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.)

Flickr/Nic Gould
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Why haven't we heard more about the allegations of Tory election fraud?

Police and prosecutors have joined a probe into election fraud allegations that could erase the Tory majority.

The facts

The Conservative Party is facing accusations of breaking election spending rules during its 2015 campaign. Following a Channel 4 investigation, it has admitted to failing to declare more than £38,000 of expenses, money it says was spent on accommodation for Tory activists.

It’s up to the Electoral Commission, which met this week with prosecutors and police forces, to decide whether or not to launch criminal investigations into this spending.

Allegations that the money benefited campaigns in individual seats have put the Tories in hot water – they may have illegally exceeded the constituency-specific spending limit. Making a false spending declaration in an election carries a punishment of up to a year in prison and/or an unlimited fine, and anyone found guilty is also barred from running in a general election or holding any elected office for three years.

But the party claims that, as the money was spent on “BattleBus” activists who were driving around the country, it counts as national spending from HQ, rather than being part of individual candidates’ spending.

The Electoral Commission, Crown Prosecution Service and representatives of 15 police forces met this week to discuss the claims. This has resulted in extra time being allowed (an extension on the 12 months allowed under the Representation of the People Act) for relevant police forces to decide what action to take.

Up to 29 Conservative candidates are thought to have benefitted from “BattleBus” campaigning, many of whom were fighting marginal seats.

As Channel 4’s Michael Crick reported yesterday:

“It will be interesting to see if they actually start naming constituencies where they think offences may have occurred. That would then put elected MPs, Conservative MPs, in the frame.

“And indeed, if they were to look at all the constituencies that we’ve been making allegations about over the last few months, it could actually endanger the government’s majority in the House of Commons.”

The conspiracy claims

So why haven’t we heard about this? It undermines the credibility of the entire Tory general election campaign. The claims could even constitute a scandal that would trigger by-elections across the country and potentially erase the Tory majority. The Tories have a working majority of 18, so if they lost in 18 by-elections (were at least 18 MPs to be found guilty), then they would lose their majority.

Some, particularly online leftwing voices, have accused the media of conspiring not to cover this story. Our rightwing press and the cowardly BBC, they argue, are ignoring a story that could potentially call the Conservative general election victory into question.

Anger about this story being low on the political agenda is understandable. It hasn’t been prominent, considering it could result in prosecutions (indeed, the Devon and Cornwall police force is reportedly already investigating, following its meeting with the Electoral Commission). And if, say, The Sun were a left-leaning paper, it probably would have framed it in a dramatic way that would have grabbed readers’ attention.

But there isn’t a media conspiracy of silence. BBC News has been covering developments since the beginning of the year, including similar claims about 2014 by-elections, and Grant Shapps MP (Conservative chairman during the election) was hauled onto the BBC Daily Politics sofa to respond to the allegations. And the BBC’s Today programme put the allegations to Communities & Local Government Secretary Greg Clark this morning. Channel 4 News has been investigating the story, and breaking developments, from the start. The Mirror has done a big investigation into each of the MPs’ campaigns that have been accused. And all of the main papers have published news reports on the story.

The reason it may seem like silence, or lack of due prominence, is because this is an ongoing investigation. So far there have been no arrests, and the allegations remain just that: allegations. Care is required by media organisations not to falsely accuse anyone of criminal activity. And, pushed by journalists, the Conservatives have given their side of the story, so we’re not going to get a great deal more from them. Now it’s up to police forces to decide to take action.

So far, the only things to report on have been what would and would not count as a breach of electoral law (rather a dry subject), and whether or not the Electoral Commission would achieve an extension on the time allowed by law for investigating (also somewhat technical). And, however dull, these things have been reported. They may not have been shared a huge amount online, or bounced to the top of “most-read” boxes – but this is because readers aren’t usually that interested in the ins and outs of the Representation of the People Act, no matter how much those who want this government toppled wish they were.

Anoosh Chakelian is deputy web editor at the New Statesman.