayo* was an appeal by the Rwandan government against the decision of Deputy Senior Judge Arbuthnott declining to order the extradition of the five Appellants to Rwanda on the grounds that their Article 6 rights would be breached. The appeal failed on the basis of the inadequacy of arrangements for defence, coupled with a jurisdiction where judicial independence is institutionally weak and has been compromised in the past and where there is fear by witnesses not all of which can be countered. All this could lead to serious miscarriages of justice. The test set out in *Othman* on “flagrant denial of justice” is a very stringent one. So far as specialty is concerned, the case of *Welsh* and those following it plus cases in the US have considered the issue of sentencing. They are all against the Appellant. I apply the principles in those cases. It is important to identify what a US judge has to be satisfied of before sentence can be increased. First of all, the judge can only take into account “relevant conduct”. This chimes with the comments of Lord Justice Laws in the case of *Barnes*¹⁴ who, at Paragraph 11 of the Judgment, noted that there should be a reasonable nexus between the extradition crime and the extraneous behaviour sought to be relied on for the purposes of sentencing; such behaviour exacerbating the gravity of the extradition offence because it may demonstrate propensity, planning, professionalism or sheer determination. This first hurdle it seems to me necessarily limits the ambit of evidence that can be considered. Secondly, the US judge can only do so on “the preponderance of the evidence using iat has sufficiability”. So there is another information thatt indicia offer safeguard. ¹⁴ [2011] EWHC 2218 (Admin) Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order: Mackellar (Iain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram: Dame Dobbs (Actg. Judge). Date: 9.03.2020 Page 26 of 47
```html 1 in that the judge has to look at the reliability of the evidence, albeit on the civil, not 2 the criminal, standard of proof. 3 75. What safeguards does the Appellant have? He has counsel who can: 4 5 6 a. negotiate with the Prosecution to persuade them not to lead evidence of other 7 conduct; 8 b. make objection to the admission of the evidence by demonstrating the 9 unreliability of the evidence - such as in this case, the evidence of the co- 10 conspirators and their motive to lie and put the blame on the Appellant; 11 c. test and probe what evidence is put forward by the prosecution even if not live 12 evidence d) present evidence to rebut the prosecution or other evidence and 13 d. make final submissions in relation to what mitigation might be available. 14 15 16 76. These are all safeguards one would expect under Article 6 fair trial rights. 17 In my judgment the facts of this case come nowhere near establishing a real risk that 18 the Appellant’s Article 6 rights would be nullified under the sentencing regime in 19 the US. Mr Fitzgerald’s plea that leave should be given in order for the point to be 20 taken to a higher court, sits uneasily with the need for a speedy determination of the 21 Appellant’s case in light of his serious medical condition. I have implicitly allowed 22 the ground to be argued fully, albeit it was a point that could have been argued at the 23 Magistrate’s court. The fact that it was not, may in itself be telling. I find that the 24 ground has no reasonable prospect of success and accordingly leave is refused. 25 Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order: Mackellar (Iain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram: Dame Dobbs (Actg. Judge). Date: 9.03.2020 Page 27 of 47 ```
Prejudice on Grounds of Nationality.

¶ [77] The second new ground raised is a short one, namely that the Appellant will be prejudiced by virtue of his nationality in relation to bail and serving of his sentence should he be convicted.

¶ [78] A US judge when considering bail, will, like in the UK consider flight risk. No community ties in the particular state, city or town is likely to be found to increase the risk of flight, however, no doubt a similar approach would be taken to an individual from another US state if they had no community ties. In my judgment, it is the lack of ties which is the deciding factor, not nationality.

