I don’t think Richard O’Dwyer should be sent to a US prison for 120 months, as one expert has suggested seems likely. I don’t think he should be sent to the USA at all.
But I am at a loss as to why it now seems to be widely repeated that he has committed no act that might be an offence under UK law and suggested that the Home Secretary should refuse extradition on that basis. According to District Judge Purdy in the trial that covered that very issue in January, he has committed acts which are contrary to the CDPA 1988, s. 107(2A), namely:
‘A person who infringes copyright in a work by communicating the work in public
(a) in the course of business, or
(b) otherwise than in the course of business but to such an extent as to affect prejudicially the owner of the copyright,
commits an offence if he knows or has reason to believe that, by doing so he is infringing copyright in that work’.
So just refusing the request will look impossibly weak and, while I think all would agree that the extradition agreements with the USA are ill-balanced, it is not responsible government to simply refuse a request because we have done a deal that we no longer much like. I might add that the occasional portrayal of O’Dwyer as an Internet freedom fighter looks pretty sick to me and I can understand why copyright owners might well see his earnings of £15,000 a week from his site as taking the gravy from their plates. But, if he has committed offences here, why are we abdicating responsibility for enforcement of the law? It is hardly rendition but it makes us look weak and pathetic.
There is an alternative to a simple refusal. First, we should implement the Extradition Act 2003, s 83A. This provides that:
‘(1) A person’s extradition to a category 2 territory (“the requesting territory”) is barred by reason of forum if (and only if) it appears that—
(a) a significant part of the conduct alleged to constitute the extradition offence is conduct in the United Kingdom, and
(b) in view of that and all the other circumstances, it would not be in the interests of justice for the person to be tried for the offence in the requesting territory.
(2) For the purposes of subsection (1)(b) the judge must take into account whether the relevant prosecution authorities in the United Kingdom have decided not to take proceedings against the person in respect of the conduct in question.’
Section 83A was added by the Police and Justice Act 2006 but has not been brought into force. While I think it is a scandal if any piece of legislation lies unimplemented for six years, this seems a particular scandal because it is manifestly a good idea that a person should not be extradited where ‘it would not be in the interests of justice for the person to be tried for the offence in the requesting territory’. I acknowledge that the Extradition Review in 2011 considered that the forum bar (s 83A in this context) should not be implemented. It found no evidence of ‘any injustice being caused by the present arrangements’, although the review presumably did not include O’Dwyer’s case. The Review said:
‘The major disadvantage of introducing the forum bar is that it will create delay and has the potential to generate satellite litigation. This would slow down the extradition process, add to the cost of proceedings and provide no corresponding benefit. Much has been achieved by the 2003 Act in making extradition more sensitive to modern needs; the introduction of the forum bar would be a backward step. Prosecutors are far better equipped to deal with the factors that go into making a decision on forum than the courts. Their decision making should, however, take place as early as possible, be more open and transparent and the factors that they take into account should be incorporated into formal guidance which should specifically address the significance to be accorded to the nationality or residence of a suspect.
Accordingly, we recommend that the forum bars in sections 19B and 83A should not be implemented, but formal guidance should be drawn up, made public and followed by prosecuting authorities when deciding whether or not to prosecute in the United Kingdom a case involving cross-border criminal conduct.’
I think the Review Committee were wrong on this, and do not understand what such an eminent group has against the ‘interests of justice’ test. I would also point out that the failure to implement after such a long period makes a joke out of parliamentary supremacy. I note too that this government is committed to {repealing unnecessary legislation from the statute book … rather than leaving [it] in place unimplemented: http://www.scl.org/site.aspx?i=ne26800}; I dare them to repeal that piece of legislation, given the current view of the House of Commons of the US extradition arrangements.
In any event, the ‘formal guidance’ which the Committee thought was needed for prosecutors does not seem to me to have been revised – that currently available on the CPS web site is as follows:
‘In cross-border cases involving England and Wales and other jurisdictions, the best practice is for prosecutors and investigators of the relevant jurisdictions to meet face to face to consider and balance the different factors that should be considered when reaching a decision where to prosecute. Prosecutors should consider the following factors:
• Whether the prosecution can be divided into separate cases in two or more jurisdiction;
• The location and interests of the victim or victims;
• The location and interests of witnesses;
• The location and interests of the accused;
• Delays.’
Given what we know about the victims in this case, and given the very obvious availability of technology to assist witnesses and avoid lengthy travelling and stays in the UK, I would have thought that such guidance pointed to a trial in the UK since the accused’s location and interests are very properly a factor and he is going to suffer more than the victims who, occasional sob stories apart, are mega corporations.
Of course, even if s. 83A were to be speedily implemented, it makes specific reference to the factor of whether the CPS have decided to prosecute. So this is where Keir Starmer QC, the DPP, can ride to the rescue. It is within his discretion to prosecute. He has a District Judge who has told him that a crime has been committed in our jurisdiction. It is widely accepted that most of the allegedly illegal behaviour of O’Dwyer occurred in the UK. Why not prosecute?
Even without the implementation of s 83A such a prosecution would surely delay and give Theresa May a respectable reason to refuse the request from the USA. I am surprised in fact that there has been no judicial review application seeking such a prosecution. After all, O’Dwyer would face a maximum sentence of two years’ imprisonment and a realistic sentence of very much less – probably no immediate custodial sentence at all (assuming a conviction, which is by no means a given). That sort of sentence looks a lot better than anything he is currently facing.
So, rather than petitioning for his freedom, let’s call for his prosecution. We should look after our own, even if that means prosecuting them.
