Everything’s free in America (copyrighted material not included)

18 January 2012 by

The Government of the United States of America -v- O’Dwyer, Westminster Magistrates’ Court – Read judgment

It seems appropriate, on the day when Wikipedia shut down for 24 hours to protest against US anti-piracy legislation, to talk about piracy (in the copyright sense) and what role human rights law has to play in the perpetual battle against it.

It is a topic that polarises, with some considering piracy to be no more moral than any other theft, and others seeing those who commit piracy offences as fighting for freedom of expression and liberal copyright laws. In the case of Richard O’Dwyer, a young man who is accused of setting up a website which breaches US copyright law and who is facing extradition to the US for trial, he attempted to block his extradition by relying on a combination of human rights and other objections relating to the manner and circumstances surrounding the request.

The background

Richard O’Dwyer, a 23 year old subject to an extradition request by US authorities has lost his attempt to resist the extradition. He is alleged to have breach US copyright law by setting up and running a website, TVShack, which gave the public free access to copyrighted films and Tv programmes. Take a look at the Extradition Act 2003.


He attempted to resist the extradition on three bases:

i. The offence did not meet the requirement of dual criminality (i.e. being an offence both in the jurisdiction where he is now and the one where he is to be extradited). District Judge Purdy considered that the test was satisfied.

ii. The extradition would be unjust or oppressive due to the passage of time from the alleged offence, in which case section 82 of the EA 2003 requires the request to be discharged. Mr O’Dwyer was arrested and interviewed on 29 September 2010, in the UK, and not charged. Evidence gathered by those events however is relied on by the US authorities.  He was released from bail on 23 May 2011 and arrested for extradition. This, it was argued, was unfair for a number of reasons, including that he would have lost any benefit he might have enjoyed from cooperating with the US prosecutors. The US conduct was oppressive, it was argued, because there had been a “tactical delay“, with serious consequence for his university education.

Referring to the case of Gomes and Goodyer v Government of Trinidad and Tobago, where the House of Lords stressed that the sort of factors making extradition unjust or oppressive must be outside of the ordinary unpleasant and alarming matters encountered by someone facing extradition and trial in another jurisdiction, District Judge Purdy rejected this argument. There was no basis for suggesting that a fair trial could not take place. For instance, no evidence was unavailable.

iii.  Extradition would violate Articles 5 (right to liberty) , 6 (right to fair trial) and 8 (right to respect for private and family life) of the ECHR. Given Mr O’Dwyer’s youth, his being at university and living near family and friends in the UK, he argued that extradition “would expose him to trial in an inappropriate forum and be disproportionate“. District Judge Purdy found this unpersuasive. Although for instance video link may allow the evidence to be given by Mr O’Dwyer in the UK, there was nothing in the requested extradition or circumstances while Mr O’Dwyer remained on bail in the UK which breached these human rights.

District Judge Purdy noted,

Very powerful observations do come from Lord Phillips, PSC in Norris v USA [2010] UKSC 9 (@ para 67) … His Lordship said “extradition proceedings should not become the occasion for a debate about the most convenient forum for criminal proceedings…Unless the judge reaches the conclusion that the scales are finely balanced he should not enter into any enquiry as to the possibility of prosecution in this country. ” (paragraph 9)

Consequently, none of Mr O’Dwyer’s arguments were accepted. He is likely however to appeal, so watch this space for more developments.

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