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The Legal Geographies of Transnational Cyber-Prosecutions: Extradition, Human Rights and Forum Shifting

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The Legal Geographies of Transnational Cyber-Prosecutions: Extradition, Human Rights and Forum Shifting This may be the author’s version of a work that was submitted/accepted for publication in the following source: Mann, Monique, Warren, Ian, & Kennedy, Sally (2018) The legal geographies of transnational cyber-prosecutions: extradition, hu- man rights and forum shifting. Global Crime, 19(2), pp. 107-124. This file was downloaded from: https://eprints.qut.edu.au/116529/ c Consult author(s) regarding copyright matters This work is covered by copyright. Unless the document is being made available under a Creative Commons Licence, you must assume that re-use is limited to personal use and that permission from the copyright owner must be obtained for all other uses. If the docu- ment is available under a Creative Commons License (or other specified license) then refer to the Licence for details of permitted re-use. It is a condition of access that users recog- nise and abide by the legal requirements associated with these rights. If you believe that this work infringes copyright please provide details by email to [email protected] Notice: Please note that this document may not be the Version of Record (i.e. published version) of the work. Author manuscript versions (as Sub- mitted for peer review or as Accepted for publication after peer review) can be identified by an absence of publisher branding and/or typeset appear- ance. If there is any doubt, please refer to the published source. https://doi.org/10.1080/17440572.2018.1448272 The Legal Geographies of Transnational Cyber-Prosecutions: Extradition, Human Rights and Forum Shifting Monique Manna*, Ian Warrenb and Sally Kennedyb aFaculty of Law, Queensland University of Technology, Brisbane, Australia bFaculty of Arts and Education, Deakin Univeristy, Geelong, Australia *Corresponding author: [email protected] orcid.org/0000-0001-8372-3797 Dr Monique Mann is the Vice Chancellor’s Research Fellow in Technology and Regulation at the Faculty of Law, Queensland University of Technology. Dr Mann is advancing a program of socio-legal research on the intersecting topics of algorithmic justice, police technology, surveillance, biometrics and transnational online policing. Dr Ian Warren is a Senior Lecturer in Criminology at Deakin University, Geelong, Australia. His research interests focus on surveillance, transnational justice cooperation and exclusionary criminal governance policies. Sally Kennedy is a Doctoral candidate at Deakin University, Geelong, Australia. Her research focuses on comparative extradition law and procedure. Acknowledgements: The authors would like to thank Dr Angela Daly, Dr Dean Biron and the anonymous reviewers for their helpful comments on earlier versions of this article and Mr Michael Wilson for his excellent research assistance. 1 Abstract This paper describes legal and human rights issues in three cases of transnational online offending involving extradition requests by the United States (US). These cases were selected as all suspects claimed the negative impacts of Autism Spectrum Disorders (ASD) were sufficient to deny extradition on human rights grounds. We demonstrate how recent developments in UK and Irish extradition law raise human rights and prosecutorial challenges specific to online offending that are not met by established protections under domestic and internationally sanctioned approaches to extradition or human rights law. In these cases, although the allegedly unlawful conduct occurred exclusively online and concurrent jurisdiction enables prosecution at both the source and location of harm, we demonstrate why national courts hearing extradition challenges are extremely reluctant to shift the trial forum. We conclude by discussing the implications of the new geographies of online offending for future criminological research and transnational criminal justice. Keywords: Extradition; Computer Hacking; Legal Geography; Human Rights, Autism Spectrum Disorders, Asperger’s Syndrome 2 Introduction Despite a rich and often contentious history,1 extradition is a lynchpin of transnational justice cooperation that has largely avoided criminological scrutiny.2 Extradition attempts to reconcile the conflicting legal geographies of a sovereign state’s power to criminalise and punish,3 usually when a person suspected or convicted of a crime in one jurisdiction flees to another. A combination of judicial and executive processes4 facilitates ‘reciprocal recognition and preservation of the sovereignty and territorial integrity of individual nation state(s)’5 under bi- and multi-lateral extradition treaties incorporated into domestic laws. This process conflates the criminological aspects of transnationalism6 with