Should extradition arrangements between the USA and the UK, established in connection with counter-terrorism and serious crime, be used against Mr Gary McKinnon who suffers from Asperger’s Syndrome? Asperger’s is a disability on the higher functioning end of the Autistic spectrum, and I must declare a special interest, as a close family member has it.
Mr McKinnon is a computer hacker who admits he broke into various USA defence systems in an attempt to find out about “UFOs, free energy and secret government”; occasionally he left helpful comments that imparted the obvious (e.g. “your security is cr*p”). However, as the hacking straddled the events of 9/11, the breaches in security came at a very sensitive time for the Bush Administration. Overlooking all embarrassment caused by the inadequate security employed by US Government Agencies, the authorities wanted McKinnon extradited to the USA to face up to 70 years in jail.
There have been a number of court hearings in the UK on this extradition; McKinnon has lost them all. On 14th July 2009, the BBC reported that the Director of Public Prosecution “decided there was insufficient evidence to support a UK prosecution under the Computer Misuse Act” (under Section 2 of the Computer Misuse Act which carries a significant custodial sentence).
This declaration raises a very curious conundrum that has always troubled me about this extradition: there is not enough evidence to send him to jail in the UK but there is enough evidence to extradite to the USA where McKinnon faces a life-time sentence.
I think part of the answer to this conundrum can be found in a 50 page document that leaked from the DPP’s office. It confirms the Section 2 offence was in the DPP’s mind, and was published on the Computer Weekly web-site. It contains statements such as the following:
- there is no evidence that the ACPO guidance concerning the examination of digital evidence has been followed, nor is there evidence of continuity”.
- Witness statements from USA witnesses “all tend to refer to reports concerning the examination of machines by others and their statements contain a lot of hearsay”.
- “Without sight of the reports themselves it is not necessarily possible to ascertain how much of the material will be admissible” (as evidence), and
- “there is insufficient evidence currently available to prosecute Mr McKinnon”
The DPP’s lack of evidence raises two very important questions: (a) “why did the USA authorities hold back on providing the evidence?” and (b) “why did the DPP not ask for the missing evidence that he identified in his reports before rejecting the option of undertaking a prosecution in the UK under Section 2 of the Computer Misuse Act?”. After all Parliament deliberately enacted the Computer Misuse Act so that hacking in the USA, from the UK, could be prosecuted in the UK?
Could the answer to these questions be something like not wanting to harm that “special relationship” at a time when the “war on terror” was in full swing? If so, the risk is that McKinnon’s extradition is motivated by politics rather than by justice. However, I think there is much simpler answer to this question; it is quite simply that the DPP could not trust the jury if the case were to be prosecuted in the UK.
In 1993, a four-week trial of Paul Bedworth, a 19-year-old student, accused of unauthorised access to several computer systems under the Computer Misuse Act, ended with his acquittal. Like McKinnon. Bedworth said was he now understood that hacking was illegal and, by his own admission, “stupid”.
However, Bedworth’s barristers introduced an unusual defence of “computer addiction”. Expert witnesses testified to his compulsive behaviour, and after testing Bedworth, described him as an obsessive person, totally besotted by computers. Now anyone who knows anything about Asperger’s Syndrome knows that obsessive behaviour is one of its main characteristics; both Newton and Einstein were obsessed with physics, for example.
So I also conclude that it is likely that the DPP also knew that any UK prosecution could easily fail if the obvious “obsession” defence was mounted. When this is combined with the unpopularity of the Bush Administration over the War in Iraq, the poor security that would be described in open Court, I think the DPP concluded that a jury might acquit, irrespective of what evidence he laid before the Court.
That is why, I think, the DPP did not ask the obvious questions of the Americans. He simply did not want to know the answers that would mean he would be in a position to prosecute in the UK.
Magna Carta, in 1215, established the idea that any judgement is by a “jury of one's peers”. In McKinnon’s case this does not mean a jury of individuals drawn from the community in which he lives; it means deliberately choosing a jury which is over 3,500 miles away for fear that a UK jury might acquit.