Territoriality, criminal jurisdiction and remote cyber offending: The problematic legacies of Australia’s Hew Griffiths case
Dr Sally Kennedy1, Dr Ian Warren2
1Deakin University, Melbourne, Australia
2Deakin University, Geelong, Australia
Drawing on the prominent Australian case of Hew Griffiths, this paper outlines the range of factors associated with extradition and transnational online intellectual property offending. This case is an important precursor to many subsequent criminal prosecutions initiated from outside the jurisdiction where the online harm originated. This pattern poses numerous problems for an extradition system based on identifying and apprehending fugitives from requesting jurisdictions, because it extends the notion of a ‘fugitive’ to individuals who might never have entered the requesting nation. In documenting key legal issues emerging from the progression of available verdicts in the Griffiths case, we identify several problems in the operation of Australia’s extradition laws from the time a suspect is identified to the point of completing an offshore sentence. We show how the strategic decision in the requesting nation to initiate conspiracy charges has implications for shifting the jurisdictional site of the offending to favour extradition. We also demonstrate how Australian legal requirements that remove the presumption of bail for transnational fugitives limit the prospect of mounting a fair defence against extradition and during a foreign trial. Finally, we demonstrate how determinations by international organisations such as the United Nations Human Rights Committee (HR Committee) can have limited direct influence on these national processes. We critically discuss the implications of the Griffiths case in light of the evolving role of extradition law in digital spaces and the contradictions these issues present for established theories of jurisdiction founded on the principle of territoriality.
Dr. Sally Kennedy is a Sessional Academic and Research Fellow in Criminology at Deakin University (Victoria, Australia). She specialises in transnational justice administration in national courts. This includes research examining extradition, territorial sovereignty and sovereign power, legal geographies within the digital environment, treaty compliance, individual rights and fairness, and global crime control.
Dr. Ian Warren is a Senior Lecturer in Criminology at Deakin University (Geelong, Australia). His research specialises in criminological and socio-legal issues relating to transnational criminal law, including extradition and evidence transfer, technology and policing, and public accountability for justice agents and agencies.