3C.3 Jurisdiction and Extradition

3C.3.1 Venue

In the UK Computer Misuse Act, 1990, the test for jurisdiction in cases where borders are transversed in the commission of an offense under the Act is whether there is a "significant link" with the domestic jurisdiction. Thus, the UK courts will claim jurisdiction where the perpetrator was in the United Kingdom when he/she caused the computer to perform the offending function or when the computer used was in the United Kingdom or when the victim computer was in the United Kingdom or if the defendant accessed a computer and his/her intention was to commit a further offense in the United Kingdom (see s.4)

3C.3.2 Extradition

Extradition between European states is governed by the European Convention on extradition and related legislation.

It should be noted that, while one of the basic tenets of the EU is the free movement of persons across the internal borders, extradition in the European context is thwarted somewhat by traditional principles. The principle of territoriality holds that a state's criminal law only applies to criminal activity occurring within its jurisdiction. Pursuant to what is known as the nationality principle, states do not extradite their own citizens, but rather retain the power to institute domestic proceedings against them. Under Article 7 of the Convention on Extradition a requested party may refuse to extradite a person sought for an offense which is regarded by its law as having been committed in whole or in part in its territory. The refusal may be made mandatory in domestic legislation. Thus, for example, Section 15 of the Irish Extradition Act 1965 provides:

Extradition shall not be granted where the offence for which it is requested is regarded under the law of the State as having been committed in the State.

There is an extradition treaty between the United Kingdom and the United States which has been given effect by Order in Council, the United States of America (Extradition) Order, 1976, made under Section 2 of the Extradition Act 1870. The procedure for extradition to the United States is, therefore, governed by the provisions of that Act which have been consolidated in schedule 1 to the Extradition Act 1989. (See Levin [1997] 3 All E.R. 289.)

Article III of the treaty provides:

Extradition shall be granted for an act or omission the facts of which disclose an offence within any of the descriptions listed in the Schedule annexed to this Treaty, which is an integral part of the Treaty, or any other offence, if:
1. the offence is punishable under the laws of both parties by imprisonment or other form of detention for more than one year or by the death penalty;
2. the offence is extraditable under the relevant law, being the law of the UK or other territory to which this Treaty applies by virtue of sub-para (1)(a) of article II; and
3. the offence constitutes a felony under the law of the United States of America.
Extradition shall also be granted for any attempt or conspiracy to commit an offence within paragraph (1) of this article if such attempt or conspiracy is one for which extradition may be granted under the laws of both parties and is punishable under the laws of both parties by imprisonment or other form of detention for more than one year or by the death penalty.

The schedule annexed to the Treaty does not include any reference to computer crime. Therefore, if an offence under the Computer Misuse Act, 1990 is to be pleaded within the terms of the Treaty it will come in as some "other offense."

CASE EXAMPLE (R. v. GOVERNOR OF BRIXTON PRISON, ex parte LEVIN 1997):

Levin was charged before the Federal District Court for the Southern District of New York with the Federal offenses of wire fraud and bank fraud and certain offenses relating to the misuse of computers. The allegation was that he used a computer terminal in St. Petersburg to gain unauthorized access to the computerized fund transfer service of Citibank NA (Citibank) in Parsipanny, New Jersey, and fraudulently made 40 transfers of funds from the accounts of clients of Citibank to accounts which he or his associates controlled.

Levin was arrested in the transfer lounge at Stansted Airport in London on a provisional warrant issued at the request of the US government. The Secretary of State signified to the metropolitan magistrate that a requisition for Levin's surrender had been made by the government of the United States, stating that he was accused of various extradition crimes within the jurisdiction of the United States.

As stated by the court at p. 292 of the report:

it thereupon become the duty of the metropolitan magistrate, pursuant to paragraph 6(1) of schedule 1, to hear the case in the same manner as if the defendant were charged with an indictable offence committed in this country. Paragraph 7(1) provides that if—

"such evidence is produced as ... would, according to the law of England and Wales, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in England or Wales, the metropolitan magistrate shall commit him to prison, but otherwise shall order him to be discharged."

The magistrate found that the evidence justified the defendant's committal for trial for 66 offences. These included four counts of theft and numerous counts of forgery, false accounting and computer misuse. Accordingly, he ordered the defendant's committal to prison to await the decision of the Secretary of State as to whether he should be surrendered.

CASE EXAMPLE

R. v. Bow Street Magistrates, ex parte U.S. Government, Allison [1999] 3 W.L.R. 620 is authority for the proposition that offenses under the Computer Misuse Act, 1990, are extradition crimes. The facts of the case are summarized above. Following committal by the court of first instance, the accused brought habeas corpus proceedings challenging the view than any of the offenses alleged (unauthorised access with intent to commit theft and forgery, and intent to cause an unauthorized modification of the contents of the victim computer system) were "extradition crimes" under the Extradition Act, 1989 and the US Extradition Order in Council, 1976. This submission was rejected by the court, noting that section 15 of the 1990 Act provides that: "The offences to which an Order in Council under Section 2 of the Extradition Act, 1870, can apply shall include - (a) offences under Section 2 or 3; (b) any conspiracy to commit such an offense; and (c) any attempt to commit an offense under Section 3".