ATTORNEY GENERAL -V- DAVIS, [2016] IEHC 497 (2016) 1

THE HIGH COURT[2014 No. 3 EXT.]

BETWEEN

ATTORNEY GENERALAPPLICANTAND

GARY DAVISRESPONDENT

JUDGMENT of Mr. Justice McDermott delivered on the 12th day of August, 2016

1. On 13th January, 2014 Sergeant Martin O’Neill arrested Gary Davis pursuant to a warrant issued by the High Court under s. 26(1)(b) of the Extradition Act, 1965 dated 9th January, 2014. Sergeant O’Neill having arrested Mr. Davis showed him the original arrest warrant, the original extradition request, the original diplomatic note and the original ministerial certificate in respect of same and explained the purpose of the arrest warrant. He was served with a copy of the original warrant and the other documents. He was conveyed to Bray Garda Station where he was processed. The sergeant explained to him the offences contained in the arrest warrant. Mr. Davis accepted that the passport photograph attached to the warrant identified him. Mr. Davis was then brought before the High Court sitting at Court 21 in the Criminal Courts of Justice, Dublin. The warrant was endorsed as executed and it, together with the original extradition request, the original diplomatic note and the original ministerial certificate are part of the proofs submitted in this case. No issue arises in these proceedings concerning the arrest and detention of Mr. Davis pursuant to the terms of the warrant or his identity.

The Warrant

2. A warrant for the arrest of Mr. Davis was issued by United States Magistrate, Judge James C. Francis IV of the United States District Court for the Southern District of New York on 5th December 2013 alleging that Mr. Davis committed the following offences:
3. Count 1: Conspiracy to distribute narcotics in violation of 21 U.S.C. §841(h), 812, 841(a)(1), 841(b)(1)(A) and 846, which carries a maximum penalty of life imprisonment;
4. Count 2: Conspiracy to commit computer hacking in violation of 18 U.S.C. §1030(a)(2) and 1030(b), which carries a maximum penalty of five years imprisonment; and

iii. Count 3: Conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i), 1956(a)(1)(B)(i) and 1956(h), which carries a maximum penalty of twenty years imprisonment.

3. An indictment in case number 13 CRIM 950 had been filed in the United States District Court for the Southern District of New York on 5th December 2013 charging the respondent with these offences. The warrant for Mr. Davis’s arrest issued based on that indictment and remains valid and executable. It is the basis of this request for extradition which was made pursuant to a diplomatic note dated 3rd January, 2014.
4. The background circumstances said to provide probable cause to believe that Mr. Davis committed the crimes with which he is charged are set out in the request as follows:

“The Silk Road website provided an online anonymous marketplace for illegal drugs and other illegal goods and services, including computer hacking services. The investigation by U.S. authorities has revealed that the website began operating in or about January 2011 and that the website provided a forum through which many types of illegal drugs, including heroin, cocaine, methamphetamine, ecstasy, and LSD, were sold. The website provided an infrastructure similar to well known online marketplaces such as Amazon Marketplace or e-Bay, allowing sellers and buyers to conduct transactions online. However, unlike such legitimate websites, Silk Road was designed to facilitate illegal commerce by ensuring absolute anonymity on the part of both buyers and sellers.

Through their investigations, U.S. authorities were able to identify the owner and operator of Silk Road as a U.S. citizen named Ross William Ulbricht (“Ulbricht”). U.S. authorities have learnt through their investigation that Davis was a member of Ulbricht’s support staff and specifically operated as one of two Silk Road site administrators.

From in or about January 2011 up to and including in or about October 2013 Davis and other members of the conspiracy both known and unknown intentionally and knowingly conspired to violate the narcotics laws of the United States, to wit distribute and possess with intent to distribute controlled substances. In addition to providing a platform for the purchase and sale of illegal narcotics, the Silk Road website also provided a platform for the purchase and sale of malicious software designed for computer hacking such as password stealers, key loggers, and remote access tools.

Additional confirmation of Davis’s role as a member of the Silk Road was uncovered from the computer seized in connection with Ulbricht’s arrest. Ulbricht’s computer was found to contain a folder named “Ids” where he stored copies of identification documents he required his employees to provide to him in order to get paid. Included within the folder was an image file titled “libertas.jpg”. The file is an image of an Irish passport held in the name of Gary Davis with a date of birth of February 27, 1988”.

