The Show (And Tell) Trial

Is Kim Dotcom bound to get a raw deal at his extradition hearing?
by Gordon Campbell

The world used to be a simpler, black and white place. The fugitives being sought for extradition used to be alleged bank robbers or murderers or fraudsters where – once the false moustache and dyed hair had been done away with – it was obvious that their activities had been criminal in nature. Back then, extradition was just a matter of filling in the forms properly, and sending the miscreants home to face the music.

The extradition of the Internet entrepreneur Kim Dotcom is a sign of how much has – or should have – changed. The realities of global commerce and political asylum now routinely call into question whether certain activities really do constitute criminal behaviour, as claimed by the requesting country. At the same time, the failings of security and enforcement agencies since 9/11 should preclude their claims from being taken at face value any longer. In the case of Dotcom and his colleagues, there is considerable room for doubt as to whether his alleged copyright infringements involve behaviour that is truly criminal in nature, even under US law.

As a result, the extent of evidence that can reasonably be expected from the US authorities to support their Dotcom extradition request is being fought out bitterly in our courts, at great expense. Our District Court and High Court had agreed that – in their reading of the relevant treaties and statutes – Dotcom’s rights to natural justice and the judge’s ability to make informed judgements about the extradition request require the US to disclose a good deal of the supportive evidence. Given the current tools of electronic discovery, it would not have been particularly difficult to sift through the evidence accordingly.

On March 1st 2013 however, the Court of Appeal disagreed, for reasons this article will try to summarise. According to the Court of Appeal, the same set of treaties and statutes require the US to offer New Zealand and the Dotcom defence team little more than a “ record of the case” summary of what the US says it intends to bring to any eventual trial. The US has to be assumed to be acting in good faith and with candour. As the Court of Appeal ruling puts it at para 106 -108:

Subject to that [ good faith and candour] it is for the requesting state to decide what information it wishes to put before the requested state in support of its request…The suspect is entitled to challenge the reliability of the record, whether by argument or leading evidence.

Where such a challenge occurs though, the Court of Appeal reasoned [para 106] an extradition court in New Zealand can only undertake a limited weighing of the evidence. Just how limited the role it envisages becomes clear at para 108 :

“A challenge which does not go the reliability of material in record but to its interpretation – that is, to the inferences that should be taken from it – is more appropriate to a trial than to an extradition hearing.

Astonishing, really. ‘Trust your friends’ is apparently not just an option under the Court of Appeal ruling, but part of our binding international obligations – unless the defendant can somehow prove otherwise, while labouring under significant constraints in doing so. One thing we do know is that all parties agree the case against Dotcom is a circumstantial one. Yet if one accepts the Court of Appeal’s reasoning, any meaningful challenge would be virtually impossible to mount at the extradition hearing. Mainly because the Dotcom legal team are being denied access to the relevant evidence, but also because the Court of Appeal believes it would not be appropriate for any substantive test of the evidence to occur at the extradition hearing phase. Very hard to test the logic that the US is using to tie its circumstantial case together, under those conditions.

Not surprisingly then, the Dotcom defence team are seeking leave to appeal to the New Zealand Supreme Court in a bid to overturn the Court of Appeal decision. If leave to appeal is granted, the time required for a substantive hearing and judgment make it very unlikely that Dotcom’s extradition hearing can take place in August, as is currently planned. After all, the Court of Appeal took six months to reach and write up its decision on the same issue. Given the complex elements involved and the far reaching consequences, the Supreme Court would hardly want to rush its deliberations to fit an arbitrary timetable.

Why should the Supreme Court agree to hear the extradition case? For one thing, the appropriate test of evidence for extradition purposes hasn’t been fully decided before, not by our highest court. Also, the criminal copyright offences facing Dotcom and Co have never been tried before, not even in a US courtroom – so what would constitute a prima facie case in the Dotcom proceedings is not self evident. Extradition requests involve matters of policy. They involve the meaning of statutes. They involve the relationship between the statutes and international treaties. All up, that’s why one legal authority spoken to for this article said they would be ‘ astonished” if the Supreme Court refused to hear the case. “This is what the Supreme Court is there for. We need to have some definitive, authoritative rulings from the highest court in the system to clarify the law for the future, because rest assured, [Dotcom] is not going to be the last extradition case.”

