Owen Bowcott examines the legal implications of the O'Dwyer case for the future of extradition arrangements between UK and US
Lawyers for Richard O'Dwyer used a novel legal arrangement to avoid the undergraduate being forcibly extradited to America where he is wanted on breaching film copyrights.
His barrister, Edward Fitzgerald QC, told the high court that the 24-year-old had made a 'Deferred Prosecution Agreement' (DPA) – a mechanism designed to negotiate settlements in economic crimes which the UK is in the process of adopting.
The surprise deal reached between the US prosecuting authorities and O'Dwyer's legal team could potentially be a trailblazing example that may smooth the way to resolving other protracted extradition cases involving financial claims.
In O'Dwyer's case, agreement seems to have allowed plea-bargaining to take place before the painful process of removal from the UK. Since many extradited Britons subsequently negotiate a reduced sentence once they come before a US court, it offers the opportunity to short-circuit years of litigation.
Campaigners against extradition have accused the agreement between the US and UK as being tilted in favour of the States. The home secretary's decision last month to block the removal to America of the alleged computer hacker Gary MacKinnon may have encouraged the Washington authorities to reach an advance deal with O'Dwyer rather than risk a further high profile defeat.
DPAs are increasingly being used in the US. Last month the Ministry of Justice announced that they would be introduced into the UK mainly for use in complex fraud cases.
According to the MoJ, a Deferred Prosecution Agreement is "an agreement between a prosecutor and an organisation where, in return for complying with a range of stringent conditions, the prosecutor would defer a criminal prosecution.
"The process will be scrutinised by an independent judge and the threat of prosecution will remain hanging over an organisation should it fail to comply fully with the agreement."
Announcing last month that DPAs would be available in the UK, the justice minister, Damian Green, said: "Deferred Prosecution Agreements will give prosecutors an effective new tool to tackle what has become an increasingly complex issue. It will ensure that more unacceptable corporate behaviour is dealt with including through substantial penalties, proper reparation to victims, and measures to prevent future wrongdoing."
Referring to the O'Dwyer deal, the Labour MP Keith Vaz, chair iof the Commons Home Affairs select committee, said: "I welcome the agreement which means Richard O'Dwyer will not be extradited to the US.
"However, Richard should not have had to go directly to the US to negotiate. Ministers should use their discretion to prevent extradition in cases which are patently unjust.
"The US extradition treaty was not negotiated on a level playing field and remains unbalanced. As the home affairs committee recommended in March, we need to amend the treaty and introduce an evidence test."