Law Report: Computer offences could be extradition crimes

Re Allison; Regina v Bow Street Magistrates' Court, ex parte Allison; Queen's Bench Divisional Court (Lord Justice Kennedy and Mr Justice Blofeld) 13 May 1998

IN THE CASE of a request for extradition made by the Government of the United States, offences contrary to sections 2 and 3 of the Computer Misuse Act 1990 were extradition crimes.

The Divisional Court dismissed applications for habeas corpus by Adeniyi Allison, and for judicial review by the US government and the Director of Public Prosecutions, both applications having been made in connection with extradition proceedings.

The applicant had been arrested at the request of the US government pursuant to a provisional warrant in respect of three offences of conspiracy which also involved a woman named Joan Ojomo, a credit analyst employed by American Express at their office in Plantation, Florida.

The magistrate decided to commit the applicant only on the third of those offences.

The US government and the Director of Public Prosecutions sought judicial review of the magistrate's decision not to commit on the first two offences, and the applicant, by proceedings for habeas corpus, sought to set aside the committal on the third offence, and another committal on unrelated offences connected with the State of Maryland.

Clare Montgomery QC and Helen Malcolm (Burton Copeland) for the applicant; James Lewis (Crown Prosecution Service) for the Director of Public Prosecutions and the US government.

Lord Justice Kennedy said that the case for the US government was that Joan Ojomo, as a credit card analyst, was authorised to access computer records and had supplied account information to her co-conspirators which had enabled them to obtain a personal identification number from American Express, encode a credit card, and draw large sums of money from automatic teller machines.

The applicant contended, inter alia, that the three Florida offences alleged contraventions of ss 2 and 3 of the Computer Misuse Act 1990, and that in the case of a request for extradition made by the US government such contraventions were not extradition crimes.

Section 1(3) of the Extradition Act 1989 made clear that where an Order in Council under section 2 of the Extradition Act 1870 was in force in relation to a foreign state, which was agreed to be the position in relation to the United States, schedule 1 to the 1989 Act should have effect in relation to that State "subject to the limitations, restrictions, conditions, exceptions and qualifications, if any, contained in the Order".

Having regard to the wording of the 1989 Act it was only necessary, to determine whether offences contrary to sections 2 and 3 of the Computer Misuse Act 1990 were extradition crimes, to look at schedule 1 to the Act 1989 and the relevant Order in Council, i.e. the United States of America (Extradition) Order 1976, which gave effect to the 1972 bilateral Extradition Treaty. Article 3(1) of the Treaty provided:

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 . . . or any other offence . . .

The schedule did not contain any express reference to offences contrary to the Computer Misuse Act 1990, but there was an amendment in section 15 of the 1990 Act which extended the Order to include any offences under sections 2 or 3 or any conspiracies to commit such offences. Although the 1990 Act could not amend the 1972 Treaty, it made use of the Treaty's reference to "any other offence" to extend the provisions of the Order.

The magistrate had, however, correctly concluded that, since Joan Ojomo was entitled to control access to data of the kind in question, notwithstanding the fact that she had misused the information she had obtained, her access to it was not "unauthorised access" as defined by section 17(5) of the 1990 Act, and the applicant could not be guilty of the first two offences .