At base, extradition hearings are about striking a balance. On the one hand, the public has an interest in having a speedy and efficient extradition process to enable the prosecution of crime. Yet by the same token, you would expect that before anyone gets uprooted from their home and family life to face court action in another country, something more than a rubber stamp on the paperwork should be required. The argument over Dotcom’s extradition is about how much evidence needs to be presented to the hearing before he gets removed to the US to face trial. Or gets removed to face indefinite detention in a US Supermax prison while the US decides whether or not it will actually put him on trial.

The main problem for Dotcom? As it is currently being interpreted, extradition law has not caught up with the post 9/11 frailties and uncertainties of legal process. The relevant rules, as interpreted by the Court of Appeal anyway, belong to a bygone era of relative innocence. As currently construed, an extradition hearing is not a normal adversarial arena where the evidence can be tested, or inferences drawn about likely guilt or innocence. It is less than a trial, yet supposedly, something more than just an administrative procedure. In nature, it is part prosecutorial, part judicial, and part political. This hopelessly fuzzy identity helps to explain why so much room exists for dissent over what level of disclosure should be treated as sufficient for an extradition hearing, according to our current laws and treaties.

Before looking at where the Court of Appeal drew the line and why, it may be useful to recap just what the US is accusing Dotcom and his colleagues of doing. As the Court of Appeal says, Megaupload offered storage facilities for electronic files that users of the site could share, and where financial incentives existed for uploading popular files, based on the number of downloads. Paragraph 8 of the Court of Appeal judgment gives a basic outline of the US reasoning :

From an analysis of databases found on Megaupload’s servers, the United States alleges that a small proportion (slightly over one per cent) of Megaupload subscribers were premium subscribers, the remainder it says did not have significant capability to store content long term. Further it says that less than nine per cent of Megaupload’s subscribers had ever uploaded material. It argues that this data indicates that most users accessed Megaupload in order to view and download content. It says that most of the uploaded rules were infringing copies of copyrighted works and alleges that Megaupload’s “ purposefully made their rapid and repeated distribution a primary focus of their infrastructure.”

Even if this were so, that gets the US only halfway there. Copyright infringement if proven, tends to be a civil offence liable only to civil remedies, not criminal ones. You can’t be extradited for civil offences. Moreover, Megaupload can also point to the protections offered by the Digital Millennium Copyright Act (DMCA) which offers internet service providers – such as itself, Youtube and many others – a ‘ safe harbour’ from copyright suits that are based on how their customers happen to use the services they provide.

This ‘safe harbour’ refuge however, depends on certain criteria being met. The US is arguing that Megaupload was deliberately ineffectual in its use of the takedown procedures it had in place. Which finally gets us to what’s entirely novel about the Dotcom case. In the past, the likes of Napster were pursued – like Dotcom – for “contributory” copyright infringement via the actions, services and assistance they provide to the customers who do the actual infringing. Yet even Napster was still a civil case. What’s unique here is that Dotcom is being charged with contributory copyright infringement construed as a criminal conspiracy. That offence doesn’t exist under NZ law. Our only criminal copyright conspiracy provisions – in section 135 of the Copyright Act – are to do with users, not contributories.

Dotcom is also the first criminal copyright infringement case by a contributory party to be brought under US law as well. Almost certainly, the only way that Dotcom can be hauled into extradition hearings in New Zealand is via something called the UN Convention on Transnational Organised Crime (2000) – which seeks to crack down on organized criminal gangs operating across national borders. This UN Convention doesn’t feature at all in the Court of Appeal extradition ruling. So, we are currently none the wiser about how this crucial lynchpin in the Dotcom case is supposed to interact with our existing laws and treaties at his extradition hearing. Further food for thought for the Supreme Court, perhaps.

So to recap : the offences for which Dotcom and Co are being pursued do not appear in our 1999 Extradition Act. These offences don’t fall within the US/NZ extradition treaty of 1970, either. This matters because of a basic concept enshrined at section 4 of our Extradition Act called “dual criminality” – which holds that an extraditable offence has to be a crime in the country requesting the extradition, and also be a crime in New Zealand as well. In Dotcom’s case the type of copyright offences alleged, and all the downstream RICO racketeering and money laundering charges that follow in its wake are all peculiar to American law. Only the UN Convention mentioned would seem to get the case across the ‘dual criminality’ threshold.