¶ [79] So far as the evidence of Mr Wynne that there would be no commutation of sentence, it was confirmed in court that there are special extradition arrangements in place whereby the Appellant, were he to be convicted, could serve a significant portion of his sentence in the Cayman Islands should he so wish. I find therefore that this ground has no merit. There is no good reason why it could not have been taken at the Magistrate’s court. Accordingly, permission to advance it is refused. ## "Unjust and Oppressive"

¶ [80] I deal with this ground last for reasons which will become apparent. The Magistrate dealt with her findings from Paragraphs 54 – 58. Her reasons are as follows:

¶ [54] I now turn to the s.91 argument. I have been pressed by the defence to find that because of the defendant’s critical condition, I should adjourn the matter and d that it is unjust and oppressive not to extradite the defendant. I accept that he is suffering from end stage liver disease
```html 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 55. 56. 57. - I accept that his prognosis is that he will eventually need a liver transplant - not available here - I accept that he will require specialised treatment - treatment not available here - I do not accept that he will not be able to access the medical treatment he needs. In fact Ms Lowery stated that his medical condition would be given special consideration when making determinations as to detention. Dr Beraha herself has confirmed that whilst she is his primary caregiver here, the transferral of his case would not be a hurdle. Indeed, it is often the case in this jurisdiction that cases are transferred easily when care is transferred. As such, I reject the argument that he needs to be with persons who know his care treatment. Dr Beraha also conceded that if Dr Allen is correct in his statement as to treatment and care access then he would not be any less off there than here". Defence Counsel has submitted that there is a real risk that he will deteriorate in the pre-trial period with less control of his physical and mental functions if he is in unfavourable conditions. As is known, the test is not the risk of prejudice. The test is if it would be impossible for him to have a fair trial. I find that there are sufficient safeguards in place in the USA to ensure that the defendant gets treatment - indeed far more than available here. I also find that there are safeguards as to the possibility of a fair trial. The matter has been known and being challenged since 2015 by the defendant. I do not accept the he will not be able to instruct attorneys and prepare for his case should he be returned to the USA. The matter is not new to the defendant. His co-conspirators have all been sentenced. He has the resources to attend to his medical and legal issues. I realise that it may appear harsh that a man in his condition should be extradited. But I consider if in his medical condition he would be prosecuted in the Cayman Islands for offences which whilst not at the gravity of murder (as his Counsel submits) is still a serious crime, and where profit was made due to acts of forgery and deception and where others have been sentenced. If he would or might be prosecuted in the Cayman then it cannot be oppressive to extradite him unless it is clear his medical condition cannot be or adequately treated in the US. I conclude that s.91 would only become relevant if I was satisfied that the US Court could not act properly. I find that the US can properly manage seriously ill defendants. Further I find that there is no point in an adjournment as without a liver transplant the defendant would not be in a better position than he is in now. He in Cayman. I cannot get c USA, I cannot be one ot In conclusion I find that the medical evidence does not reach the high threshold of unjust and oppressive." Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order: Mackellar (Iain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram: Dame Dobbs (Actg. Judge). Date: 9.03.2020 Page 29 of 47 ```
The main thrust of the submission is that the Magistrate erred in her findings by ignoring the evidence given on behalf of the Appellant and also giving no proper consideration to the pre-trial custodial position which is under a different jurisdiction, not the Bureau of Prisons which is the only aspect Mr Allen dealt with. Mr Wise was at complete odds with the evidence of Dr Allen. He gave evidence that it was highly unlikely that Dr MacKellar, even if housed in a Bureau of Prisons Federal prison, would receive an evaluation for a liver transplant. There was also criticism of the Magistrates' failure to consider the updated medical condition of Dr MacKellar following the deterioration of his condition in July 2019. ### DISCUSSION AND DECISION OF THE MAGISTRATE'S FINDING The Magistrate, when coming to the conclusion that there were sufficient safeguards in place in the USA to ensure that Dr MacKellar would receive medical treatment, gave no reasons for preferring the evidence of Mr Allen over Mr Wise. This is important when there is a conflict in the evidence. Moreover, in Paragraph 55 of her decision, although she referred to the "pre-trial period," she only dealt with the Dr MacKellar's ability to have a fair trial. This related to his ability to properly prepare for his trial in custody. She did not deal with the issue raised about the difference between pre-trial and post-conviction detention. She was wrong not to have done so given the submissions made. I will deal with the effect of this error when I consider the up-to-date medical evidence. As already noted, a related issue raised by the Appellant, is that of the Magistrate's failure to consider the new medical evidence since the deterioration of Dr MacKellar's condition. The Magistrate had handed down her decision. In a note at the beginning of her decision, Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order: Mackellar (Iain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram: Dame Dobbs (Actg. Judge). Date: 9.03.2020 Page 30 of 47
The Magistrate apologised for the delay in issuing her decision which was due to illness and previous commitments. Her decision was ready for handing down on 30th August, but Counsel for Dr MacKellar had commitments. She noted that Dr MacKellar’s health had not been stable and said that there had not been an opportunity to explore the reasons for it and so restricted her decision to the evidence before the court at the time of the hearing.

¶ [84] Such decisions are for the exercise of the court’s discretion, but the discretion has to be exercised appropriately and with foundation, especially, as here, the decision could have been determinative of the case.

