United States of America v Dempsey

For the common-law offence of perverting the course of public justice, a lie told to an investigator is capable of constituting the actus reus where it has, and is intended to have, a tendency to obstruct or divert a criminal investigation. It is unnecessary to prove that the defendant knew the precise investigation or proceedings being pursued. Knowledge that the questioning formed part of an official criminal investigation may suffice, together with an intention to obstruct or divert the course of public justice generally. The offence may have extra-territorial application where the conduct abroad perverts the course of justice in England.

The United States sought the extradition of Brian Dempsey on an indictment alleging that he knowingly made false statements to an FBI agent concerning travel to Syria and involvement with an armed group. The District Judge rejected arguments based on political motivation and abuse of process, but discharged the Respondent on the ground that the conduct was not an extradition offence and lacked the necessary extra-territorial connection.

The United States appealed. The Respondent sought permission to cross-appeal on political motivation and abuse of process. The central issues were whether the alleged lies could amount to perverting the course of public justice, whether the required intention depended on knowledge of a particular investigation, and whether English criminal jurisdiction could apply to conduct occurring abroad.

1. Cross-appeal. Permission to appeal against the findings on political motivation and abuse of process was refused. Section 81 of the Extradition Act 2003 required evidence that the prosecution was motivated by the Respondent’s political opinions. There was none. Abuse of process in extradition required bad faith by the requesting state in the extradition proceedings or deliberate manipulation of the statutory process. Alleged breaches of the requesting state’s internal procedures were matters for the trial court in that state.
2. Actus reus. The essential ingredients of perverting the course of public justice remained those identified in [1891] 1 QB 360: an act having a tendency to pervert the administration of public justice, intended to do so. A lie told to a police officer or investigator could satisfy that requirement, although lying alone would not invariably do so. The relevant conduct was not confined to lies which diverted investigators. Conduct obstructing an investigation could also suffice. The Respondent’s statements were capable of putting the FBI on the wrong track by prompting fruitless inquiries.
3. Mens rea. It was unnecessary to prove that the defendant knew the precise criminal investigation or its exact scope. It was sufficient that he intended generally to obstruct or divert those involved in investigating criminal offences. The evidence supported an inference that the Respondent knew the FBI agent was acting officially and that the interview formed part of an investigation. The requirements of the English offence were more stringent than those of the United States offence.
4. Extra-territoriality. Applying the principles in [1991] 1 A.C. 225, conduct abroad could be prosecuted in England where its harmful effect was to pervert the course of justice in England. The location of the investigating officer did not prevent the existence of an English course of justice.
5. The appeal was allowed. The discharge was quashed and the case remitted to the District Judge to proceed on the basis of the Court’s conclusions.

1. High Court (Administrative Court): The appeal from the District Judge was allowed. The discharge was quashed and the case was remitted.
2. Westminster Magistrates’ Court: The District Judge rejected the political-motivation and abuse-of-process arguments but discharged the Respondent after finding that the alleged conduct was not an extradition offence.