Gary McKinnon avoids extradition

Gary McKinnon avoids extradition

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Gary McKinnon avoids extradition

 Background

In 2002 Gary McKinnon, a Scottish Systems Administrator, was charged with hacking into 97 United States military and NASA computers during a 13 month period between 2001 and 2002.  It was claimed that he deleted critical files, caused entire networks of computers to shut-down and paralysed munitions supply deliveries to the US Army.  The US authorities stated $700,000 was spent in rectification.

McKinnon was interviewed and later indicted to face seven counts of computer-related crime, each carrying a custodial sentence of up to ten years.

 

Extradition, the basics

The Extradition Act 2003 provides a swift method of ensuring those wanted to stand trial, be sentenced or serve a sentence are sent to the requesting country.  Guilt or innocence as to the charges faced, or mitigation as to the sentence, are irrelevant for the purposes of extradition.  Individuals facing extradition can consent willingly, in which case they will be extradited to the requesting country within a matter of days, or alternatively put forward various arguments to attempt to contest their extradition.

 

Article 3 arguments

McKinnon’s legal team successfully contested his extradition by utilising article 3 of the European Convention on Human Rights.  Article 3 states that no one shall be subject to torture or to inhuman or degrading treatment or punishment.  McKinnon was diagnosed in 2008 as suffering from an autism spectrum disorder, compounded with clinical depression.  Supporters of McKinnon claimed he was suicidal and would not survive incarceration in a US prison.  His lawyers argued that it would be unnecessary, cruel and inhumane to remove McKinnon from the UK, when he could be tried here.

In order to successfully use Article 3 as a bar to extradition it is necessary “to show strong grounds for believing that the person if returned faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment” (Ullah [2004] 1 AC 323). Concerns as to mental health are also a governing factor in extradition cases; s.91 of the Extradition Act 2003 deals with cases where it would be oppressive to extradite a particular individual due to their mental health.

 

The decision

On 16th October 2012 the Home Secretary Theresa May announced that McKinnon’s extradition had been blocked, stating that it “would give rise to such a high risk of him ending his life that a decision to extradite him would be incompatible with Mr McKinnon’s human rights”.  The Director of Public Prosecutions, Keir Starmer QC, will now decide whether McKinnon will face trial in the UK.

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Sara is a barrister at Doughty Street Chambers practising in crime.

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