JURISDICTION IN CYBER CRIME

Carolissen v Director of Public Prosecutions [2016] 3 All SA 56 (WCC)

Criminal procedure – Extradition – Order acceding to extradition request by foreign State – Appeal – Court discussing issue of jurisdiction with regard to cyber crime – Concept of double criminality – Principle of double criminality requires that the conduct claimed to constitute an extraditable crime should constitute a crime in both the requesting and the requested State, and it is not necessary that the offence should have the same name in both States, provided that it is substantially similar.

Words and phrases – “extraditable offence” – Section 1 of the Extradition Act 67 of 1962 – Refers to any offence which in terms of the law of the Republic and of the foreign State concerned is punishable with a sentence of imprisonment or other form of deprivation of liberty for a period of six months or more, but excluding any offence under military law which is not also an offence under the ordinary criminal law of the Republic and of such foreign State.

 

In November 2014, the appellant was arrested pursuant to a request from the Government of the United States of America (“the USA”). In January 2015, the USA formally requested extradition of the appellant.

The magistrate dealing with the extradition application referred the appellant for mental observation after the appellant raised the issue of his mental health. A report was issued by a full panel of mental health practitioners, stating that the appellant was not mentally ill, was not certifiable in terms of the Mental Health Care Act 17 of 2002, was fit to stand trial and was able to appreciate the wrongfulness of the alleged offences. The magistrate then had to decide whether the offence in respect of which appellant was sought by the foreign State was an extraditable offence; whether the appellant was “liable” to be surrendered to the foreign State concerned; and whether there was sufficient evidence to warrant a prosecution for that offence in the foreign State.

Held – An “extraditable offence”, in terms of section 1 of the Extradition Act 67 of 1962, means “any offence which in terms of the law of the Republic and of the foreign State concerned is punishable with a sentence of imprisonment or other form of deprivation of liberty for a period of six months or more, but excluding any offence under military law which is not also an offence under the ordinary criminal law of the Republic and of such foreign State”. In terms of section 3(1) of the Act, any person accused or convicted of an offence included in an extradition agreement and committed within the jurisdiction of a foreign State, a party to such agreement, shall, subject to the provisions of this Act, be liable to be surrendered to such State in accordance with the terms of such agreement. Determining what constitutes “an offence included in an extradition agreement” necessitated an assessment of the extradition treaty between the Republic of South Africa and the United States of America.

Section 10(2) of the Act provides for a certificate issued by the appropriate prosecution authority in the foreign State to serve as conclusive proof that there is sufficient evidence to warrant a prosecution in the State concerned. If such a certificate is relied upon, the magistrate must be satisfied that it was in fact issued by an appropriate authority in charge of the prosecution in the foreign State. The magistrate delivered a considered judgment and issued an order committing the appellant to prison to await the decision of the Minister of Justice and Constitutional Development (“the Minister”) with regard to his surrender to the USA. Having been informed thereof by the magistrate, the appellant exercised his right to appeal to this Court under section 10(1).

The primary issue raised in this matter involved the question of whether the offences with which the appellant was accused were committed within the jurisdiction of the USA. The offences in question related to child pornography. The Court raised the question of whether the District Court for the District of Maine in Portland had the jurisdiction to prosecute the appellant. The US authorities relied on an assertion that the appellant had emailed pornographic images of children to an agent in Maine. However, the Court was not satisfied with the assertion. Regarding the USA’s extra-territorial jurisdiction, it is established law that it is open to a sovereign State to enact legislation permitting it to prosecute within its own jurisdiction suspects who have committed crimes elsewhere in the world, where those crimes might ultimately have a deleterious effect in the territorial jurisdiction of the requesting State. The Court was referred to authorities in which it was stated that cybercrime (that being the nature of the offence relevant to the present matter) is essentially “a-territorial”. In light of confirmation that the appellant had been found by a grand jury to be indictable in Maine, the Court was satisfied that the USA had made out such a prima facie case and the concerns regarding jurisdiction had been adequately addressed.

Next the Court explained the concept of double criminality in extradition matters. The principle of double criminality requires that the conduct claimed to constitute an extraditable crime should constitute a crime in both the requesting and the requested State. It is not necessary that the offence should have the same name in both States, provided that it is substantially similar. The Court is required to consider the substance of the proscribed conduct. In this case, the Court was satisfied that the double criminality requirement had been met in respect of counts 1–3 for which the appellant was to be indicted in Portland, Maine.

Before the appellant could be found to be extraditable, article 2(1) of the treaty required that the offence concerned must attract punishment of at least one year’s imprisonment. That requirement was also met in this case.

The Court was thus satisfied that the magistrate correctly applied the relevant legal principles and the treaty. The appeal was, accordingly, dismissed.

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