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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The idea that sitting all day behind a desk increases your output is a fantasy

If you don’t trust people, at least make sure that you imprison them, seems to be the idea.

Scruffy and tieless, I was the odd one out. Taking a break from research in the London Library, I settled at the bar of an Italian restaurant and resumed reading Tony Collins’s excellent book Sport in Capitalist Society. While the hedge-fund managers looked askance, the young Hungarian waiter recognised one of his own. “That was the subject of my PhD,” he explained, before giving me a sparkling history of sport and Hungarian society.

He now juggles waiting tables with writing articles. It’s not easy. He tells me that when he rereads his old academic work, “Sometimes I need a dictionary!” Like many other people in today’s economy, he balances different jobs, the remuneration and fulfilment varying significantly.

As you have probably noticed, it seems that almost everyone is employed but hardly anyone has a job. Of the 42 million people of working age in Britain, 23 million are in a full-time job; roughly 14 million are full-time parents or carers; most of the rest work part-time, or are self-employed, or work for a business that is so small that it is, in effect, a form of self-employment. The “job” – the salary, the subsidised canteen, the pension – is on the wrong side of history. That is both liberating and scary.

There are two separate points here. The first, deriving from the privilege of choice, is that some people (I am one of them) are happier with the variety and freedom of self-employment. The second is that many people do not have a choice: solid, dependable jobs are a dead concept. We had better get used to fending for ourselves, because we are going to have to.

The phrase “portfolio career” was popularised by the management thinker Charles Handy. “I told my children that they would be well advised to look for customers, not bosses,” as Handy put it. “The important difference is that the price tag now goes on people’s produce, not their time.”

This transition from time-serving to genuine contribution can be good news for workers and employers alike. The art of being an employee is to string things out while pretending to be busy. The art of being self-employed is the opposite: getting things done well and efficiently, while being open to taking on new work. Employees gain an incentive to look effortful, the self-employed to look effortless.

The idea that sitting constantly behind a desk increases output, which underpins the old concept of a job, is a fantasy derived from control: if you don’t trust people, at least make sure that you imprison them. As an unfortunate consequence, the projection of phoney “busyness” consumes more energy than actual work and brings a kind of compound stress: always bustling around, never moving forward. “Never walk past the editor’s office without carrying a piece of paper,” young journalists are advised.

When I turned pro as a cricketer, an old hand told me that if I ever felt lost at practice, I should untie my shoelaces and then do them up again. “We don’t measure success by results but by activity,” as Sir Humphrey quips in Yes Minister. Ironically, I had never realised that my career as a sportsman – apparently playful and unserious – would prove to be the outlier for opposite reasons. Where most careers have drifted towards freelance portfolios, professional sport has tightened the leash. When you have to eat, sleep and train according to strict rules, your job is at one extreme end of the control-of-freedom spectrum. Yet even in elite sport there is more room for semi-professionalism than the system usually allows, especially in games – such as cricket – where physical fitness is necessary but not sufficient.

Yet the reality of the portfolio career inevitably brings new problems that are bound up with wider forces. A life that is spent moving from one institution to another – from school, to university, to a lifelong job – is becoming exotic, rather than the norm. For most of us, there will be no retirement party, no carriage clock. It is not just finding income that is being devolved downwards; so, too, is the search for meaning, purpose and identity. We live in what Handy calls a “de-institutionalised society”.

There are civilising aspects to the trend. First, the new employment landscape reduces the likelihood of people wasting their lives in the wrong job just because it is safe. Handy cites data suggesting that 80 per cent of employees feel dissatisfied in corporate jobs while 80 per cent are happy leading freelance lives. Nor does the old lie – that of backloading happiness, with corporate sacrifice giving way to happy retirement – stack up. We are better off balancing duties and pleasures all the way through.

Second, the decline of the job-for-life may gradually undermine the assumption that everyone’s wealth and prospects (let alone their value) can be determined by a couple of questions about an employer’s address. Social assumptions based on (apparent) occupation are increasingly ridiculous. Guess who the scholar is in the Italian restaurant: the waiter. It’s a good lesson. Your Uber driver could be a landscape architect, funding his professional passion with part-time top-ups.

The language of employment (“Where do you work?”) has been slow to catch up with this reality. When asked, “What do you do?” a freelancer can give a full and interesting answer, only to prompt the follow-up question, “So, what do you do, then?” If conversation becomes less like a mortgage questionnaire, that can only be a good thing.

Hugo Rifkind, writing recently in the Times, admired the Scandinavian-inspired decoupling of taste from wealth. “It is a ­better world . . . where you are not judged on the lineage of your sideboard.” I am more radical. It is a better world when you are not judged on your job.

Better or not – and like it or not – we will have to get used to it. 

Ed Smith is a journalist and author, most recently of Luck. He is a former professional cricketer and played for both Middlesex and England.

This article first appeared in the 05 February 2015 issue of the New Statesman, Putin's war