5. Further details of the alleged involvement of Mr. Davis in these offences are set out in the affidavit of Serrin Turner, Assistant United States Attorney for the Southern District of New York in support of the extradition request.
6. The investigators in the United States are said to have discovered that transactions carried out on the Silk Road website were concluded using “Bitcoin” accounts. On making a purchase on “Silk Road” the purchaser made a Bitcoin payment to a Silk Road Bitcoin account which was held in escrow in a “wallet” maintained by Silk Road pending the completion of the transaction. TheBitcoins were then transferred to the Silk Road Bitcoin address of the vendor and could be withdrawn by sending them to the vendor’s Bitcoin address outside Silk Road. They could then be encashed for real currency. Silk Road charged a commission of 10-15% for each transaction. Silk Road also advertised and used a process known as a “tumbler” which sought to obscure the link between the parties involved and effectively assist in the laundering of criminal proceeds. The total revenue earned by Silk Road between 6th February, 2011 and 23rd July, 2013 was said to be $79.8million by way of commission.
7. Davis is said to be an administrator of the Silk Road site known as “Libertas”. His involvement is said to be evidenced by messages found on the site. He is alleged to have commenced working for the site on 6th June, 2013 having provided services at a lesser level for one month before that date. The messages are said to provide evidence of his knowledge of the transactions which he was alleged to have facilitated and advised upon and their illegality. His weekly salary is said to have been $1500. It is claimed that private messages from Libertas concern efforts he made as site administrator to organise the listing of drugs and other items on Silk Road under specific categories to render its operation more efficient and establish that he was well aware of the illegal nature of the commerce conducted on the site. This included work on listings concerning cocaine, crack cocaine, crystal, and other drugs. Other references concern the categorisation of various items as “weaponry”.

The Offences

8. Count 1 charges Mr. Davis with conspiracy to distribute narcotics. Mr. Turner’s affidavit outlines that the Government’s evidence will establish that from in or about June to October 2013 Mr. Davis served as a site administrator on Silk Road and as such knowingly worked with others to facilitate the illegal distribution of narcotics through the Silk Road website. It is said that the evidence will show that narcotics were distributed through the site. This evidence was obtained from servers used to operate the Silk Road website, evidence obtained from computer devices controlled by Ulbricht and other co-conspirators and evidence obtained from undercover purchases made on the Silk Road website and also material posted by Mr. Davis on the internet.
9. Turner avers that under the laws of the United States:

“A conspiracy is an agreement to commit one or more criminal offences. The agreement on which the conspiracy is based need not be expressed in writing or in words, but may be simply a tacit understanding by two or more persons to do something illegal. Conspirators enter into a partnership for a criminal purpose in which a member or participant becomes a partner or agent of every other member. A person may become a member of a conspiracy without full knowledge of all of the details of the unlawful scheme or the identities of all the other members of the conspiracy. If a person has an understanding of the unlawful nature of a plan and knowingly and wilfully agrees to it, joining in the plan, he is guilty of conspiracy even though he did not participate before and may play only a minor part. A conspirator can be held criminally responsible for all reasonably foreseeable actions undertaken by other conspirators in furtherance of the criminal partnership. Moreover, because of this partnership, statements made by a conspirator in the due course of and while he is a member of the criminal conspiracy are admissible in evidence not only against that conspirator, but also against all other members of the conspiracy. … Therefore statements of conspirators made in furtherance of the conspiracy may be deemed to be the statements of all conspirators.”

10. The crime of conspiracy is distinct from the commission of any specific “substantive crime”, a person may be convicted of conspiracy even where the substantive crime which was its purpose is not committed. The essence of the offence is that the Government must at trial establish beyond a reasonable doubt that:

(1) Two or more persons entered an agreement to commit the underlying offence to distribute narcotics; and,

(2) Mr. Davis knowingly became a member of the conspiracy to commit the underlying offence.

