Gary McKinnon and the extradition that wasn’t

by Stuart Withers

On Tuesday afternoon Theresa May, the Home Secretary, announced that she would block Gary McKinnon’s extradition request to the US. This is certainly joyous news and should be celebrated. But celebrated for what reason? The most alarming aspect about this decision is that in a period of less than two weeks two very starkly different results have occurred for the two highest profile extradition cases in the past decade. Both concerned extradition to the US, and only one extradition request was refused. Why is it that McKinnon’s case appears to be the antithesis of the terrorism cases of Abu Hamza, Babar Ahmad and Talha Ahsan? What has changed so significantly between the Secretary of State’s decision yesterday and the Home Office’s gleeful extradition rhetoric concerning the other case nearly two weeks ago? In a previous article Sarah Walker and I focussed on the challenges that extradition law faced in the aftermath of the recently extradited terrorist suspects. In light of that article, this one will pick up where we left off, looking at what has changed between now and then and whether McKinnon’s case has actually changed anything for the better.

In brief, Gary McKinnon was accused by US authorities of hacking into 97 US government computers between February 2001 and 2002, causing serious amounts of monetary damage. The US requested his extradition in 2005. After a series of legal battles, the case finally came before Theresa May in 2010 to make a decision as to whether or not to order his extradition. McKinnon, who suffers from Asperger’s syndrome, made representations to the Home Secretary on the basis of medical evidence, that there was a real possibility that he would commit suicide if extradited to the US.

When delivering her decision yesterday the Home Secretary  said to the House of Commons, that McKinnon’s extradition to the US “would give rise to such a high risk of him ending his life that the decision to extradite him would be incompatible with his human rights”. The law behind this being – as the Secretary of State is a public authority – that it would be unlawful under section 6 of the Human Rights Act 1998 for her to act in a way incompatible with McKinnon’s Article 3 rights, which prohibit inhuman and degrading treatment.

The case law on Article 3 and how it applies to extradition proceedings in English law stems from Lord Bingham in a case called Ullah [2004] 2 AC 323. In order to invoke 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”. A similar provision also exists viz. section 91 of the Extradition Act 2003, in which it is for the courts to determine whether on the basis of the requested person’s mental health it would be oppressive to extradite them.  Recently the High Court in Turner v USA set this bar extremely high holding that: “unless the mental condition of the person is such as to remove his capacity to resist the impulse to commit suicide, ….it will not be his mental condition but his own voluntary act which puts him at risk of dying, and therefore may make it oppressive to extradite him”. We can’t know whether May made her decision on this basis although a reasonably well informed guess would be that it was.

The decision not to extradite McKinnon on Article 3 grounds is to be congratulated. Whilst an unpalatable decision perhaps for the Home Secretary herself, using the Human Rights Act actually saved her from an extremely difficult political decision; a decision which according to Channel 4 News, was not viewed well by the US authorities. On the other hand, it must be considered as to whether Article 3 is being applied consistently to all those with mental illnesses facing extradition requests.

In the alleged terrorist extradition cases, as pointed out by Dominic Casciani from the BBC, there were also issues of mental health problems. In the European Court of Human Rights judgment (at para [193]), evidence was lodged before the court that stated that Talha Ahsan presented a real suicide risk if extradited to the US. What then is the difference been Ahsan and McKinnon?  The answer as tweeted by Dominic Casciani is “Edward Fitzgerald QC: Distinguishing feature between Talha Ahsan and #McKinnon was the v high suicide risk which 5 experts confirmed”. Applying the high threshold test of Turner it is clear that a very high risk of suicide is needed. Obviously this is a basis for medical assessment, but it raises the question of whether the test is set too high, and whether the semantic difference between real risk and very real risk of suicide affords enough protection on mentally vulnerable people? Once extradited, the decision is too late to revisit.

One noticeable welcome suggestion from the Home Secretary, that has campaigners sighing in relief, is the introduction of a new forum bar test. Having discharged McKinnon from his extradition she has now asked the Director of Public Prosecutions to consider bringing charges in the UK against him (an initial request was made in 2009, but subsequently rejected due to ‘insufficient evidence’.)

The case for the introduction of the forum bar was argued in the previous article. In essence the forum bar would halt extradition on the grounds that the alleged crime that constitutes the extradition request was committed wholly or substantially in the UK.  This is a welcome development. However the Home Secretary has found that the forum bar that already exists on the statute books, but has yet to be brought into force, isn’t suitable and we will therefore have to wait a little while longer yet for it to be brought into force. The Home Secretary is worried about satellite litigation on the decision of where the crime took place – as highlighted in the Scott Baker Review – and therefore is reviewing alternative options.