¶ [85] Although she gave no reasons for why there was no opportunity to explore the reasons for Dr MacKellar’s deterioration, the Magistrate may have had concerns about the cost and practicalities of all parties convening in the Cayman Islands for a hearing. In fact it is not unusual for hearings in the Cayman Islands to be conducted using the Zoom or other facility. This means that leading Counsel and any expert from the UK could attend by Video conference, witnesses could be called and submissions made. Dr Finkelberg is a regular visitor to the Cayman Islands as Dr MacKellar’s treating physician. He could have given evidence in person or remotely. Additionally, and importantly, it should be noted that there had been no challenge of substance to the evidence about Dr MacKellar’s actual medical condition. It was unlikely therefore, that there would to be any need to testing the new evidence. (There has been none subsequently). In those circumstances, written evidence and submissions would have sufficed. In my judgment the Magistrate’s decision not to consider the medical evidence was wrong. Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order: Mackellar (Iain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram: Dame Dobbs (Actg. Judge). Date: 9.03.2020 Page 31 of 47
THE EVIDENCE ON APPEAL

¶ [86] However, things have moved on since the Magistrate handed down her decision. Dr MacKellar's condition has, as predicted, worsened. It is agreed that the court on appeal, when considering whether it would be "oppressive" to extradite Dr MacKellar, can consider the medical evidence of Dr MacKellar's current condition. I now turn to that evidence.

¶ [87] Professor Moore is Professor of Hepatology at University College London, Royal Free campus. He gave evidence both before the Magistrate and at the Appeal hearing.

¶ [88] Professor Moore told this court that Dr MacKellar has advanced cirrhosis of the liver known as end stage liver disease. He is on a cocktail of medication. He has, since early 2018 when the condition was diagnosed, developed complications, including ascites (which is fluid in the abdomen) oesophageal varices (dilated veins in the oesophagus), 2 episodes of hepatic encephalopathy in July 2018 (toxins bypassing the liver causing sleepiness, confusion, and ultimately coma and death) and chronic kidney disease. The July incidents were indicators of the severity of his condition and a sign that the liver disease is getting worse.

¶ [89] Dr McKellar is in an immuno-compromised state. This means he carries a much higher risk of developing common bacterial infections than normal. Professor Moore stated that Dr MacKellar's health is in a precarious state. He described Dr MacKellar as "walking on a knife edge". Any simple knock such as a bacterial infection is likely to push him into a spiral of acute on chronic liver failure (this is the term for acute liver failure after a deterioration in liver function). This has a 50% 3-month mortality rate. Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order: Mackellar (Iain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram: Dame Dobbs (Acting Judge). Date: 9.03.2020 Page 32 of 47
```html 1 90. Based on tests in August 2019, Dr MacKellar has a 18-20% risk of death at 12 2 months without a liver transplant. His condition will gradually worsen over time with 3 a shortened life expectancy. 4 5 91. Dr MacKellar is presently receiving regular reviews by Dr Finkelberg every 3-4 6 weeks. 6 monthly scans are needed and regular blood tests to check kidney function. 7 8 9 Anything less intense than the present regime would result in complications, the 10 main risks being bacterial infection. The complications need to be attended to 11 92. immediately as they could lead to death. 12 Professor Moore’s statement dated 16th November which he adopted in evidence, 13 deals with Dr MacKellar’s recent presentation to hospital on 8th November 2019 with 14 a fever and painful red right leg. The diagnosis was cellulitis. The results of the blood 15 tests showed an increase in the MELD test, (a widely accepted score of mortality for 16 this condition) to 17 and UKELD score, another measure, to 54. 17 93. Professor Moore drew the court’s attention to some research done of some patients 18 19 20 21 22 23 24 25 26 27 28 Professor Moore also noted that patients with cirrhosis are 5 times more likely to 29 pick up an infection in hospital. The risks of living in close proximity with a lot of 30 people would increase the risk. He would consider that there was a similar increased 31 infection, the is high. 32 MacKellar an 33 comparison. If L w 34 other 35 risk of defection in 36 pr 37 ere to get Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order: Mackellar (Iain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram: Dame Dobbs (Actg. Judge). Date: 9.03.2020 Page 33 of 47 ```