11. Count 2 charges Mr. Davis with conspiracy to commit computer hacking. In respect of this offence the Government must establish beyond reasonable doubt that two or more persons entered an agreement to commit the underlying offence and Mr. Davis knowingly became a member of this conspiracy to commit computer hacking. The evidence proposed in this case is that from June to October 2013 Mr. Davis served as a site administrator on Silk Road and as such knowingly worked with others to facilitate the distribution of malicious software through the Silk Road website knowing that Silk Road users of such software intended to use it to commit computer hacking.
12. Count 3 alleges conspiracy to commit money laundering. Under United States law money laundering consists of conducting or attempting to conduct financial transactions involving property constituting the proceeds of specified unlawful activity including narcotic trafficking and computer hacking. The offence includes knowing that the property involved in the transaction constituted the proceeds of some form of unlawful activity and that the accused intended to promote the carrying on of the specified unlawful activity. It also includes embarking upon such transactions knowing that they are designed in whole or in part to conceal or disguise the nature, location, source, ownership or control of the proceeds.
13. It is alleged that Mr. Davis in serving as a site administrator on Silk Road knowingly worked with others to launder the proceeds of narcotic trafficking and/or computer hacking through the website’s bitcoin based payment system. A system was designed to protect the anonymity of the site users and frustrate the tracing of any funds flowing through the website. It thereby promoted the illegal activity conducted on the site and disguised the nature, location, source, ownership and control of the proceeds of that activity.

The Extradition Request and Correspondence of Offences

14. The requirements of a valid extradition request are set out in Part II of the Extradition Act 1965 as amended. Ireland made a Treaty on Extradition with the United States of America at Washington on 13th July, 1983 which was later amended by the Agreement on Extradition between the United States of America and the European Union made on 25th June, 2003. Under s. 8(1) of the 1965 Act, the Government, by order made under the Extradition Act 1965 (Application of Part II) Order 2000 (S.I. No. 474 of 2000) applied Part II to the United States of America. This was subsequently amended by the Extradition Act 1965 (Application of Part II) (Amendment) Order 2010 (S.I. No. 45 of 2010) which gave effect to the later European Union/United States agreement. Notices of each order were published in Iris Oifigiúil. Section 9 of the Act provides that if a request for the surrender of a person who is being proceeded against for an offence is duly made by the Government of the United States that person “shall … be surrendered to that country” subject to and in accordance with the provisions of the Act.
15. I am satisfied that in accordance with the above provisions and the application of Part II of the 1965 Act as amended, the formalities of Part II have been complied with by the Government of the United States. Under s. 23 a request for extradition has been communicated in accordance with the statutory provisions. Under s. 25 the necessary documents have been supplied and received and the Minister has certified the request received in accordance with section 26. Following certification a warrant was issued by the High Court for the respondent’s arrest under s. 27 and was duly executed as set out above.
16. Section 10 of the 1965 Act as amended concerns extraditable offences and prescribes the requirements for correspondence and minimum gravity. The section insofar as it is relevant provides:

“10.—(1) Subject to subsection (2), extradition shall be granted only in respect of an offence which is punishable under the laws of the requesting country and of the State by imprisonment for a maximum period of at least one year or by a more severe penalty and for which, if there has been a conviction and sentence in the requesting country, imprisonment for a period of at least four months or a more severe penalty has been imposed.

…

(3) In this section “an offence punishable under the laws of the State” means –

(a) An Act that, if committed in the State on the day on which the request for extradition is made, would constitute an offence, or

(b) In the case of an offence under the law of a requesting country consisting of the commission of one or more acts including any act committed in the State (in this paragraph referred to as “the Act concerned”), such one or more acts, being acts that, if committed in the State on the day on which the act concerned was committed or alleged to have been committed would constitute an offence, and cognate words should be construed accordingly.”

17. It is clear from Article 4(1) of the Extradition Agreement between the European Union and the United States that an offence shall be extraditable if punishable under the laws of the requesting State and the requested State by deprivation of liberty for a maximum period of more than one year or by more severe penalty. An extraditable offence also consists of an attempt or conspiracy to commit or participation in the commission of an extraditable offence. This is reflected in Article II (3) of the Annex to S.I. No. 45 of 2010.

