I DO not expect that a defence of Sheffield student Richard O’Dwyer’s extradition will be popular. But I do believe that the extradition arrangements between Britain and the US are fair, and that O’Dwyer’s case illustrates why.
First, a fundamental point: extradition is a legal process. Legal processes sometimes produce results that we do not like. But getting the results we like is not the same thing as following the legal process. Even if you believe that O’Dwyer should have been prosecuted in Britain – or not prosecuted at all – you can still acknowledge that his extradition is legal.
O’Dwyer, from Barnsley, is accused of running a website that illicitly directed its users to copyrighted material and which had substantial advertising revenue. His extradition was requested by the US, and has been approved by Westminster Magistrates’ Court and the Home Office.
He claims his site did not host copyrighted material. That is the standard argument of internet pirates, but aiding and abetting the commission of a crime is itself a crime. The question is not whether his site hosted stolen material, it is whether he knowingly and willfully abetted a crime by directing people to places where they could readily obtain stolen material. That must be answered in a court of law.
O’Dwyer argues that, as he put it in a BBC interview, “I’ve done nothing wrong under UK law.” That sounds like a good defence: under the terms of the US-UK extradition treaty, O’Dwyer cannot be extradited to America unless his conduct would also amount to a crime in Britain.
However, internet piracy is a crime in Britain. People go to jail for it. Just last month, Anton Vickerman, a British subject, was sentenced to four years in a British jail for running a similar site.
So it would appear that O’Dwyer is indeed subject to extradition.
Remember, extradition is not about determining guilt – O’Dwyer’s guilt or innocence will be determined in the US. Extradition is a legal process which examines whether the request is proper, lawful and meets an objective “reasonable suspicion” standard.
There is nothing radical about this standard. It is also the standard that applies to arrest warrants in Britain. Both a British court and the Home Office have decided that the American request is proper, that the standard has been met, and that there is no other bar to extradition.
Some argue that since O’Dwyer lives in Britain he should be tried there. I agree that, as a general matter, democracies should prefer to try their own citizens at home. But the US-UK treaty allows America to exercise extraterritorial jurisdiction only if Britain could do so in equivalent circumstances. In other words, the US is claiming nothing that Britain does not claim for itself.
If Britain wants to try O’Dwyer it could do so. Whether he was found innocent or guilty, he could not then be extradited to the US on the same charges. If any error has been made in this case, it is not the fault of the US, which has done exactly what Britain would be entitled to do in reverse circumstances.
It is the British authorities who decided not to press charges against O’Dwyer. The reasons for that decision are known only to the Crown Prosecution Service. In both the US and British systems of justice, prosecutors are responsible for considering the facts of the case and for deciding whether to bring charges, what charges should be brought and where they should be filed.
In this case, the CPS may have decided correctly that justice would be better served by having O’Dwyer prosecuted in the US, or it may have erred. The point is that it was their decision to make and outsiders are not well-equipped to second guess that decision. That is the way both our free and fair legal systems work, even if we do not always like the results.
It is worth remembering also that it is not just US media giants which have a stake in this kind of case. According to the BBC, exports from UK digital and creative industries are worth £16bn annually. A US pirate who ripped off Top Gear would not be stealing from some faceless firm – the money would ultimately come out of your licence fee.
What troubles me about O’Dwyer is not just his arguments. It’s the friends he has chosen. O’Dwyer has compared himself to Christopher Tappin, who is accused of arranging the sale of US weapons components to Iran, which in turn is busy helping Syria slaughter its own civilians.
Tappin’s charge is far more serious than O’Dwyer’s. But when O’Dwyer aligns himself with an accused arms smuggler, I am inclined to believe that maybe the CPS got it right.
* Ted R Bromund is a senior research fellow in Anglo-American relations at The Margaret Thatcher Center for Freedom, based at the Heritage Foundation, Washington.