```html 1 95. Professor Moore's prognosis is that Dr MacKellar is likely to die in the next 12 2 months unless he receives a liver transplant. If he were to receive a liver transplant, 3 he would need a care package lasting several months. The risk of developing post- 4 operative infections is particularly high in the first few months and then it gradually 5 reduces over about 12 months. One to two years after the transplant, the risk of 6 developing infections is considerably lower. The minimum period before Dr 7 MacKellar could return to an environment where there was an increased risk of 8 infection is 6 months but, ideally, not before a year. He confirmed that Dr MacKellar 9 would be eligible for a transplant on medical grounds. 10 11 96. Professor Moore had spoken to Dr Finkelberg who had said he would list Dr 12 MacKellar for transplant. However, it was not practically feasible for Dr Finkelberg 13 to prepare for the transplant in custody given the battery of different tests to be done 14 and specialists Dr Mackellar would have to see. 15 16 97. Dr Finkelberg was first instructed to conduct an assessment by the Cayman Island's 17 office of the DPP acting on behalf of the US government. He is now Dr MacKellar's 18 treating physician and visits the Cayman Islands from the US every 3-4 weeks to see 19 Dr Mackellar. His conclusion is that Dr Mackellar's present state of health is 20 concerning. Further deterioration of the disease is expected in the near future as 21 medical and behavioural treatment options have now been exhausted. He noted that 22 any interruption in the medical care of Dr MacKellar would likely result in rapid and 23 possible fatal deterioration of his end stage disease. Incarceration is likely to cause 24 further decline. He considered the acute duodenal ulcer to have been caused by stress 25 actors were ru 26 h addition to t 27 to provide basic care and follow up on medical issues, but patients with advanced Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order: MacKellar (Iain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram: Dame Dobbs (Actg. Judge). Date: 9.03.2020 Page 34 of 47 ```
```markdown liver disease who are at risk for rapid decompensation remain vulnerable. Cases of inmates being granted liver transplants are very rare in the US. He is of the same opinion as Professor Moore that the risk of dying without a transplant is high. THE UNDERTAKING

¶ [98] Before turning to consider the court’s decision, mention needs to be made of an event which changed the focus of the Appeal. On the first day of the hearing, the First Respondent told the court that it was prepared to give an undertaking in relation to Dr MacKellar making an application for bail if extradited. The court asked for a copy of the undertaking. At that stage nothing had been drafted. A first draft was produced the same day. The court expressed concern that the undertaking did not cover each stage from arrival in the US in custody to production before a magistrate, nor did it actively support Dr MacKellar’s application for bail. It was expressed in terms that it would not oppose it.

¶ [99] The First Respondent agreed to amend the application. The position now is that it now will now support any application for bail with conditions. The final version is reproduced below. DOJ UNDERTAKING

¶ [1] Upon surrender to the USA Dr. MacKellar will be accompanied by US Marshals and returned to Houston.

¶ [2] Upon arrival in Houston he will appear in the United States Magistrate Court (within three appearance before the Magistrate Court of the Cayman Islands before his surrender to the USA, or in the USA after his surrender, ```
```html 1 the DOJ will support bail on suitable conditions for the period pending, 2 during and for reasonable recovery after the transplant procedure. 3 4. The conditions that the DOJ expect to be included in any package are as 4 follows: 5 i. House arrest; 6 ii. GPS monitoring; 7 Third party custodian (a person responsible for his whereabouts 8 and will be responsible for the bond if he does not appear); and 9 iv. Substantial cash bond of US$1 million. 10 5. At the conclusion of the recovery period Dr.MacKellar will return to the 11 Magistrate Court； and detention and bail will be re-determined. 12 6. In the event Dr. MacKellar has not received approval for a liver transplant 13 the normal procedure will be followed and the DOJ reserve the right to 14 object to bail. 15 7. For the purposes of this Undertaking， 'approval for a liver transplant' 16 means that a registered medical practitioner has certified that Dr. 17 MacKellar is suitable for a liver transplant and is listed within the first 10% 18 of prospective recipients. 19 20 100. Mr Fitzgerald complained that the Undertaking given by the First Respondent was 21 sprung on the Appellant on the first day of the hearing without warning. He also 22 queried both the wording and the genuineness of the undertaking pointing to cases 23 in which he says undertakings given by the US authorities were found to be 24 uparticular， thase. He sub 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508 509 510 511 512 513 514 515 516 517 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540 541 542 543 544 545 546 547 548 549 550 551 552 553 554 555 556 557 558 559 560 561 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576 577 578 579 580 581 582 583 584 585 586 587 588 589 590 591 592 593 594 595 596 597 598 599 600 601 602 603 604 605 606 607 608 609 610 611 612 613 614 615 616 617 618 619 620 621 622 623 624 625 626 627 628 629 630 631 632 633 634 635 636 637 638 639 640 641 642 643 644 645 646 647 648 649 650 651 652 653 654 655 656 657 658 659 660 661 662 663 664 665 666 667 668 669 670 671 672 673 674 675 676 677 678 679 680 681 682 683 684 685 686 687 688 689 690 691 692 693 694 695 696 697 698 699 700 701 702 703 704 705 706 707 708 709 710 711 712 713 714 715 716 717 718 719 720 721 722 723 724 725 726 727 728 729 730 731 732 733 734 735 736 737 738 739 740 741 742 743 744 745 746 747 748 749 <