Correspondence

18. The test as to whether an offence specified in the warrant issued by a requesting State corresponds to an offence contrary to Irish law requires an examination of whether the acts constituting the offence alleged in the warrant constitute an offence under Irish law as set out in s.42 of the Extradition Act 1965 as amended by s.26 of the Extradition (European Union Conventions) Act 2001.
19. The issue was considered by the Supreme Court in Attorney General v. Dyer [2004] 1 I.R. 40. In that case an application was made for an order extraditing the respondent in respect of offences of obtaining money by false pretences as set out in a number of warrants. The offences relied upon by the applicant as corresponding offences under Irish law had to be committed “with intent to defraud”. In the absence of these words from the warrants the applicant relied on the evidence of an advocate from the requesting State (Jersey) as to the meaning of “criminal fraud” under Jersey law although the term did not appear on the face of the warrants. The High Court made an order for the respondent’s surrender. This was appealed on the basis inter alia that the High Court was not entitled to have regard to expert evidence for the purpose of determining the issue of correspondence and that “intent to defraud” was not an element of the offences charged. It was held by the Supreme Court, allowing the appeal, that the enquiry as to correspondence of an offence in the requesting State with an offence in the law of this State was concerned with the factual components of the offence specified in the warrant. In the absence of any suggestion that the words used in the warrants had a different meaning in the law of the requesting State, the issue of correspondence was to be examined by attributing to any such words the meaning they would have in Irish law. Having reviewed the various authorities Fennelly J. (delivering the judgment of the Court) stated:

“20. The result seems to me to be the following. Normally, words used in an extradition warrant will be given their ordinary meaning. This enables the courts to give effect, without resort to extrinsic evidence, to extradition requests where words such as “steal,” “rob” and “murder” are used. It is possible that such words have different meanings in the law of the requesting state, but, in the absence of anything suggesting that, the courts will examine correspondence by attributing to such words when used in a warrant, the meaning that they would have in Irish law. In some cases, however, the word used in the requesting jurisdiction may be unfamiliar to Irish law. … In my view, that simple proposition is a sufficient answer to the objection that the evidence of (an Expert in Jersey law) should not have been admitted to explain the term “contrary to common law”. The evidence was receivable to explain that “the common law” of Jersey, when used in a warrant for criminal fraud, encompasses the notion of “intent to defraud”.”

20. The learned judge applied what he described as the “now very consistent line” as maintained by Henchy J. in Hanlon v. Fleming [1981] I.R. 489 at p. 495 (O’Higgins CJ. and Griffin J. concurring):

“The third point raises the question whether the specified offence has the required correspondence with an offence under the law of this State. The relevant decisions of this Court, such as The State (Furlong) v. Kelly [1971] I.R. 132, Wyatt v. McLoughlin [1974] I.R. 378 and Wilson v. Sheehan [1979] I.R. 423 show that it is a question of looking at the factual components of the offence specified in the warrant, regardless of the name given to it, and seeing if those factual components, in their entirety or in their near-entirety, would constitute an offence which, if committed in this State, could be said to be a corresponding offence of the required gravity.”

21. This was in contrast to the approach adopted by Ó Dálaigh CJ. in The State (Furlong) v. Kelly [1971] 1 I.R. 132 in which the learned Chief Justice defined correspondence in terms of the specific and technical legal elements of the offences in issue. In that regard, Fennelly J. stated:

“16. Ó Dálaigh CJ. then contrasted the parallel provisions of Part II of the Act, particularly the following provision in s. 10(3):- “an offence punishable under the laws of the State shall be construed as including references to an act which, if it had been committed in the State, would constitute such an offence”. It is apparent therefore, that Ó Dálaigh CJ. conceived the inquiry into correspondence in terms of the legal elements of the offences created under the laws of the respective jurisdictions. Whatever force the reference to s. 10(3) of the Act of 1965 had at the time of the judgment in The State (Furlong) v. Kelly … it must be greatly diminished by the fact that since 2001 there is a statutory definition of correspondence by reference to “the act constituting the offence” specified in the warrant.”

Therefore, the consideration in this case as to whether correspondence exists requires an examination of the acts alleged rather than the narrow definitions of the offence of the laws of the respective States.

22. Fennelly J. also quoted with approval from the judgment of Henchy J. in Wilson v. Sheehan [1979] I.R. 423 at p. 428 as follows:

“What was being stressed in that passage was that the required correspondence of offences is not shown by the mere proof that the offence specified in the warrant has the same name as that of an offence in this State. It is the essential factual ingredients that determine whether two offences have the necessary correspondence. If an offence is specified in the warrant merely by the name by which it is known in the requesting State, it does not follow that because there is an offence in this State which goes by the same name, the two offences correspond with each other. They may be crucially different in essence. To show the necessary correspondence … it is necessary for the specification of the offence in the warrant (or in the warrant and its attendent documentation) to go further and identify the offence by reference to the factual components relied on; it is only by looking at those components that a Court in this State can decide whether the offence so specified (regardless of what name is attached to it) would constitute, if committed in this State, a corresponding criminal offence of the required gravity.”

