British Courts Rule American Law Enforcement has Jurisdiction Over British Use of British Websites on British Servers!

If you have arrived here via Twitter, welcome.  If you are a British citizen, I hope you contact your own MP and Teresa May about this matter.

If you are American, then please contact the British Embassy.

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If you feel moved to making a comment, please keep them to corrections of any errors I may have made, rather than long expositions of rhetoric.

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You may be aware of the pending case of Richard O'Dwyer, currently facing extradition to the US from the UK because he allegedly broke US copyright laws.

However, the alleged offence did not occur on US soil, US websites or US servers.

In fact, Mr O'Dwyer did not host any copyrighted files on his website, just hosted links to other websites.

I contacted the Home Secretary over the matter, and received this reply from an underling (I have removed my personal contact details from the text, emphasis is mine):

Direct Communications Unit

  2 Marsham Street, London, SW1P 4DF

Switchboard: 020 7035 4848 - Fax: 020 7035 4745 - Textphone: 020 7035 4742

E-mail: public.enquiries@homeoffice.gsi.gov.uk - Website: www.homeoffice.gov.uk

                                                           

[Address removed]                                                                                                              28 June 2012

Dear [Kiteman],

Thank you for your email of 25 June to the Home Secretary about the extradition of Richard O’Dwyer.  Regrettably the Home Secretary receives so much correspondence that she is unable to reply personally to all those who write to her.  Your letter has been passed to me to reply.

Richard O’Dwyer is wanted in the US for offences related to copyright infringement connected to the TVShack.net website.  The comparable offence in the UK is one contrary to Section 107 (2A) of the Copyright, Designs and Patents Act 1988, which carries a sentence of up to two years.

Mr O’Dwyer’s case has been heard before a District Judge at Westminster Magistrates’ Court, who considered whether there were any bars to his extradition under UK law.  On 13 January 2012, the District Judge ruled that extradition was not prohibited, and accordingly the case was sent to the Secretary of State for a decision to be made on surrender.

In reaching her decision, the Home Secretary must, in every extradition case consider four issues: whether the person is at risk of the death penalty (she must receive satisfactory assurances that if the death penalty can be applied it is not carried out); whether speciality arrangements are in place (these ensure that an extradited person may only be proceeded against in respect of the conduct for which extradition was ordered); whether the person concerned has previously been extradited from another country to the UK, and the consent of that country to his further and onward extradition from the UK is required; and whether the person concerned has previously been transferred to the UK by the International Criminal Court.

On 9 March, after careful consideration of these issues, the Home Secretary, decided to order Mr O’Dwyer’s extradition to the USA.  The current position of the case is that Mr O’Dwyer has decided to exercise his right of appeal to the High Court, and it would not be appropriate to comment further at this time.

You infer that, if extradited, Mr O’Dwyer would face charges that would not result in a prosecution in the UK.  Under the current UK-US bilateral extradition treaty, no-one can be extradited from the UK to the US (or vice versa) for conduct that is not a criminal offence in both jurisdictions.  This is a principle known as “dual criminality”.  At the extradition hearing the District Judge considers whether the request meets the requirements of the Extradition Act 2003, and whether any of the statutory bars to surrender apply, including the question of dual criminality.  The comparable offence in the UK is one contrary to Section 107 (2A) of the Copyright, Designs and Patents Act 1988, which carries a sentence of up to two years.

In terms of the relevant jurisdiction in relation to Mr O’Dwyer’s alleged offence.  Any alleged offences for which a request for an extradition is made would have to come within the requesting State’s jurisdiction (as well as being an extradition offence as defined by the Extradition Act 2003) for it to be valid under UK law.  The UK courts have held that US authorities have jurisdiction in relation to the offences of which Mr O’Dwyer is accused, and are entitled to seek his extradition.

In general terms, the question of whether or not any individual should be tried in the UK is a matter for the Director of Public Prosecutions.

The Government is conscious that there are a number of areas of the UK's extradition arrangements which have attracted significant controversy in recent years.  Following the Home Secretary’s announcement on 8 September 2010, the Rt Hon Sir Scott Baker led an independent panel, which conducted a review into the UK’s extradition arrangements.

The review was published on 18 October 2011.  The review panel found that the UK-US Treaty does not operate in an unbalanced manner.  However, the report makes a number of recommendations to improve the UK’s extradition arrangements. 

It is important to note that these are the findings of the panel which the Home Secretary has not yet accepted.  The report is now being carefully examined and the Home Secretary will announce what action the Government will take shortly.

Yours sincerely,

B McGuire

My response:

Dear "B McGuire" (sorry, but your signature did not indicate gender),

You are somewhat missing the point, I am afraid that it might be deliberate.

If Mr O'Dwyer had committed an offence in the USA, or even using a website based on American soil, then I would not be concerned about the extradition.

However, the alleged offence did not take place in any location, real or virtual, connected with the USA.  The ruling that the United States has jurisdiction in this case is absolutely horrifying - that a British court can rule that any foreign country has jurisdiction over the actions of a British citizen, in Britain, using British equipment is so deeply disturbing that I am beyond words in expressing my horror that a democratically-elected government can so easily hand over legal powers to a group representing commercial interests in another nation without consulting the electorate at all.

Consider: if I stole a wallet from an American tourist, would I be extradited to America to face prosecution?  No, I would not - if the offence is committed on British soil, then the alleged offender must be tried in British courts under British law.

You are also misrepresenting my words.  I did not say that Mr O'Dwyer would not be prosecuted for the alleged offence - I said that he would not be jailed.  The potential penalties that could be imposed by a US court (depending on how the court chooses to to interpret the alleged offence, it could involve a fine of $150,000 for every single link on the website) are far, far in excess of the maximum penalty should Mr O'Dwyer be found guilty in a British court.

Needless to say, I oppose this extradition, and all other like it, on the grounds that they contravene the civil liberties of British citizens, and that the abdication of jurisdiction to an unelected foreign organisation is, at every level, wrong.

I look forward to an official response that indicates that the United States no longer has jurisdiction over British soil...

Regards,

[Kiteman].
(Concerned British Citizen and Voter)