```html 101. It was also submitted that the Undertaking completely changed the case the Appellant had to meet. It meant the Appellant had to consider what needed to be done to deal with the change of circumstances. The other point made on behalf of the Appellant, was that even if the First Respondent does support the Appellant’s application for bail and the carrying out of a liver transplant, there is a serious risk that the judge will refuse as s/he is not bound by the Undertaking. 102. The following morning, Professor Moore made another statement based on information he had gleaned from the internet and from other professionals, including in the US. The thrust of the evidence was that even though Dr MacKellar would qualify for a liver transplant in the US, the waiting times were such, 18 months or so, that there was a significant risk that Dr MacKellar would die before obtaining the transplant. Professor Moore pointed to the fact that a transplant could be obtained in the UK more quickly - within a few months. 103. The First Respondent objected to this evidence, challenging Professor Moore’s expertise to give such evidence. As a result, the Appellant obtained a statement from Dr Alexander Gimson who compared the chances of Dr MacKellar getting a liver transplant in the US and the UK, in other words the relative waiting periods. The conclusion was similar to Professor Moore. 104. The figures were not accepted by the First Respondent and objection was taken to the evidence. This was the response. Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order: Mackellar (Iain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram: Dame Dobbs (Actg. Judge). Date: 9.03.2020 Page 37 of 47 ```
```html 105. In light of the prognosis, namely the significant risk of mortality without a transplant, the importance of having an accurate assessment of Dr MacKellar's chances of receiving a liver transplant became a live issue. Accordingly, the court gave the First Respondent time to consider and comment on the statistics provided by both Professor Moore and Dr Gimson and to call evidence if so advised. The court would be willing to re-convene whether in person or via Zoom, but only if strictly necessary given the court's own caseload, and if so, no later than 20th December 2019. The court encouraged Counsel to deal with the evidence/issue by way of written submissions. 106. The Applicant (not at the court's invitation) submitted further evidence and submissions on 10th December 2019. The First Respondent objected to the evidence and submitted that if the court was minded to accept the evidence, it wished to instruct an expert. Although efforts had been made to instruct an expert, due to governmental red tape, it had not been possible to do so. The First Respondent asked for submissions and evidence to be submitted by 24th January. 107. The Court, in a note, dated 19th December 2019, expressed its concern at the slow pace of the First Respondent, pointing out that the ruling on 20th November had been made for the benefit of the First Respondent, who, apparently, was in a position to rebut the evidence of Professor Moore and Dr Gimson. It was noted that the recent statements served by the Appellant, albeit more refined, made essentially the same point as Professor Moore and Dr Gimson. 108. Directions were made. The court suggested that the following were made. Ten until 17th January 2020 for the First Respondent to file any evidence and submissions. An obvious line of enquiry was with Dr Finkelberg, the treating physician, who could give the necessary evidence or recommend a colleague who could give such ```
The First Respondent was also directed to address the issue raised by the Court during the hearing about the relationship between Homeland Security (responsible for bringing the Appellant to the US in the event of extradition) and the First Respondent and to identify any limitations such a relationship would have on the effectiveness of the Undertaking. The Appellant was given until 31st January to respond. On 19th January 2020, 2 days after the deadline, the First Respondent filed its submissions. They can be stated shortly. The First Respondent objected to the issues raised, arguing that they were not related to the updated medical condition of the Appellant. The First Respondent had been unable to locate and finalise a suitable medical expert to deal with the evidence in the time available. It was contended that the issue of the transplant should have been taken in the court below and that the undertaking should be taken as being given