23. It is submitted in this case that the charges contained in the warrant and the factual information concerning these offences in the supporting documentation are not clear and unambiguous and do not disclose essential factual ingredients that would identify them by reference to those components as offences which if committed in this State correspond to criminal offences.
24. The arrest warrant issued by the United States District Court on 12th May, 2013 commands the arrest of Gary Davis who is described as a person “accused of an offence or violation based on the indictment filed with the court briefly described as:

“Narcotics trafficking conspiracy (21 U.S.C. 846)

Computer hacking conspiracy (18 U.S.C. 1030)

Money laundering conspiracy (18 U.S.C. 1956)”

25. The indictment underpinning the three charges of conspiracy sets out the material, facts and background to the charges at paras. 1 to 6. Many of these facts are referenced in the earlier part of this judgment. It describes the conspiracy which extended from January 2011 to October 1st, 2013 centred on the operation of the underground website Silk Road which is said to have hosted “a sprawling black market bazaar on the internet, where illegal drugs and other listed goods and services were regularly bought and sold by the site users”. The site was used by several thousand drug dealers and other unlawful vendors to distribute hundreds of kilograms of illegal drugs and other illicit goods and services to well over a hundred thousand buyers and to launder hundreds of millions of dollars deriving from these unlawful transactions. The respondent is described as a site administrator responsible for activities such as monitoring user activity on Silk Road for problems, responding to customer service enquiries and resolving disputes between buyers and vendors. Mr. Davis’s involvement is alleged to have commenced on or about 6th June, 2013 and continued until October 2nd, 2013 as a site administrator known as “Libertas”.
26. The indictment sets out in detail the “statutory allegations” in respect of Count 1:

“7. From in or about January 2011 up to and including in or about October 2013 in the Southern district of New York and elsewhere … Gary Davis aka “Libertas” … the defendant and others known and unknown, intentionally and knowingly did combine, conspire, confederate and agree together and with each other to violate the narcotic laws of the United States.

8. It was a part and object of the conspiracy that … Gary Davis aka “Libertas” … the defendant and others known and unknown would and did distribute and possess with the intent to distribute controlled substances …
9. It was further a part and object of the conspiracy that … Gary Davis aka “Libertas” … the defendant and others known and unknown would and did deliver, distribute and dispense controlled substances by means of the internet, in a manner not authorised by law and did aid and abet such activity …
10. The control substances involved in the offences included amongst others 1kg and more of mixtures and substances containing detectable amounts of heroin, 5kgs and more of mixtures and substances containing a detectable amount of cocaine, 10gs and more of mixtures and substances containing a detectable amount of lysergic acid diethylamide (LSD) and 500gs and more of mixtures and substances containing a detectable amount of meta-amphetamine, its salts, isomers, and salts of its isomers …”
11. The indictment also recites that amongst the overt acts committed by Gary Davis in the course of this conspiracy was that on or about July 11th, 2013 he sent a message through the Silk Road website to Mr. Ulbricht with the subject “daily notes” summarising actions he had taken during the previous day in his capacity as a Silk Road site administrator. Extensive details are also provided in the affidavit of Mr. Turner at paras. 49 to 55 of the evidence which is proposed to adduce, the nature of which has already been described earlier in the judgment.
12. I am satisfied that the acts constituting the offence set out at Count No. 1 are clearly embraced by the terms of s. 15 of the Misuse of Drugs Act 1977 (as amended) which provides that any person who has in his possession whether lawfully or not, a controlled drug for the purpose of selling or otherwise supplying it to another in contravention of regulations under s. 5 of the Act shall be guilty of an offence. The drugs the subject matter of the extradition request are all controlled drugs pursuant to the schedule of the 1977 Act and LSD is scheduled as a controlled drug pursuant to Statutory Instrument No. 78 of 2004 (Misuse of Drugs Act, 1977 (Controlled Drugs) (Declaration No.4) Order, 2004).
13. I am also satisfied that no evidence has been advanced to support the proposition that there is a substantial difference between the law relating to conspiracy in Ireland and in the United States. In particular, I reject the submission that Mr. Turner’s affidavit indicates that a person may be guilty of conspiracy even though he did not participate before the date alleged or that if a person joined a conspiracy without full knowledge of the details of the unlawful agreement they would nevertheless be liable for and punishable for the activities of alleged co-conspirators committed at a time before they entered the conspiracy. The court has not been furnished with any affidavit of laws from an appropriate expert in American law in support of that proposition. There is no doubt that in this State evidence which is proven against one co-conspirator may be looked at as against all of them in the course of a trial to demonstrate the nature and purpose of the conspiracy. If a person joins a conspiracy after its initial formation he may be found equally guilty with the original conspirators: this is well established (R. v. Murphy [1837] 8 C&P. 297; Criminal Law (Charleton, Mc Dermott and Bolger paras 4.83-4.131). I am satisfied that the applicant has established the necessary correspondence between the conspiracy set out in Count 1 and that the warrant and the accompanying documentation adequately “identified the offence by reference to the factual components relied on”.
14. The respondent also submits that there is no correspondence between the offence specified in Count 2 on the indictment the subject of the warrant alleging conspiracy to commit computer hacking which carries a maximum penalty of five years imprisonment. The indictment sets out the acts alleged against the respondent in respect of Count 2 under the heading “Statutory Allegations” :-

