US federal extradition request discharged for obstruction of justice charges
Ben Cooper secured the discharge of Mr Dempsey, wanted by the United States Government for an alleged offence of providing a “false statement involving international terrorism” to a Federal Bureau of Investigation (FBI) Special Agent in an interview at Rome’s Fiumicino Airport in August 2013 relating to the conflict in Syria. Mr Dempsey was returning to the US from Syria after meeting with a group opposed to President Assad that was at the time sponsored by the US government.
Mr Dempsey, an American citizen, was arrested in London in 2017 after he had been prevented from returning voluntarily to the US. In 2016 a Grand Jury in California indicted him and a warrant for his arrest was issued by the Federal Court in California.
Although the US Government is not required to provide evidence of a prima facie case against the requested person, it has to establish that the conduct alleged gives rise to an extradition offence and thereby meets the dual criminality test.
The Government argued that the conduct indicted in California was equivalent to the English criminal offence of perverting the course of justice.
Mr Dempsey argued that “frustrating” the course of justice by obstructing cannot amount without more to the English offence of perverting the course of public justice, because perverting a course of justice is neither frustrating nor obstructing (nor blocking it per se) but rather distorting or diverting it in some way.
The Judge ruled the US had failed to establish that Mr Dempsey had intended to pervert the course of justice or committed any English criminal offence. The court also accepted that the consequences of the conduct alleged were such that English law would not provide for extraterritorial jurisdiction under similar circumstances.
The court accepted Mr Dempsey’s case that he could not have intended to prejudice the US criminal investigation without being aware that his interview was being conducted pursuant to particular criminal or judicial proceedings and so the mens rea had not been made out.
As a result, the court ruled that the Government had not established the conduct it alleged gave rise to an extradition offence and ordered Mr Dempsey’s discharge.
The US Government is appealing to the High Court.
Ben Cooper was instructed by John Howey at JFH Crime