It is still a stretch, though. As an offence, ‘criminal contributory copyright infringement’ sounds like trying to prosecute the president of a gun club for ‘contributory bank robbery’ because some club members used their pistols to rob Wells Fargo. You need to be able to prove that the founders of the gun club always had bank robbery in mind. In Dotcom’s case, some of the supportive evidence of the mega-conspiracy that has emerged to date – such as an email along the lines of “Ho ho ho, we’re pirates” – isn’t very convincing. It could be taken literally, as a heartfelt criminal confession. It could also be a joke, or a boast along the lines of “ What a merry bunch of buccaneering entrepreneurs we are.” But that would be to make an inference about the evidence. Something the Court of Appeal ruling resolutely forbids.

In other words, evil can exist merely in the eye of the beholder. (ie. Dotcom’s mega-conspiracy may itself be only a US conspiracy theory.) As the Court of Appeal says (para 10) “ the United States case against Megaupload and Mr Dotcom is largely circumstantial. Moreover it is strongly contested.“ You bet.

As mentioned, the Court of Appeal thinks that the US needs only to provide a “record of the case” summary of the evidence it plans to bring to trial. This still has to meet the level of a prima facie case, but – in the Court of Appeal’s opinion at least – the extradition hearing has little or no role in assessing the reliability of the case being presented by the US. That’s partly because the Court of Appeal believes in fostering a speedy and efficient extradition system. Significantly, the Court of Appeal notes (para 11) “ There is no affidavit material before us explaining what particular difficulty Mr Dotcom says he will face if extensive disclosure is not provided.” In the Court of Appeal’s judgment :

If suspects were entitled to extensive disclosure of documents on the basis that they wished to challenge the evidence at the extradition hearing, the procedure would lose much if not most of its efficacy. The Court stated that Parliament did not intend that to be the case. In the absence of cogent evidence to the contrary, an extradition court is entitled to expect that a requesting state will have met its obligations of candour and good faith when compiling the record of the case.

As mentioned then, it is up to Dotcom to somehow prove that things are not as they are said to be, even while being denied the means of doing so. If this sounds familiar, it could be because New Zealand has been here before. Putting the onus onto a defendant to disprove allegations in a situation where they are being simultaneously being prevented from knowing key aspects of the circumstantial case being made against then, and have little more than a summary of assertions to go on is, of course, exactly what happened here in the Ahmed Zaoui case.

How can Dotcom definitively state in an affidavit what “ particular difficulty” the evidence kept secret from him might cause? As former US Defense Secretary Donald Rumsfeld would say, the extent and the nature of the current difficulty Dotcom faces going into his extradition hearing is an unknown unknown. In Rumsfeld’s immortal formulation : :

There are known knowns; there are things we know we know. We also know there are known unknowns; that is to say, we know there are some things we do not know. But there are also unknown unknowns – the ones we don’t know we don’t know.

Well, exactly. Beyond the mandatory genuflection to Dotcom and Co’s rights to due process, the Human Rights Act dimension is virtually invisible in the Court of Appeal ruling, at least when it comes down to any perceived balance in the disclosures essential for a fair hearing to take place. It is perhaps worth noting that the Court of Appeal judgement was written by Justice Terence Arnold [pictured left] who, as Solicitor General, prosecuted (and lost) most of the cases against Ahmed Zaoui. Stuart Grieve QC – who was the special advocate appointed in the Zaoui inquiry – has been appointed as special advocate in this case as well, and will argue on Dotcom’s behalf about the admissibility of the secret evidence illegally gathered by the GCSB.

There are three main legal elements to the Dotcom extradition case – four if you count the New Zealand Bill of Rights. These are our Extradition Act 1999 available here the NZ/US Extradition Treaty of 1970 available here, and the UN Convention Against Transnational Organised Crime that is the main source of the stuff about criminal conspiracy is available here.

We are likely to hear a lot more about this Convention as the Dotcom case progresses.

To be brutally brief, the District Court /High Court reasoning went like this. Section 27 of our Bill of Rights gives Dotcom and Co a right to natural justice. Section 25 of the our Extradition Act says :

A record of the case must be prepared by an investigating authority or a prosecutor in an exempted country and must contain (a) a summary of the evidence acquired to support the request for the surrender of the person; and (b) other relevant documents, including photographs and copies of documents.