“14. From in or about January 2011, up to and including in or about October 2013 in the Southern district of New York and elsewhere … Gary Davis aka “Libertas” the defendants and others known and unknown, intentionally and knowingly did combine, conspire, confederate and agree together and with each other to commit computer hacking in violation of Title 18, United States Code, section 1030(a)(2).

15. It was a part and objective of the conspiracy that … Gary Davis aka “Libertas” and … the defendants and others known and unknown would and did intentionally access computers without authorisation and thereby would and did obtain information from protected computers, for the purposes of commercial advantage and private financial gain, and in furtherance of criminal and tortious acts in violation of the Constitution and the laws of the United States, in violation of Title 18, United States Code, section 1030(a)(2).
16. It is alleged that Mr. Davis was also part of a conspiracy to provide a platform for the purchase and sale of malicious software designed for computer hacking such as password stealers, key loggers and remote access tools. It is alleged that while in operation the Silk Road website regularly offered hundreds of listings for such products.
17. In the affidavit of Serrin Turner further details inter alia are provided as follows:

“11. In addition to illegal narcotics, other illicit goods and services were openly sold on Silk Road as well. For example, as of September 23rd, 2013:

1. There were hundred and fifty-nine listings on the site under the category “services.” Most concerned computer hacking services: for example, one listing was by a vendor offering to hack into Facebook, Twitter, and other social networking accounts of the customer’s choosing, so that “you can Read, Write, Upload, Delete, View all Personal Info”; another listing offered tutorials on “twenty-two different methods” for hacking ATM machines. Other listings offered services that were likewise criminal in nature. For example, one listing was for a “Huge Black market Contact List”, described as a list of “connects” for “services” such as Anonymous Bank Accounts”, “Counterfeit Bills …”, “Firearms and Ammunition”, “Stolen Info (cc. Credit Card, PayPal)” and “Hit Men (ten plus countries).”
2. There were eight hundred and one listings under the category “digital goods” including offerings for pirate media content, hacked accounts at various online services such as Amazon and Netflix and more malicious software. For example, one listing entitled Huge Hacking Pack 150 plus hacking tools and programs” described the item being sold as a “hacking pack loaded with key loggers, RATs, Banking Trojans and other various malware”.
3. In this regard a “key logger” is described as a type of malicious software designed to monitor the key strokes input into an infected computer and transmit this data back to the hacker. A “RAT” or Remote Access Tool is a type of malicious software designed to allow a hacker to remotely access and control an infected computer. A “Banking Trojan” is a type of malicious software designed to steal an infected user’s bank account log-in credentials .This behaviour is clearly calculated to cause or facilitate loss and/or damage to others unlawfully and dishonestly and/or to enable the perpetrators to gain or profit from it.
4. As previously noted the Government prosecutors intend to adduce evidence that from in or about June to October 2013 the respondent served as a site administrator on Silk Road and as such knowingly worked with others to facilitate the distribution of this malicious software through the Silk Road website knowing that users of the website would use such software to commit computer hacking.
5. Section 9 of the Criminal Justice (Theft and Fraud) Offences Act 2001 provides:

“9(1) A person who dishonestly, whether within or outside the State, operates or causes to be operated a computer within the State with the intention of making a gain for himself or herself or another, or of causing loss to another, is guilty of an offence.”

