Domminich Shaw v Government of the United States of America
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens,MR JUSTICE NICOL |
| Judgment Date | 18 November 2014 |
| Neutral Citation | [2014] EWHC 4654 (Admin) |
| Docket Number | CO/3090/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 November 2014 |
[2014] EWHC 4654 (Admin)
Lord Justice Aikens
Mr Justice Nicol
CO/3090/2014
THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Ben Brandon (instructed by Hodge Jones & Allen LLP) appeared on behalf of the Appellant
Miss Adina Ezekiel (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent
This is an appeal by Domminich Shaw ("the appellant") in relation to his proposed extradition to the United States of America, which is a category 2 territory to which Part 2 of the Extradition Act 2003 ("the EA") applies. The appeal is brought, under section 103 of the EA, from the Ruling and order of District Judge Nicholas Evans, dated 6 May 2014, whereby he ordered that the case be sent to the Secretary of State for the Home Department ("the SSHD") for her decision on whether to order the extradition of the appellants to the USA. On 20 June 2014, the SSHD did order the appellant's extradition and he was so informed on 24 June 2014.
The appellant is a UK citizen and is now aged 34. The extradition request is in respect of an indictment filed by a grand jury before the US District Court of the Southern District of Indiana on 23 February 2011. The indictment contains 29 counts, of which the appellant is charged on 26. All relate to child pornography. Count 1 is a charge of conspiracy to distribute and receive child pornography. Count 2 is a charge of conspiracy to commit the sexual exploitation of children. Counts 2 to 22 are charges of the distribution of child pornography. Counts 25 to 29 are charges of the sexual exploitation of children.
In relation to the two conspiracy counts, there are six alleged co-conspirators.
The Factual Background to the Charges
The charges, and those against various co-defendants, arose out of an international police operation conducted by the United States, the United Kingdom and various other European police authorities known as "Operation Bulldog". This was described as a "large, international effort to investigate and dismantle those involved and associated with [a] child pornography distribution ring".
On 17 November 2010, a search warrant was executed at the address of Mr David Bostic, a United States citizen who lived in Indiana. Investigations and the interview of Mr Bostic followed and established that he possessed and had distributed large quantities of child pornography. Mr Bostic admitted searching for, downloading and distributing child pornography and also producing child pornography involving children under the age of 5 years and, in many cases, under the age of 2 years. Some of these matters involved babies of only 1 or 2 months old. Investigation of his email account indicated that he had distributed child pornography to others on a worldwide scale, through being part of an email group containing several dozen members. The administrator of this group was the appellant.
On 17 December 2010, the US District Court in Indiana issued a search warrant, which was served on the appellant's email provider in the United States. The stored content of the appellant's email account was disclosed to the US investigators on 3 January 2011. This revealed some 3000 emails which evidenced conduct by the appellant, and can be summarised as follows:
"(i) Since June 2009, the Appellant had communicated with several individuals concerning a sexual interest in children, often trading in child pornography with them.
ii) By October 2009, the Appellant was communicating with several dozens of people in the same vein, in particular on 8 October 2009.
(iii) Up until January 2011, the Appellant was receiving email communications from members of the Appellant's email group attaching pornographic images of children and concerning the trading of similar files.
(iv) Between 8 October 2009 and 17 January 2011, the Appellant had sent and received dozens of email communications and on at least 24 occasions, there were exchanges between members of the Appellant's email group involving the Appellant either sending or receiving an email which:
(1) attached child pornography,
(2) contained hyperlinks to locations [on the Internet],
(3) or sought and offered to distribute and receive child pornography in the future.
(v) Almost all of the images shared between members of the appellant's email group depicted children under 5 years and (usually between O-2 years) engaged in sexually explicit conduct."
On 28 January 2011, the appellant was arrested at his home in London and a search warrant was executed at his home address. A number of digital storage devices were taken. An examination of some of this material showed that it contained a large number of indecent images of children, totalling about 18,000. There were also images of deceased and mutilated infants. That material has not, I understand, been provided to the United States authorities.
At the time of his arrest, on 28 January 2011, the appellant was on licence, having been sentenced to a 5-year prison sentence at Maidstone Crown Court in November 2005 for offences of indecent assault on a female under the age of 14, contrary to the Sexual Offences Act 1956. In June 2011 the appellant was arrested on a warrant issued pursuant to section 71 of the EA. The extradition proceedings were adjourned at the time because the appellant was still completing the licence part of his sentence of imprisonment.
On 21 December 2011, DC Caroline Bartle of the Metropolitan Police Service (MPS) wrote to the appellant's then solicitors and informed them that no further action would be taken against the appellant in the UK in relation to the images discovered on the devices found at his London home. The letter stated: "the evidence we hold will be supplied to the American authorities for [the appellant] to be prosecuted in the US, alongside their matter, once extradition to the US takes place".
The extradition request was made by the USA on 19 May 2011 and was supported by an affidavit sworn on 28 April 2011 by Mr A Brant Cook, an Assistant US Attorney for the Southern District of Indiana. This gave details of the analysis of the appellant's email account that I have attempted to summarise earlier in this judgment.
There is now some additional information before the court in a letter dated 6 November 2014, which has obviously been adduced since the extradition hearing before District Judge Evans. In essence, this emphasises the fact that it is alleged that the appellant routinely encouraged members of his email group, including Mr Bostic, to produce child pornography and that the appellant would either keep this material for himself or distribute it to others. It is also alleged that this material demonstrates that the appellant encouraged others sexually to abuse children and to create images of the abuse. It is further said that this material demonstrates that the appellant communicated with group members and discussed other potential offences, such as kidnapping children for sexual abuse, abusing children known to group members or finding children in a neighbourhood in order to abuse them. It is said that the appellant acted as the leader of the group and offered suggestions on how to get access to children for the purpose of sexually abusing them and providing images of the abuse to the group. It is suggested that the appellant knew, based on email traffic, that Mr Bostic resided in the United States and that the children Mr Bostic sexually abused also lived in the United States.
The start of the extradition proceedings
The SSHD has certified, under section 70 of the EA, that the request for extradition from the United States had been made in the approved way.
On 16 April 2013, the Appellant's solicitors wrote to DC Bartle and asked her to confirm who made the decision to take no further action against the appellant, and whether such a decision was made in accordance with the Attorney General's 2007 "Guidance for handling Criminal Cases with Concurrent Jurisdiction between the United Kingdom and the United States of America", or whether or not such a decision was made. DC Bartle replied on 30 April 2013. She confirmed the name of the CPS lawyer who had authorised that no further action be taken against the appellant, and stated that the person had since retired. DC Bartle also confirmed that "no evidence has actually been supplied to the US at the present time".
In an undated letter, Mr Andrew Hadik, a Specialist Casework Lawyer at the CPS, wrote to the appellant's solicitors stating that the reviewing lawyer who had dealt with the appellant's matter had retired some months earlier. Mr Hadik said:
"I have looked at the papers currently available to me. The CPS after conducting a careful review determined that it would forgo prosecution of [the Appellant] in connection with his possession of indecent images of children, in favour of [the Appellant's] prosecution by the US authorities."
On 28 May 2013, the extradition proceedings were opened and adjourned.
With regard to the co-accused of the appellant in the Indiana proceedings, since the date of the request for the appellant's extradition, several have appeared before the US District Court for the Southern District of Indiana. The cases of the co-accused have been dealt with (in summary) as follows: Bostic has received 60 years' imprisonment, Kuykendall has received 25 years' imprisonment, Szulborski has received 15 years'...
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