A crucial question to be asked is whether the Home Secretary knew at the time that Babar Ahmad and Talha Ahsan boarded the plane to the US that she would be blocking Gary McKinnon’s extradition and seeking to ask the Director of Public Prosecutions to investigate the matter, also raising the issue of forum. If she did, then allowing such drastically different results to occur for offences that were both committed on UK soil, and both involved websites and the internet, is extremely worrying. Not only does it have an unnerving stench of hypocrisy, but it also nullifies the rule of law. A basic principle of which is the need for legal certainty, and that like cases should be treated similarly.

Understandably supporters of Babar Ahmad were furious. Matthew Ryder QC tweeted:  “Babar Ahmad family happy for #McKinnon, but on govt’s approach:  all British citizens are equal but some are more equal than others”. Babar Ahmad and Talha Ahsan both having a case to say that they should have been tried in the UK, for websites both allegedly ran and accessed in the UK but were stored on US servers. However, as Dominic Casciani tweeted, the Scott Baker review at para 6.26 found that there was no basis for Ahsan to be tried here. In the same paragraph it is also argued that the District Judge in McKinnon’s case found that there was a case to be answered in the US for his extradition, a point that is still heavily disputed. This leaves us with the question of whether the issue of ‘forum’ for McKinnon is perhaps a political appeasement to the US authorities, who still would like a conviction. Whatever form the forum bar is brought to us in, it is extremely important to stop further extraditions in cases of alleged offences that were committed on UK soil. But it remains to be seen what level of protection the Home Secretary will enshrine in the future forum bar provision. It can only be hoped that the forum bar is available to Richard O’Dwyer before his extradition to the US for copyright infringement.

Having made, perhaps, one of the most important decisions in her career, Theresa May now wants to amend the Extradition Act further, so that cases are no longer sent to her for consideration. This is another welcome development that was also advocated in the Scott Baker Review (pg 289). The removal of the Secretary of State from finalising the extradition procedure removes a key component of what slows down extradition proceedings. Firstly it can take months, if not years, to come to a conclusion over whether or not to extradite, and secondly the legal challenges brought against that decision, such as judicial reviews and statutory appeals, can seem endless. By limiting the Home Office’s involvement and leaving it to judges the decision to extradite becomes one that is legal and factual, instead of one that is fraught with political difficulty. This decision to speed up proceedings, together with an announcement by the Home Office that they are working together with the European Court of Human Rights to speed up extradition cases, hopefully will bring swifter resolution to difficult human rights questions.

Finally, the last point made in the previous article, was the significant difference in the media treatment of those vilified alleged terrorists, such as Abu Hamza and Babar Ahmad, and the more innocent-appearing Gary McKinnon and Richard O’Dwyer. In the terrorist extradition case Abu Hamza was the sole focus of media attention, with Babar Ahmad, receiving some positive media, but somewhat clouded in the media furore of hatred for Hamza. Gary McKinnon on the other hand has received mainly overwhelming positive support from the media and the public. One Guardian journalist, Patrick Wintour even went so far as to say “T May (nearly) “I have concluded that Mr McKinnon’s extradition gave rise to a high risk that I would be demolished by the Daily Mail”.

Indeed the Daily Mail appears to be somewhat confused on the issue, condemning Hamza but clearly supporting extradition reform for McKinnon. Their approach is contradictory, both supporting the demolition of human rights for alleged terrorist, but supporting extradition reform for alleged government computer hackers. Such is the world of the media. Fortunately, since the Home Secretary’s announcement on the issues of forum and blocking McKinnon’s extradition Babar Ahmad and Talha Ahsan have been receiving more favourable coverage in the media, although regrettably it is too late for it to influence the decision to extradite them.

In summary Gary McKinnon’s case has been a long and difficult one and has highlighted the need for more extradition reform. The sheer amount of work done by campaigners on his behalf is astounding, and surely everyone involved in supporting his case should be extremely proud of yesterday’s result for him. It is just a travesty that the implementation of the reform promised following his case didn’t happen 12 days earlier so that some of those alleged terrorists, who also allegedly used computers in the UK to commit their crimes, could be tried in the UK. But was this, one might ask, a mere accident, or a form of political planning? The answer unfortunately will never be known. From McKinnon’s case we now have the possibility of a forum bar, together with less political interference in the extradition decision making process. These reforms should be welcomed, but let us hope that in future when two similar cases come along, the rule of law is upheld and they are both treated equally. Let us also hope for a fair and just resolution to Richard O’Dwyers case which, if a new forum bar is implemented, will hopefully mean that his extradition to the US will also be blocked.

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