in good faith. The Appellant had put up smoke and mirrors. The court should stand back and say that it cannot be unjust and oppressive to extradite him to a country where he can get a liver transplant. Any attempt by the Appellant to leave the Cayman Islands would cause the undertaking to be withdrawn and would no doubt result in Dr MacKellar’s incarceration in a foreign jurisdiction pending extradition to the US. The Magistrate’s decision that it was not unjust and oppressive to extradite Dr MacKellar should stand. Submissions were received from the Appellant’s lawyers in time. They submitted that the failure of the First Respondent to obtain any medical evidence within the 10 weeks which had elapsed could only lead to one conclusion – that the First Respondent was unable to find a suitable medical expert to deal with the evidence. This failure would coexist with the undertaking to fail. 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```html 1 formal and technical objections to prevent the court from taking into account the true 2 factual picture with the regard to the availability of liver transplants in the US. 3 4 111. The court was reminded that the issue arose because of the change of approach by 5 the US Government, (the proceedings in the court below concentrating solely on 6 treatment in custody)，there being no undertaking forthcoming from the First 7 Respondent at that time. 8 9 112. The Appellant also takes issue with the Undertaking and highlights the direction of 10 the court which，it is submitted，has been breached by the First Respondent's failure 11 to respond. 12 DISCUSSION AND DECISION 13 113. The court has already found that the Magistrate erred in her consideration of the issue 14 in a number of ways：- i) she failed to give reasons for why she was satisfied that 15 sufficient safeguards were in place in the light of conflicting evidence；ii) did not 16 consider the different regimes which exist pre-trial and post-conviction，the former 17 of which was not addressed by the evidence adduced by the First Respondent；she 18 conflated the pre-trial issues namely access to medical treatment during pre-trial 19 custody and ability to prepare for trial whilst in custody into a fair trial issue. The 20 court also found that the decision not to receive the further evidence of Dr 21 MacKellar's medical condition was wrong，in light of the fact that it could have been 22 decisive to the issue of whether it was "Unjust and Oppressive" to extradite. 23 24 Ff clarity，I do not understand the evidence relating to the condition of Iain MacKellar re 25 or the sake of consideration of the controversy of receiving a liver transplant in good time to be relevant and admissible. The 26 condition of Iain MacKellar and the 27 updated medical evidence Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order: Mackellar (Iain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram: Dame Dobbs (Actg. Judge). Date: 9.03.2020 Page 40 of 47 ```
The document is a legal judgment on the appeal of Dr. MacKellar's extradition to the United States. Below is the transcription of the page, adhering to the specified formatting guidelines: ```markdown

¶ [1] The suggestion that this evidence should not be admitted as being a new issue not related to Dr MacKellar's current medical condition is risible. The developments both during and after the hearing lie squarely at the First Respondent's door. The offering of the Undertaking was clearly in order to pull the rug from under one of the Appellant's submissions. Such a change of heart, from the refusal at the Magistrate's court to give an Undertaking, coupled with the discourtesy of not giving the Appellant's lawyers adequate notice of this fundamental change of approach, is to be deprecated.

¶ [9] 115. I turn to the question for this court in light of the updated medical evidence, namely, if it is "unjust and oppressive" to order the Appellant's extradition to the US? I focus on the word "oppressive" as "unjust" refers to process which is not relevant here. In my judgment it would be "oppressive" for the following reasons.

¶ [14] 116. The Undertaking is accepted as being in good faith and to be taken at face value. However, on closer examination, the Undertaking is not as fulsome as might appear to be the case. Under paragraph 2, there is the issue of what happens to the Appellant on his arrival in the US? It is quite clear that the Appellant will be in the custody of Homeland Security who, the evidence shows, routinely oppose bail with little push back from the courts. This court asked the First Respondent specifically about the relationship between the two bodies and whether the Undertaking would be honoured by Homeland Security, both in court and in the directions of 19th December 2019, to be met with a deafening silence. The lack of response, apart from being discourteous, leads the court to infer that the First Respondent's Undertaking does not bind Horiity, nor w

¶ [25] the court from the US experts is that Dr MacKellar is unlikely to get bail due to the ``` This transcription captures the content of the document, including the pagination and the footer information.
