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The Irish Times - Thursday, March 8, 2012

Garland ruling may make extradition more difficult

CAROL COULTER, Legal Affairs Editor

ANALYSIS: Judge ruled offences carried out here, even if affecting other jurisdictions, should be prosecuted here

MR JUSTICE John Edwards ruled earlier this year that Seain Garland should not be extradited to the United States to face conspiracy charges in connection with the alleged forgery of US dollars.

While four main arguments were put forward by his legal team, the High Court judge just ruled on the first: that the offence involved was an offence in Ireland, and should be prosecuted here.

He stated that in this age of modern communications, where much serious fraud is transnational (the same could be said for internet crime), the common law must evolve to reflect the need to be able to prosecute in the jurisdiction where a substantial portion of the crime is committed.

Section 15 of the 1965 Extradition Act states: “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.”

Mr Justice Edwards said it was necessary to combat procedural challenges to prosecutions with an extraterritorial element arguing that, for example, if money was lodged to an account abroad, the offence in fact took place there.

“The Irish courts should, as a matter of good sense in the times in which we live, be entitled to assert jurisdiction in respect of a conspiracy formed in Ireland to effect harm by means of an unlawful act or acts to be committed principally in, or against, another state, where it can be reasonably asserted that the conspiracy, if carried into effect, would be harmful, or potentially harmful, either directly or indirectly, to the interests of this State,” he said.

Yesterday, Garland’s lawyers were informed the State would not appeal this judgment to the Supreme Court.

In the case of the student hackers, the Fine Gael website was hosted in Arizona in the US, making the attack on it potentially an offence under US law. But it may also be an offence under Irish law.

According to an extradition law expert, the Garland ruling means a whole slew of offences cannot now be the basis for extradition to the US, where they are also an offence under Irish law.

“Julian Assange could not be extradited to the US from Ireland,” the expert said, referring to the controversial founder of WikiLeaks.

Two UK citizens are fighting extradition to the US for hacking and computer offences.

Hacker Gary McKinnon, who has Asperger’s syndrome, was arrested in 2002 after he hacked into military computers looking for evidence of UFOs. His case is still before the courts.

Richard O’Dwyer set up a website, TV Shack, which provided links to other websites where users could access content but did not host any of the content itself. This is a copyright offence in the US, but is not an offence in the UK. He was arrested in 2010 and took the site down, but earlier this year a magistrates’ court ruled his extradition could go ahead. This is likely to be appealed.

original story here

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