Dotcom Wins Battles, But War Is Not Won

I don't know if Kim Dotcom has a PR adviser, or if's he's just making it up himself as he goes along. Because whatever he's doing is brilliant.

Forget the the tightly-scripted media interview complete with tears, or the full Woman's Weekly spread. Kim Dotcom's approach is more hands-on. He may be a squillionaire (even if most of his assets have been seized), but the image he presents is one of a guy who just wants to have some fun.

Inviting a tech-savvy and connected internet geek to have a swim with him over the weekend was a stroke of genius. This move guaranteed that the event would go viral over social media and would then hit the mainstream media.

Now he's on a charm offensive, turning up last night to the filming of the last ever episode of Media 7, and tonight he's the guest speaker at a public meeting in Coatesville.

To top things off for Dotcom, he's had another win in the courts, with a High Court judge today ruling that the warrants obtained for the raid on Dotcom's house were invalid.

I don't know much about Dotcom, other than what I see or read in the media. It's safe to say, though, that's he's not your average multi-millionaire. The enormous mansion, the fast cars, the crazy antics, are all part of a larger-than-life persona. It's a picture that clashes with the one the US government wants us to believe. In the eyes of the United States government, Dotcom is little better than a Bond super-villain, being the brain behind a vast criminal conspiracy that involves racketeering, copyright infringement and money laundering.

However, the battle over Dotcom's future (a New Zealand mansion or a US jail) won't be determined by the number of Twitter followers he can amass. He will be pleased, then, that he seems to be winning most of the legal battles to date.

Today's ruling by Justice Winkelmann found that the warrants obtained by police in their farcical raid on the Dotcom mansion were illegal, because they did not adequately describe the nature of the offences to which they were related.

Justice Winkelmann also ruled that because the warrants were expressed to capture a broad range of materials, some of which would inevitably be irrelevant to the investigation, the warrants were invalid.

The judge went on to suggest that the police ought to have sought conditions in relation to the warrants, setting out how the evidence could be dealt with. Presumably such conditions would have assisted police and FBI agents, ensuring they knew exactly what the scope of their authority was.

Justice Winkelmann also ruled that the release of cloned hard drives by police to the FBI was in breach of the Solicitor-General's direction under section 49(2) of the Mutual Assistance in Criminal Matters Act 1982. That direction stated that items seized were to remain with the Commissioner of Police until further direction. The lawyers for the Crown tried to argue that Dotcom and his fellow plaintiffs consented to the release to the FBI of the material, but the judge did not accept this argument.

The judge ruled that the Crown must seek the return of the cloned material from the FBI, and must appoint an independent lawyer to determine which evidence is relevant and which is irrelevant. Relevant material will then be provided to the US authorities.

The judge declined to rule on the admissibility of any evidence in proceedings. Those matters will be heard next week.

But by obtaining an order that evidence was obtained by unlawful means, the plaintiffs have given themselves a fighting chance of having some or all of the evidence secured via the warrants ruled inadmissible. On the other hand, the Crown will argue that any technical irregularities in the warrants were not fatal, and that while the process was flawed the evidence itself is able to be used by police. It might turn out that this victory by Dotcom, while embarrassing to police, means very little.

The onus is on the police to get their warrants right, but in reading through the judge's reasoning, particularly in relation to the judgements officers are expected to make at the scene in determining whether something is relevant or not, it is difficult not to have some sympathy for the role of the humble police officer who has to make an on-the-spot call.

On the other hand, the words of Lord Camden in Entinck v Carrington [1765] EWHC KB J98 still ring loud in the ears of our judiciary:

The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. The cases where this right of property is set aside by private law, are various. Distresses, executions, forfeitures, taxes etc are all of this description; wherein every man by common consent gives up that right, for the sake of justice and the general good. By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him. The justification is submitted to the judges, who are to look into the books; and if such a justification can be maintained by the text of the statute law, or by the principles of common law. If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment.

Judges will always construe the rights of police and law enforcement agencies very narrowly. The judgment in this case appears on the face of it to be consistent with that line of reasoning, even if to some it will appear as if the errors in the warrants were "mere technicalities".

Whatever happens at the hearing next week, we should expect the losing party to appeal.