```html 1 intervention of Homeland Security. This significantly weakens the value of the 2 Undertaking. 3 117. In paragraph 3, the Undertaking refers to pre-approval for a liver transplant in the 4 Cayman Island or in the USA. So far as the approval in the Cayman Islands is 5 concerned, that is a non-starter. He cannot be approved in the Cayman Islands for 6 treatment in the US. As for approval in the US, if Dr MacKellar is in custody, there 7 is evidence from three witnesses, including Dr Finkelberg that this is impractical 8 given the battery of tests and different specialists who need to be seen. Paragraph 3 9 also refers to “a reasonable recovery period” without setting out some parameters of 10 what it is accepted would be such a reasonable period. 11 12 118. In paragraph 5 of the document, the First Respondent gives no undertaking to support 13 bail once the recovery period is over and the Defendant has to prepare for trial. In 14 paragraph 6, the First Respondent reserves it right to object to bail in the event that 15 Dr Mackellar has not received approval for a liver transplant. The only likely 16 scenario for Dr MacKellar to be refused a liver transplant is that he is too ill to be 17 operated on or as per Paragraph 7, if he is not placed in the first 10% of prospective 18 recipients. On the evidence before the court, he is highly unlikely to be in the top 19 10% and in any event, the evidence suggests that there is no system which determines 20 when a person reaches the first 10% of prospective recipients. 21 22 119. The evidence before the court, which was not contradicted, is that Dr MacKellar is 23 unlikely to receive a timely liver transplant if extradited to the US. Even if he were 24 receiving a tra 25 US citizen, is that he 26 27 on his arrival in the US, he will be in custody. It is not clear how long he will be in Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order: Mackellar (Iain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram: Dame Dobbs (Actig. Judge). Date: 9.03.2020 Page 42 of 47

¶ [1] custody before the Undertaking, were it satisfactory, would kick in. In custody, he is at greater risk of infection and consequently, death. (It is to be noted that he was admitted to bail in the Cayman Islands because of his worsened condition and susceptibility to infection in custody).

¶ [2] 120. The conditionality of the Undertaking is such that Dr MacKellar faces uncertainty as to whether he would be granted bail in the event that he is either not fit for transplant or is not amongst the top 10%. If he is not granted bail, he remains in custody knowing that, of all the transplants that have taken place in Bureau of Prisons custody, only one has ever been a liver transplant. The position therefore is this. Dr MacKellar, if extradited to the US, has no guarantee or assurance that he will receive a transplant in time to save his life, whilst knowing that he could get a timely life-saving transplant in the UK. Add to this the stress of being in a foreign country and facing criminal proceedings which carry an inevitable custodial sentence (given the sentences of the co-defendants) – all of which could have an impact on his recovery.

¶ [3] 121. The Appellant raises for the first time, the issue that the bail conditions are too onerous. This was not raised in court. It could have been. The court has not taken this into account therefore. Also, the court does not accept Mr Fitzgerald’s description of the offences as being regulatory in nature. On the face of the papers, the First Respondent has a strong case. However, the offences, although serious do not achieve the level of seriousness of offences which involve heavy violence, loss of life, serious sexual harm, terrorism, drug smuggling people trafficking and the like.

¶ [4] 122. spondent made a further proceedin pu at extradings

¶ [5] 26 The First Re de it clearion rsued against Dr MacKellar in other jurisdictions. It is not clear what the relevance of this statement was meant to be. It is not something which the court can take into account. ```
```html 1 Whether extradition proceedings are instituted in the UK or elsewhere is a matter 2 solely for the First Respondent. 3 123. Returning to the decision of the Magistrate. This court has found that it would be 4 5 oppressive to extradite Dr MacKellar. That is the end of the matter. However, for 6 sake of completeness, in the court's judgment, had the Magistrate addressed the 7 identified issues correctly and given of the updated uncontroverted medical 8 evidence, she would have reached the same conclusion and would have been 9 required to order the Appellant's discharge. It follows from the above, that leave to 10 appeal is granted, the appeal is allowed and the Appellant is discharged. 11 POST SCRIPT：THE SECOND APPEAL 12 13 124. The second Appeal was against the decision of the Governor to order extradition. In 14 15 light of the decision on the first appeal, it is common ground that the appeal against 16 the Governor's order falls away. There is no need for the court to address it. 17 However, the court did consider and draft a judgment for the second appeal. As a 18 courtesy to the hard work of the relevant parties, this is a very short summary of the 19 court's findings. 20 21 125. There were originally three grounds of appeal. One of the grounds is not now pursued 22 in light of a concession made by the Second Respondent. 23 24 126. The original grounds of appeal are two-fold therefore: 25 26 27 28 Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order: Mackellar (Iain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram: Dame Dobbs (Actg. Judge). Date: 9.03.2020 Page 44 of 47 ```
