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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Theresa May gambles that the EU will blink first

In her Brexit speech, the Prime Minister raised the stakes by declaring that "no deal for Britain is better than a bad deal for Britain". 

It was at Lancaster House in 1988 that Margaret Thatcher delivered a speech heralding British membership of the single market. Twenty eight years later, at the same venue, Theresa May confirmed the UK’s retreat.

As had been clear ever since her Brexit speech in October, May recognises that her primary objective of controlling immigration is incompatible with continued membership. Inside the single market, she noted, the UK would still have to accept free movement and the rulings of the European Court of Justice (ECJ). “It would to all intents and purposes mean not leaving the EU at all,” May surmised.

The Prime Minister also confirmed, as anticipated, that the UK would no longer remain a full member of the Customs Union. “We want to get out into the wider world, to trade and do business all around the globe,” May declared.

But she also recognises that a substantial proportion of this will continue to be with Europe (the destination for half of current UK exports). Her ambition, she declared, was “a new, comprehensive, bold and ambitious Free Trade Agreement”. May added that she wanted either “a completely new customs agreement” or associate membership of the Customs Union.

Though the Prime Minister has long ruled out free movement and the acceptance of ECJ jurisdiction, she has not pledged to end budget contributions. But in her speech she diminished this potential concession, warning that the days when the UK provided “vast” amounts were over.

Having signalled what she wanted to take from the EU, what did May have to give? She struck a notably more conciliatory tone, emphasising that it was “overwhelmingly and compellingly in Britain’s national interest that the EU should succeed”. The day after Donald Trump gleefully predicted the institution’s demise, her words were in marked contrast to those of the president-elect.

In an age of Isis and Russian revanchism, May also emphasised the UK’s “unique intelligence capabilities” which would help to keep “people in Europe safe from terrorism”. She added: “At a time when there is growing concern about European security, Britain’s servicemen and women, based in European countries including Estonia, Poland and Romania, will continue to do their duty. We are leaving the European Union, but we are not leaving Europe.”

The EU’s defining political objective is to ensure that others do not follow the UK out of the club. The rise of nationalists such as Marine Le Pen, Alternative für Deutschland and the Dutch Partij voor de Vrijheid (Party for Freedom) has made Europe less, rather than more, amenable to British demands. In this hazardous climate, the UK cannot be seen to enjoy a cost-free Brexit.

May’s wager is that the price will not be excessive. She warned that a “punitive deal that punishes Britain” would be “an act of calamitous self-harm”. But as Greece can testify, economic self-interest does not always trump politics.

Unlike David Cameron, however, who merely stated that he “ruled nothing out” during his EU renegotiation, May signalled that she was prepared to walk away. “No deal for Britain is better than a bad deal for Britain,” she declared. Such an outcome would prove economically calamitous for the UK, forcing it to accept punitively high tariffs. But in this face-off, May’s gamble is that Brussels will blink first.

George Eaton is political editor of the New Statesman.