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Pentagon hacker Gary McKinnon has launched a legal challenge against the director of public prosecutions (DPP), claiming that he should be prosecuted in the UK for his crime of breaking into military computer systems, instead of being extradited to face charges in the US.
The DPP said he could not prosecute McKinnon in the UK because it did not have the evidence on which to base the prosecution. The 2003 Extradition Act allowed the US to request McKinnon’s extradition without supplying prima facie evidence.
McKinnon applied in May for a judicial review of the DPP’s decision to disregard his autism when making its decision in February not to prosecute him in the UK.
“The director’s decision is procedurally flawed and unlawful for it wrongly fails to consider and analyse important expert medical evidence concerning the effects of extradition on the claimant and his mental health,” said Edward Fitzgerald and Ben Cooper, barristers for McKinnon, in the application.
Medical experts including Simon Baron-Cohen, a renowned Cambridge University autism expert, said in documents sent to the Crown Prosecution Service in December that extradition and long-term incarceration in a US jail could exacerbate his autism, leading to psychosis and even suicide.
There is a rising tide of anger in the UK over the way that the Government handles extradition requests from the US and the fact that laws designed to combat terrorism are being used against businesses.
As several prominent cases head for the House of Lords, what is being done to change a situation that many see as unfair and biased against UK citizens?
Following the tragic events in New York and Washington DC on 11 September 2001, the world’s attention was drawn to a new threat of global terrorism. In the wake of the 9/11 attacks, the UK introduced new extradition legislation and, in January 2004, the Extradition Act 2003 came into force. The act divided the world into two halves: ‘Part 1’ territories, including European countries, and ‘Part 2’ nations, including the US, Albania, Turkey and Russia.
Under the terms of the act, Part 2 countries do not have to produce evidence of the alleged crime before an extradition request is granted by the Home Secretary. The UK’s relations with the US are also governed by a 2003 treaty – or ought to be. The UK has ratified the treaty, but the US has not yet signed up to it. This means that if the UK wants to extradite someone from the US, a prosecutor must produce proof of the crime, but not the other way around.
[ US Senate approved UK/US extradition treaty unanimously on Sept. 29, 2006]
Although the Act does provide a right of appeal, as the Nat West Three case has shown, there are in reality exceedingly limited grounds on which a person can appeal against an extradition order made under the Act.
In practice therefore if the US makes a proper request to the UK to extradite a person, in effect simply ensuring that the paperwork is in order, then there are very few ways in which the extradition can be challenged. Further, if a person has the temerity to challenge the request the US will regard him as a fugitive from justice.