Under section 5 of the Criminal Damage Act, 1991 it is an offence to operate a computer within the State to access data kept within or outside the State, or from outside the State to access data within the State, whether or not any data is actually accessed by that person. The offence may be committed whether or not the accused intended to access any particular data or category of data kept by any particular person.

36. The court is satisfied that a conspiracy to commit either or both of these offences provides sufficient correspondence with that alleged in Count 2. There is little doubt that the facts alleged against the respondent in respect of Count No. 2 set out above in the warrant, the indictment and the affidavit of Mr. Turner rely upon substantially the same factual ingredients which, if established beyond reasonable doubt in this jurisdiction, would constitute either of the proposed corresponding criminal offences.
37. Count 3 alleges a conspiracy to commit money laundering and carries a maximum penalty on conviction of twenty years imprisonment. The indictment grounding the charge sets out in detail the factual allegations made against the respondent:-

“18. From in or about January 2011 up to and including in or about October 2013 in the Southern District of New York and elsewhere … Gary Davis aka “Libertas” … the defendants and others known and unknown intentionally and knowingly did combine, conspire, confederate and agree together and with each other to commit money laundering …

19. It was a part and an object of the conspiracy that … Gary Davis aka “Libertas” … the defendants, and others known and unknown, in offences involving and affecting inter State and foreign commerce, knowing that the property involved in certain financial transactions represented the proceeds of some form of unlawful activity, would and did conduct and attempt to conduct such financial transactions, which in fact involved the proceeds of specified unlawful activity, to wit, narcotics trafficking and computer hacking, in violation of Title 21 United States Code, section 841 and Title 18 United States Code, section 1030 respectively with the intent to promote the carrying on of such specified unlawful activity, in violation of Title 18 United States Code, section 1956(a)(1)(A)(i).
20. It was further a part and an object of the conspiracy that … Gary Davis aka “Libertas” and … the defendants and others known and unknown, in offences involving and affecting inter State and foreign commerce, knowing that the property involved in certain financial transactions represented proceeds of some form of unlawful activity would and did conduct and attempt to conduct such financial transactions, which in fact involved the proceeds of specified unlawful activity, to wit, narcotics trafficking and computer hacking in violation of Title 21 United States Code, section 841 and Title 18 United States Code, section 1030, respectively, knowing that the transactions were designed in whole and in part to conceal and disguise the nature, the location, the source, the ownership and the control of the proceeds of specified unlawful activity, in violation of Title 18, United States Code, section 1956(a)(1)(B)(i).
21. These activities clearly correspond with the offence of money laundering as provided by s. 7 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 which provides:

“7(1) A person commits an offence if —

(a) the person engages in any of the following acts in relation to property that is the proceeds of criminal conduct:

(i) concealing or disguising the true nature, source, location, disposition, movement or ownership of the property, or any rights relating to the property;

(ii) converting, transferring, handling, acquiring, possessing or using the property; …

and

(b) the person knows or believes (or is reckless as to whether or not) the property is the proceeds of criminal conduct.”

39. I am satisfied having regard to the ingredients and substance of the offences alleged and described in the materials submitted in and with the warrant and the definition of the common law offence of conspiracy in Ireland that correspondence has been established in respect of Count 3. The court, in reaching this conclusion has had particular regard to the facts set out extensively and in detail in the indictment on foot of which the warrant was issued and the accompanying documentation including the affidavit of Mr. Turner.
40. The court is therefore satisfied that correspondence has been established in respect of all three counts.

