788 - Gary McKinnon - Home Office Reply

I posted about Gary Mckinnon late in July. I also contacted the Home Office, and earlier this month received a very long and considered reply to my email. See what you make of it (I need to reflect on it before I comment):

Mr Steve Lancaster

Reference: T14011/9

27 August 2009

Dear Mr Lancaster,

Thank you for your e-mail of 31 July about a request from the USA for the extradition of Gary McKinnon.

It may be worth setting out first a brief summary of Mr McKinnon’s alleged offences. He stands accused in the United States of computer offences allegedly committed between February 2001 and March 2002. These involve the unauthorised access from his home computer in London - or “hacking” into some 97 US Army, Navy and NASA computers concerned with national defence, security and naval munitions supplies. Mr McKinnon is alleged to have deleted data, including vital operating system files – causing, amongst other things, the shutting down of the US Military District of Washington’s entire network of over 2000 computers and the rendering inoperable of certain computer systems at a critical period following 11 September 2001. The USA alleges that the conduct was both calculated and intentional; and it states the cost of necessary systems repairs as being $700,000. During interviews under caution, Mr McKinnon admitted responsibility for certain of his alleged actions (although not that he had actually caused damage). He stated that his targets were high level US Army, Navy and Air Force computers and that his ultimate goal was to gain access to the US military classified information network. He also admitted leaving a note on one army computer reading:
“US foreign policy is akin to government-sponsored terrorism these days . . . It was not a mistake that there was a huge security stand down on September 11 last year . . . I am SOLO. I will continue to disrupt at the highest levels . . .”
The case has been, of course, the subject of much Parliamentary, press and public interest. Many have formed a sincerely held view that Mr McKinnon should not be extradited. We take careful heed, of course, of all the points which have been urged on his behalf. But it is also necessary to make a number of other points both about the case and more generally. First, that in the scheme of the 2003 Extradition Act, the Home Secretary has an important but limited decision-making role. Indeed, the ‘Act’ provides – and the courts have affirmed - that he must order extradition unless one of four conditions is met. (None of those conditions, I should say, arose when we first considered Mr McKinnon’s case in July 2006). Second, that the United Kingdom has important international obligations towards its many extradition partners. It takes those obligations seriously and, within what the law permits, regards it as its duty to render maximum assistance. We expect no less in return from the UK’s extradition partners. It is a very rare event for a UK request to the USA to be turned down and never at all in over five years. Third, that the US request for Mr McKinnon’s extradition had already been the subject of very rigorous judicial scrutiny before, last August, there was a supervening diagnosis of Asperger’s Syndrome – a matter currently before the courts.

Judicial scrutiny of the case to date can be summarised as follows. Mr McKinnon was arrested here for extradition purposes in June 2005. There followed a hearing at City of Westminster Magistrates’ Court where, in an attempt to defeat the US request for his extradition, Mr McKinnon and those acting for him sought to raise certain statutory barriers to surrender. (Those are all set out in the Extradition Act 2003). In May 2006, however, the District Judge concluded that none of those safeguards applied and, in the ordinary way, he accordingly sent the case to us for a decision as to surrender.

At that stage, Mr McKinnon had an opportunity to make representations to Ministers directly against his surrender – but, as above, only on certain limited grounds set out in the ‘Act’. And where, as in this case, such representations are found not to be applicable or not to be made out, the law requires the Home Secretary to order surrender. That decision was reached in Mr McKinnon’s case in July 2006.

As was his right, Mr McKinnon then appealed to the High Court, both against the Judge’s decision of May 2006 and that of the Home Secretary in July 2006. The High Court dismissed those appeals in April 2007. Mr McKinnon then took his case to the House of Lords which, in July 2008, also dismissed his appeal. Mr McKinnon then made an application to the European Court of Human Rights which in August 2008 rejected the application.

In this way, you will see that the case had withstood the closest possible judicial scrutiny before a supervening diagnosis of Asperger’s Syndrome was brought to our attention. Notwithstanding the Home Secretary’s limited role in the process and the late stage in the case at which Asperger’s Syndrome was diagnosed, you will understand that extradition may not take place if to extradite would be incompatible with a person’s rights under the European Convention on Human Rights (ECHR). In these exceptional circumstances, it was therefore agreed to consider fresh representations, including on grounds of Mr McKinnon’s diagnosis of Asperger’s Syndrome, as to whether the order for Mr McKinnon’s surrender to the USA should be upheld. Notwithstanding what has been reported in some quarters, that is not to say that we were able to approach the case with a broad, residual or general discretion: the correct legal consideration was whether to proceed with extradition was compatible with Mr McKinnon’s human rights. If extradition is not compatible with Mr McKinnon’s human rights extradition would have to be halted, but if extradition is compatible with the ECHR there is a legal duty to extradite and to act in any other way would be unlawful. The decision as to the effect extradition would have on Mr McKinnon’s human rights was not a decision to be taken lightly; but, after examining all of the material and evidence relied upon, we concluded in October 2008 that the material and evidence relied upon against Mr McKinnon’s extradition to the USA did not engage his rights under the ECHR. Accordingly, there was an obligation under the Extradition Act 2003 to give effect to the order for extradition.

As was their entitlement, however, those acting for Mr McKinnon then sought and obtained the permission of the High Court for a judicial review of that further decision.

During May, Mr McKinnon also lodged a further application for judicial review, this time against a CPS decision in February 2009 not to bring a prosecution against him in the UK.

Following hearings of both matters (which included a careful weighing of all the evidence as to Mr McKinnon’s Asperger’s Syndrome), the High Court delivered its judgment on 31 July. They found that extradition would not contravene his human rights and that accordingly there was a statutory duty to proceed with extradition. Contrary to misleading reporting in some quarters of the press, the High Court specifically rejected the suggestion that there was any discretion which could be exercised to halt extradition. In view of the High Court’s conclusions it would (subject of course to any successful challenge to their decision) be unlawful to seek to halt extradition.

In the other matter, the High Court refused Mr McKinnon permission to mount a judicial review challenge to the decision not to institute criminal proceedings in this country. The High Court considered that the US was the better place for prosecution. The Court also considered that the challenge to the decision of the Director of Public Prosecutions (DPP) not to institute proceedings in the UK was ‘unarguable’. They also expressed the view that the challenge to the DPP’s decision was really a collateral challenge to the extradition process and that this was a ‘wholly unacceptable state of affairs’.

Mr McKinnon’s lawyers have given notice of their intention to seek leave to appeal to the Supreme Court (as the House of Lords is soon to become). I do not therefore propose to say more at this stage about the facts of the particular case – other than to hope that this background may be of some assistance not only in clarifying the Home Secretary’s role in the extradition process but also in demonstrating that those acting for Mr McKinnon continue to avail themselves before the courts of every opportunity to contest extradition. In this way, it may clearly be seen that the final outcome of the case and the UK’s treaty obligations are being subjected to the closest attention and to the greatest possible procedural fairness.

If Mr McKinnon is extradited and is subsequently found guilty and receives a prison sentence in the United States, it would be open to him to apply to serve that sentence in the United Kingdom. The application would require the consent of both the American and British Governments. The British Consulate in the United States would explain to Mr McKinnon, at his request, how to apply for the transfer.

Yours sincerely,

Miss C Johnson