Why did it take ten years to block the extradition of Gary McKinnon?

What you believe about the McKinnon extradition case is probably false

The Home Secretary has decided that the extradition of Gary McKinnon will not go ahead. 

Relying on the same human rights law which she has strongly criticised in the past in respect of other extradition cases, the Home Secretary has ruled that the suicide risk is such that it would be contrary to McKinnon's human rights for the extradition to proceed. 

If that is what the evidence is before the Home Secretary in respect of a suicide risk, then it was plainly the right decision for her to make, though it opens obvious questions as to whether it can be now a precedent for other extradition cases.

However, it appears that, but for this determination, the extradition would have proceeded - put another way, the legal case for McKinnon's extradition was otherwise sound.

 

But how can we best understand how the McKinnon case has taken so long to get to this stage? 

The alleged offences took place in 2001 and 2002, and based on mainstream media accounts, it just seemed such a clear injustice being inflicted on a sympathetic defendant.  

The answer, in part, is that there has long been a mismatch between the mainstream media accounts of the McKinnon case and the underlying legal facts. 

On one hand, there was an admirable, tireless, and spiritied campaign on McKinnon's behalf.  Unfortunately, one consequence of this campaign is that there were many contentions about the case which "everyone knew" even if few ever seemed to check if they were true.

On the other hand, there have been a series of legal judgments which provided a very different perspective on the case. In 2010, in a sequence of blogposts at Jack of Kent, I set out the correct legal position.  This is not to say I believed McKinnon should have been extradited; it was just to balance the media narrative on the case with a more source-based approach.  This was important as, without understanding there was a mismatch between the mainstream media version of the case with the legal realities, one could not understand why the extradition had gone on so long.

 

My survey at Jack of Kent set out a number of points which did not feature in mainstream media accounts of the case.

First, the contention that all McKinnon was doing was looking for evidence extraterrestrial life had no basis in the legal case.  UFOs played no part in the litigation whatsoever.  The UFO explanation was never provided by McKinnon or his legal team in the court cases.  In fact, McKinnon's original case was that his motives were political and he contended that political opinions should be taken so seriously that he should not be allowed to be extradited on those grounds alone.

Then there was the assertion that his offences were trivial and more the fault of lax US security.  Again, this is not supported by the legal documents.  Instead, the alleged offences are serious and were sustained over a lengthy period.  The allegations are in respect of a hacking exercise which took place over fourteen months and involving 96 computers in five US government departments, and which came to an end (it seems) only with his detection and arrest.  The CPS also provided detailed reasons as to why they would not prosecute McKinnon in the UK - and this was not a supririse, as both the unauthorised access and the alleged damage occured entirely in the US.

Moreover, the allegations against McKinnon also went beyond unauthorised access to substantial file deletion and copying.  The US alleged that there was significant operational damage and that they could evidence the damage.

It was also usually overlooked that the unauthorised access (ie the offence) had been actually admitted by McKinnon's legal team (so it was likely to be no issue to be tried).  His legal team even indicated that he may also admit the damage as well as the unauthorised access.

Accordingly, the US could thereby show a prima facie case.  Therefore the disparities in respect of the UK/US extradition arrangements were not actually relevant in this case -  the notorious "one-sided" extradition treaty was a red herring here, even if it was relevant in other cases.

And given the human dimension in all this, and perhaps most importantly of all, the US even provided detailed assurances as to how McKinnon's condition of Asperger's Syndrome would have been accommodated should he be extradited. 

It should also be noted that McKinnon  rejected a highly advantageous plea bargain in 2003 (and so would have been free of all this by around 2006, rather than still waiting as late as 2012). 

Finally, the US also stated that there was no principled opposition to McKinnon applying to serve his sentence in the UK.

 

The McKinnon legal case was never how the mainstram media presented the case; and so it was always difficult for anyone following to comprehend why the extradition went on for so long.

But, unless the DPP decides to now prosecute McKinnon in England, none of the above legal analysis matters any more. 

It would appear the "Free Gary" campaign has succeeded in keeping the case going in England until they could get the official decision they sought. This is an incredible achievement.  The fact that the legal realities of the case were often ignored along the way by the mainstream media is now perhaps only of academic importance.

 

 

(Supporting analysis and links to all the above is at my blog at Jack of Kent.)

Gary McKinnon. Photograph: Getty Images

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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When is the Budget 2017?

Chancellor Philip Hammond will present the last ever springtime Budget to Parliament on March 8th. He has a tricky hand to play.

Fans of the Chancellor’s red box photocall outside 11 Downing Street are in for a treat this year - the abolition of the Autumn Statement means Philip Hammond will present not one but two Budgets to the Commons.

The first – the last ever Spring budget – will be published on Wednesday 8 March 2017. A second – the first Autumn Budget – will come later in the year. This will be followed by a new Spring Statement, which will respond to forecasts from the Office for Budget Responsibility but will no longer introduce new tax and spend changes. 

But what is likely to happen this time around? The Institute for Fiscal Studies set out a grim outlook for the chancellor in its "Green Budget" earlier this month. This year’s deficit will be higher than in 47 of the 60 years before the crash of 2008, the national debt is at its highest level since 1966, and the chancellor is still committed to the diet of austerity prescribed by his predecessor, George Osborne. With day-to-day spending on public services set for a real-term fall of 4 per cent between now and 2020 and those same public services already in a parlous state, Hammond has a difficult hand to play. 

However, Theresa May’s government has proved adept at U-turning when it needs to – think the Brexit White Paper and Amber Rudd’s lists of foreign workers. Here's what to look out for:

Changes to business rates

MPs of all stripes have been pressuring the government to rethink its plans on business rates, which will see new rates based on updated property valuations introduced for the new financial year. 

Initially, the government maintained that three-quarters of businesses won’t see any changes to their rates at all. But the fact that rates for pubs, shops, GP surgeries hospitals could be set to more than double riled Tory backbenchers, several ministers, the CBI and right-wing papers including the Sun and Daily Mail

We will likely see a concession from the Treasury on controversial changes, which were slated to kick in from April. Communities and Local Government secretary Sajid Javid told the Commons that a solution would be in place by Budget Day. 

Reassurances for social care

Britain’s crisis-stricken social care system – and the vexed question of how we’re going to pay for our ageing population – also looms large. In the aftermath of the controversy around the government’s supposed “sweetheart deal” with Surrey County Council, local authorities and charities have been lobbying Number 10 for a new settlement – or at least some extra cash to ease the pain. 

Indeed, the Health Service Journal has revealed the Care Quality Commission is to be handed regulatory oversight for how councils manage their social care services, and a number MPs are increasingly convinced that the government could be set to unveil a modest increase in funding. Any such package would only be a sticking plaster.