Duplicity

41. It is submitted that the charges on foot of which extradition are sought are bad for duplicity. The respondent submits that each charge alleges more than one offence.
42. It is submitted that Count No. 1 contains a number of offences: in the course of submissions this was reduced to two. Since Count No. 1 charges only “conspiracy to distribute narcotics” on the face of the warrant and makes no mention of any other alleged fact, it is said that one must turn for clarification to the supporting documentation. This includes the affidavit of Mr. Turner and the indictment. It is submitted that on the basis of Mr. Turner’s affidavit the narcotics conspiracy set out in Count 1 had two objects. Firstly, its object was to distribute or possess with the intent to distribute controlled substances in violation of 21 USC Sections 841(a)(1) and 846. Secondly, it is said that the object of the conspiracy was to deliver, distribute or dispense controlled substances by means of the internet in a manner not authorised by law or to aid and abet such activity in violation of 21 USC Sections 841(h) and 846. It is submitted that it does not simply describe the commission of one offence by a number of different means but in fact alleges different activities namely, on the one hand to distribute or on the other to possess with intent to distribute controlled substances and to distribute or dispense by means of the internet. The court is not satisfied that the count embodies an allegation that the accused committed two offences. It clearly charges a conspiracy to distribute narcotics in which the respondent is alleged to have participated in a number of particularised ways over a specific period.
43. In respect of Count 2 it is alleged that the conspiracy between the respondent and others would and did intentionally access computers without authorisation, and thereby obtain information from protected computers for the purpose of commercial advantage and private financial gain in furtherance of criminal and tortious acts in violation of the Constitution and the laws of the United States. The Silk Road website allegedly provided a platform for the purchase and sale of malicious software designed for computer hacking such as password stealers, key loggers and remote access tools. It offered hundreds of listings for such products. I am not satisfied that the allegations of conspiracy in Count 2 which are directed towards computer hacking could be regarded in any way as bad for duplicity having regard to the extensive detail set out in the affidavit of Mr. Turner, and the indictment handed down by the Grand Jury.
44. It is also submitted that Count 3 is bad for duplicity. Reliance is placed upon The People (DPP) v. Meehan [2002] 3 I.R. 139 in which the Court of Criminal Appeal quashed a conviction for money laundering charged under s. 31(3) of the Criminal Justice Act 1994 which provided:

“A person shall be guilty of an offence if he handles any property knowing or believing that such property is, or in whole or in part directly or indirectly represents, another person’s proceeds of drug trafficking or other criminal activity.”

45. The Court of Criminal Appeal held that the section contained two alternative and distinct offences relating to drug trafficking or other criminal activity and that a conviction based on a count containing the two alternatives was uncertain and unworkable. It noted that the question as to where the line should be drawn between a single offence committed in two different ways as against the creation of two different offences often falls to be considered on a case to case basis. The court found that two different offences had been created. They were not merely a description of the commission of one offence in two different ways. In this case it is also alleged that the American charge is bad for duplicity in that it alleges not the commission of the same offence in a number of different ways but the commission of different offences.
46. In Regina v. The Government of the United States (ex parte McKee) (unreported Queen’s Bench Division 28th April, 1999) the applicant was alleged to have been involved in the distribution of LSD in California and his extradition was sought on a number of charges alleging conspiracy to supply LSD during different periods in the United States. In respect of the four conspiracy charges it was submitted that one charge of conspiracy would have been sufficient and the others should be regarded as bad for duplicity since they covered essentially the same facts. Kennedy LJ. delivering the judgment of the court stated:

“The simple answer to that is that it is plainly open to the prosecution, in a case such as this, to allege one overriding conspiracy covering the whole of the period under consideration and as an alternative to allege smaller conspiracies relating to the dates when drugs were supplied as though each transaction was self contained. That, on the face of it was precisely what was done in this case. There is nothing, in my judgment wrong about that” (at page 5).

47. In Mateusz Koziel v. District Court in Kielce, Poland [2011] EWHC 3781 (Admin) the English Court of Appeal considered the proposed rendition of a Polish national on foot of a warrant for the offence of robbery. A point was taken that because the warrant referred to two provisions of the Polish Penal Code, the European Arrest Warrant was invalid because it did not specify the sentence in respect of each of those two provisions of the Penal Code. Sir John Thomas P. in delivering the judgment of the court noted that a reading of the warrant indicated that it concerned one offence for which there was a maximum custodial sentence. The warrant then set out two sections of the Polish Penal Code. The court considered that the warrant was entirely clear. It concerned one offence the maximum sentence for which was twelve years but that under Polish law the offence derived from two sections of the Penal Code. The learned president noted that “it would be contrary to principle to look at the matters through the eyes of a common lawyer by bringing into play questions of duplicity.” He continued:

“It might well be the case that in this jurisdiction it would not be permissible to charge one offence arising out of two different provisions of a code, but I do not see how it is possible for a court in the UK to conclude that Polish law is the same. The warrant is clear. There is one offence, one maximum sentence. It would seem on the face of the warrant that this offence derives from two sections of the code. Thus looking at the warrant on its own I am not going outside it, there is no breach of the provisions of section 2 of the Act.”