Note that “must contain…other relevant documents“ bit. That’s the trigger mechanism for Dotcom to expect ample disclosure as of right. Also relevant is the test at s 24 (2)(d) which says that the person is eligible for surrender to extradition only “ if the court is satisfied that the evidence produced or given at the hearing would….justify the person’s trial if the conduct constituting the offence had occurred within the jurisdiction of New Zealand.” This reflects the same position stated at article four of the US/NZ treaty, which recognises the requesting state needs to make a prima facie case against the defendant, such as would enable him or her to be committed for trial if the alleged offence had been committed here. Shorn of the trimmings, that’s the basis for why the District Court/High Court ruled that the US need to produce reasonably extensive evidence.

In taking a contrary line, the Court of Appeal argued that the evidence disclosure required to meet such a test in this case should not be so extensive as to jeopardise the “ efficacy” of the extradition process – which in its view, is based on this being a timely, efficient process that respects the competence, good faith and candour of the requesting state and the limited role of the presiding judge. ( It seems that Court of Appeal hasn’t much of a clue about modern electronic discovery tools, which would make disclosure a walk in the park that would jeopardize neither timeliness or efficacy.) In addition, the Court of Appeal initially made much of article 12 of the US/NZ Extradition Treaty 1970 ( see paras 51-53, 62 and 64 of the ruling) as a counterweight to the need to provide extensive evidence, given that article 12 allows the extradition judge to seek more information from the US. Meaning : if this isn’t enough, Dotcom can always – like Oliver – ask for more.

Well, that didn’t work out for Oliver, either. Having cited article 12 to satisfy any qualms about the adequacy of the initial evidence, the Court of Appeal then promptly slammed that door shut again (para 54) by noting that the US would be under no obligation to comply with such requests and would be breaking US law if it did so – because under US law, full disclosure occurs only within 30 days of a trial. In similar vein, the Court of Appeal cited a precedent where any request for further information should arguably be limited to clarifying an unintelligible document, or only after evidence had already emerged that there had been an abuse of process by the requesting state.

Having fitted out Dotcom with this evidential straitjacket, it is hard to see how the Court of Appeal ruling enables his due process rights to be adequately protected at an extradition hearing – especially when, in his case, the mere existence of criminality act relies on some very novel readings by the US authorities of a complex web of evidence. The token treatment of the defendants rights is pretty clear from para 91 of the Court of Appeal judgement, which concedes that yes, the suspect is free to challenge the reliability of the case, but hey, hold on : “ That does not mean that a suspect is entitled to full or extensive disclosure from the requesting state before doing so.” In effect the Court of Appeal has interpreted the level of disclosure of relevant documents in a way that encourages the defendant to go fishing, while ensuring he does so almost entirely in the dark.

Even despite the Court of Appeal’s best efforts, there could still be some mileage left in the bad faith & candour argument. As mentioned, one of the challenges Dotcom can make to the “ record of the case’ summary is that there has been bad faith involved, and a lack of candour. It isn’t really clear from the Court of Appeal ruling what amounts to bad faith. Yet what we have with Dotcom is first of all, unlawful surveillance by the GSCB. There is some evidence to suggest that this surveillance became known to be unlawful, but continued regardless.

Then there was an unlawful search and under New Zealand law, which could end up meaning that the fruits of the January 20 search are inadmissible. ( Warning : under Sec 30 of the Evidence Act the court can choose to validate an illegal search. And there is nothing to stop the US from taking the GCSB evidence and using it in a US courtroom. ) Moving right along, the sequestering of Dotcom’s assets was also unlawful, with some suggestion this unlawfulness was also advised beforehand. As for candour…the fact of the known-to- be – unlawful GCSB surveillance was kept a secret from February 2012, until September 2012.

This sequence of illegality/bad faith etc of could be said to have tainted the process – ort at least should put the extradition judge on their mettle, and asking for validation. While these acts of commission and omission were not by the US directly, they were done by agents of the US acting on its behalf and at its request. Are those grounds sufficient for a judge to consider that enough evidence of bad faith exists as to make the extradition request seem unsafe ? Probably not, but the attempt may be worth making. Put it this way : repeated illegalities are not usually taken as a sign of good faith. And hiding a prime example of such illegality for six months is not usually taken to be a sign of candour.

For all the fine talk about the ‘comity of nations’ and our international obligations in the Court of Appeal ruling, many countries only spasmodically recognize the Golden Rule when it comes to extradition. ( Routinely, countries don’t do for others what they seek for themselves.) France does not extradite its citizens, although it regularly makes extradition requests from other countries, even for acts against French citizens that were not committed on French soil.