```html 1 ii. The Governor wrongly rejected the representations made to him that 2 adequate arrangements were in place with the US to guarantee that the 3 principle of specialty would be respected in the Appellant’s case. In 4 particular there was a real risk that the Appellant would be punished for 5 “relevant conduct” that was not the subject of the extradition request. 6 7 iii. (During the hearing on the final day, the Appellant introduced another 8 ground namely): That the Order which gave effect to the 1972 Treaty 9 has been revoked and thus there is no valid authority for the Governor 10 to extradite. GROUND ONE: "PRIMA FACIE" EVIDENCE 127. The Appellant submits that the Governor is bound by the 1972 Treaty and the 1976 Exchange of Notes which extends the application of the Treaty to the Cayman Islands which provided that the Requesting State must provide a “prima facie” case in the form of “such evidence as would justify committal for trial,” In contrast, the 2016 Extradition Order (s.84(7)(a)) has dispensed with this requirement. All that is needed under the Order are the documents specified in s.78(4). As a result, there is an inconsistency between the requirements of the Treaty and the Order. The Appellant submitted that where such a tension exists, the Requested Person is entitled to the fuller protection of whichever instrument provides the most generous safeguards, in this case, the provisions of the 1972 Treaty. The Treaty thus trumps the legislation. 24 Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order: Mackellar (Iain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram: Dame Dobbs (Actg. Judge). Date: 9.03.2020 Page 45 of 47 ```
```html 1 128. The Second Respondent accepted that s.84 of the 1976 Order preserves the requirement for the Requesting State to present “prima facie” evidence, but submitted that this requirement does not apply where the Requesting Category 2 Territory has been designated by the Secretary of State in an order made under s.84(7). The US is a designated territory under the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 (“Designation Order”) and thus is not subject to the “prima facie” requirement. 8 9 129. The court agreed with the Second Respondent and following the case of Norris found that the provisions of the Treaty do not trump the legislation. The cases cited by the Appellant did not assist his argument. Leave to appeal was refused on this ground. 12 GROUND TWO：SPECIALTY 13 14 130. The Appellant advanced nothing new. Bearing in mind the cases of Birmingham v. Director of the SFO15，and Welsh which found that the US sentencing scheme did not offend specialty under s.93 of the Extradition Act 2003 which the Extradition Act Order replicates，the court found that this ground was without merit and leave to appeal was refused. 19 GROUND THREE：NO VALID AUTHORITY TO EXTRADITE 20 21 131. Mr Fitzgerald’s point was a short one. The 1976 Order which gave effect to the 1972 Treaty was revoked by Schedule 5 of the 2016 Order. The Treaty still exists，but the Order giving effect to the Treaty has been revoked. As a result，the Governor can do nothing as there authority to extradite from the Cayman Islands. 24 15 [2007] QB 727 1 Judgment on Leave to Appeal Ruling of the Magistrate & Extradition Order：Mackellar (Iain Nigel) v. The USA and H.E. the Governor of the Cayman Islands. Case #06385/2017. Coram：Dame Dobbs (Actg. Judge). Date：9.03.2020 Page 46 of 47 ```
```html 1 132. This point, as noted by the Second Respondent, shows a misunderstanding of the 2 statutory provisions and for the reasons set out by the Second Respondent, has no 3 merit. In passing it should be noted, that this submission, logically, should be the 4 Appellant’s first submission, because, if successful, there would be no need to argue 5 the other two grounds, which Mr Fitzgerald has not abandoned. To the contrary, 6 when addressing the first submission, he explicitly relied on the fact that the Treaty 7 was still in force. Leave to appeal was also refused on this ground. 8 9 10 Dated this the 9th March 2020 11 12 13 14 15 Dame Linda Dobbs Acting Judge of the Grand Court ``` ```latex \begin{table} \begin{tabular}{|c|c|} \hline 1 & 132. This point, as noted by the Second Respondent, shows a misunderstanding of the \\ 2 & statutory provisions and for the reasons set out by the Second Respondent, has no \\ 3 & merit. In passing it should be noted, that this submission, logically, should be the \\ 4 & Appellant’s first submission, because, if successful, there would be no need to argue \\ 5 & the other two grounds, which Mr Fitzgerald has not abandoned. To the contrary, \\ 6 & when addressing the first submission, he explicitly relied on the fact that the Treaty \\ 7 & was still in force. Leave to appeal was also refused on this ground. \\ 8 & \\ 9 & \\ 10 & Dated this the 9th March 2020 \\ 11 & \\ 12 & \\ 13 & \\ 14 & Dame Linda Dobbs \\ 15 & Acting Judge of the Grand Court \\ \hline \end{tabular} \end{table} ```
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