international relations, by attempting to reconcile ‘national interests’ in crime control with the suspect’s ‘individual rights’.7 Transnational crime treaties aim to promote ‘the efficiency of domestic prosecution’ through the harmonisation of domestic laws and cooperative measures.8 For example, Article 16 of the United Nations Convention Against Transnational Organised Crime (UNTOC or Palermo Convention) and Article 24 of the Council of Europe Convention on Cybercrime (CoC or Budapest Convention) recommend harmonisation via cooperative national investigative, prosecutorial, extradition and mutual legal assistance agreements.9 In the absence of a unified body of transnational criminal law,10 harmonisation produces the ‘functional equivalence’ of established national laws.11 Significantly, harmonisation also enables the trial forum to be shifted to the jurisdiction where the harm originated, which reinforces ‘the Internet’s transformation from a technology that resists territorial law to one that facilitates its enforcement’.12 This raises important questions about the viability of forum shifting as an alternative to extradition, as it is now common for states to share concurrent 3 jurisdiction for most forms of transnational crime under the UNTOC, the CoC and other bilateral treaties.13 The cases of Gary McKinnon (UK), Hew Griffiths (Australia),14 Deniss Čalovskis (Latvia), Sergei Tšurikov (Estonia), Yevgeniy Nikulin (Czechoslovakia) Kim Dotcom (NZ),15 Gary Davis (Ireland), Eric Marques (Ireland) and Lauri Love (UK), represent an emerging pattern of transnational cyber-prosecutions instigated by the US, involving ‘fugitives’ who allegedly offended remotely via the Internet. Forum shifting offers an alternative to extradition as many transnational cybercrime suspects have never physically entered the jurisdiction where harm was experienced. The extensive publicly available records of the legal challenges to extradition by Gary McKinnon, Gary Davis and Laurie Love, demonstrate how common law courts view forum shifting as an alternative to surrendering a suspect to face trial in the US, specifically where there is a clinical diagnosis of intermediate or severe Autism Spectrum Disorder (ASD), or Asperger’s Syndrome (AS).16 As with domestically administered criminal laws, AS diagnostic criteria also differ17 and have varied implications for determining liability and sentencing for different forms of crime under distinct national laws.18 These three cases are significant for examining evidence of ASD to support legal arguments for shifting the trial forum to the UK and Ireland, which is permissible under relevant domestic extradition laws and various bi- and multi-lateral treaties also ratified by the US.19 In each case all alleged US offending occurred extraterritorially and it was claimed severe ASD magnified each suspect’s risk of suicide if extradition proceeded. Each suspect also offered to accept guilt for equivalent UK and Irish computer misuse and cyber offences, which was rejected by national prosecutors and courts. 4 We adopt Blomley’s concept of ‘legal bracketing’ to examine how UK and Irish courts attempt to reconcile conflicting individual, domestic and bi-lateral factors associated with forum shifting or surrendering a suspect to face trial in the US. Based on reported case records that demonstrate the formal consequences of illicit transnational activity,20 each case study we present below demonstrates how legal bracketing by domestic courts aims to ‘stabilise or fix a boundary’ that favours extradition to the US, by emphasising specific factual and legal issues that are framed ‘more or less independently of their surrounding context’.21 Specifically, we examine how UK and Irish courts selectively emphasise the comparability of justice and sentencing procedures to override concerns emanating from each suspect’s AS diagnosis when examining forum shifting as a potential alternative to surrender. Our analysis reveals how this shapes emerging common law extradition precedents that overlook concerns for a defendant-centred approach to prevent unfairness in transnational criminal prosecutions conducted in national courts.22 After outlining the centrality of legal geography to extradition law, we examine how the bracketing of ASD is insufficient to bar extradition on human rights grounds, or validate forum shifting even when all alleged offending occurs outside US territory. We conclude by arguing that forum shifting is a crucial defendant-centred element of contemporary legal geography meriting more serious consisderation in the interests of transnational justice. Extradition, Concurrent Jurisdiction and Legal Geography The UNTOC and CoC build on established principles of transnational criminal justice cooperation that preserve national jurisdiction and territorial sovereignty for the 5 administration of justice.23 Transnational crime
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