In the midst of rejecting the UK’s request to extradite Andrei Lugovoi, Russian President Dmitri Medvedev [pictured left] reminded the Brits : ”You have to learn to respect our legal framework. I would like to remind you article 65 of the Russian Constitution says a Russian citizen can’t be extradited for legal proceedings.” That hasn’t stopped the Russians from making extradition requests to Britain. The US is also a dab hand at the double standard. Try extraditing a US soldier for rape in Okinawa, or for criminal acts in Germany : the US tends to demand that it handle such matters itself, within its legal system, on its terms.

In Europe, the pendulum is be swinging back towards national autonomy on extradition, now that much of the heat has gone out of the post 9/11 climate. Serious human rights flaws are now being recognized in the European Arrest Warrant system that was passed in the shadow of 9/11 hysteria, in order to increase the speed and ease of extradition. Last month, the UK finally tabled a set of major amendments to its extradition laws aimed at restoring some balance to the UK system in the wake of several very high profile cases of injustice.

Andrew Symeou for instance, was extradited to Greece on flimsy evidence via a fast track process that exposed him to three years of maltreatment before he was found innocent. The UK computer hacker Gary McKinnon became another extradition cause celebre. In fact, the US request for his extradition incited such public anger in Britain that the Cameron government finally backed down late last year refused to extradite him, ostensibly on health grounds. Ireland has been particularly stubborn about refusing extradition. For instance last year, it rejected a request from France for the extradition of the chief suspect Ian Bailey, in a celebrated murder involving a French film-maker. The Ian Bailey case may be of special interest to the Dotcom defence team. Good faith and candour were an issue here too. Not only was the extradition request by France rejected by the Irish, but an ongoing discovery process continues to uncover false witness statements and undue influence on the evidence by the Irish police. The extradition was also being sought without any firm commitment by the French to put Bailey on trial.

What these and other examples indicate is that the narrow and traditional approach to extradition taken by the Court of Appeal may no longer do. Such a ruling could have been made 30 years ago, given how it ignores what we have since learned about the frailties and the unreliability of prosecuting agencies, and the ease with which the human rights of the defendant can be swept to one side in the name of brisk expediency.

Finally, here is an example of where a clinically detached argument on extradition can end up. Fittingly, it is from Canada. Justice Arnold’s prior experience as a legal academic in Canada may explain why so many Canadian examples crop up in the Court of Appeal judgment to support the conclusion that the scope of an extradition hearing should be kept narrow, and that the record of the case should not, and need not be supported by an extensive amount of evidence. His examples do not include the 2011 Canadian extradition case involving Hassan Diab [pictured left] – even though the presiding judge considered many of the Canadian precedents mentioned in the Court of Appeal ruling ( eg the Shephard, Ferras, and Michaelov cases)

The reason why Diab is interesting is that it envisages a more extensive role for the extradition hearing – before concluding that even though the subsequent evidence divulged is unreliable, Diab should be extradited to France, anyway. Lets consider the rationale given for a more active, analytical role for the extradition judge, at paras 141-142 :

In an extradition case involving circumstantial evidence the judge must weigh the evidence in the sense of assessing whether it is reasonably capable of supporting the inferences that the requesting state is asking the court to draw.

Before reaching that point though, the Diab court felt obliged to sift through the evidence presented in the case summary as to whether there was enough reliable evidence left in the basket to justify extraditing Diab for trial in another country. At para 139, we find this :

It contemplates a two-stage process. The court determines firstly whether or not evidence in the ROC is available for trial [eg in the Dotcom case, what, if any of the illegally gained GCSB evidence is admissible at trial] or is manifestly unreliable, then considers the remainder of the evidence in determining whether or not to commit the person sought.

Clearly, an active two step process of this sort isn’t putting the onus on the defendant to prove the evidence is unreliable or that there has been incompetence or bad faith by the requesting state. Yet incredibly, Justice Maranger found that even though his investigations revealed that much of the evidence against Diab was unreliable, the rules governing extradition left him no room to do anything other than send Diab back to France. Here’s how he concluded at para 191 :

The fact that I was allowed to scrutinize the report to the degree that I did, together with the lack of other cogent evidence in the ROC, allows me to say that the case presented by the Republic of France against Mr. Diab is a weak case; the prospects of conviction in the context of a fair trial, seem unlikely. However, it matters not that I hold this view. The law is clear that in such circumstances a committal order [for extradition] is mandated .:

Do we really want the Dotcom case to end up with this same kind of travesty? One where, in line with the Court of Appeal argument, the judge at the extradition hearing feels that his role is so necessarily limited that he must send the defendant back to face trial, even on the basis of dodgy evidence? As it happens, France still hasn’t decided whether to put Diab on trial anyway. One wonders what guarantees the US has given – or needs to give – to New Zealand as to whether the US will ultimately put Dotcom on trial. Not that our extradition hearing here could hope to get any meaningful commitment on that point anyway. The US may be intending to let Dotcom and his colleagues cool their heels in a US maximum security jail for years, while its prosecutors decide whether the evidence really is strong enough to take them to trial. Our extradition hearing – at least in the form envisaged by the Court of Appeal – seems unable to prevent New Zealand from being an accomplice in that kind of charade.

In striking a better balance, our Supreme Court would have to devise a formula whereby the extradition hearing remains something less than a trial, but is something a good deal more than an administrative rubber stamp – and where all the assumptions about efficiency, good faith and candour (or lack of same ) are not tossed over to one side of the fence. Globally, the trend appears to be towards more substantive extradition hearings. In late March, I interviewed Lord Nicholas Phillips of Worth Matravers, the recently retired Chief Justice of the UK Supreme Court about where the trends in extradition law are headed. ( One of Phillips’ rulings features prominently in the Court of Appeal’s judgment on Dotcom’s extradition. ) Given that the criminality of some kinds of commercial fraud, copyright abuse etc. are no longer clearcut, did Lord Phillips think it inevitable that extradition hearings will need to become more substantive ?

“I think they certainly have become more substantive,” Phillips replied. “Extradition has always been a difficult area. In the old days, you could challenge the case being made against you by the country seeking to extradite you and say there’s no primary facts to justify the charges they are making and in England, there would then be an investigation of that, before an English court. That’s all changed now and the English court is really required to take on trust the fact that there is a case against the defendant. To that extent, the exercise has become less complex. But that has been balanced now by attacks on human rights grounds…”

In the Bow St Magistrates Court case cited by our Court of Appeal, Lord Phillips likened extradition to a criminal procedure, but one of a very special kind. So how did he think it differed? “ Criminal proceedings fundamentally involve proving the facts that will demonstrate guilt beyond reasonable doubt. In an extradition hearing, that exercise is not done at all. The extradition hearing is really involving public law, not criminal law. So you have to look at the relevant Convention under which extradition is being sought, see what its requirements are, and see that they are satisfied.” At the same time, he said, there’s an added requirement to acknowledge the defendant’s right to family life – before uprooting them – as is guaranteed them under sec 8 of the European Convention on Human Rights.

Right. And before people are uprooted from their families, surely there has to be proven substance to the extradition request, since it isn’t just a matter of seeing the paperwork is in order and giving it a rubber stamp, is it? “No, it isn’t. Although that’s part of it.” So what’s the test that the infringement of liberty has been balanced sufficiently against an evidential requirement? Again though, Phillips was unwilling to let the extradition hearing go very far down that road. “The evidential requirement that goes to the case being made against the individual is not re-investigated in the country that has received the request for extradition. We under European law have to accept that if country A is seeking extradition on a particular charge, that there is case on the facts against that individual, barring bad faith..”

That doesn’t meet the human rights of the defendant though, does it? Phillips agrees, but accepts it is the current situation. “The country from which extradition is requested is to some extent, ticking boxes. Because the fundamental principle is “ Trust your neighbour. Trust your neighbour to have done their homework properly in deciding whether there is a case that justifies extradition. You don’t review that. “

Oh really? Given the failings of security and enforcement agencies since 9/11, doesn’t the “Trust us, we know what we’re doing“ approach now totally lack public credibility? “Well you’re right,” Phillips replies. “And not everyone is convinced that all our neighbours justify the faith that we’re putting in them in this respect. But that really, ultimately, is a matter for a government to decide when signing up to a treaty. Once they’ve done so, the international obligations are there.”

That – unfortunately – is the hook on which Dotcom is currently being hung. His rights to freedom and family life and to reside here aren’t very well protected by our current extradition law and practice. Somehow, he has to convince the Supreme Court that in this day and age, putting more meat on the skeletal evidence currently available to him will far more accurately satisfy the needs of justice.


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