Monday, 24 May 2010

Gary McKinnon: the legal documents

This week I am preparing a skeptical though balanced blogpost on the Gary McKinnon extradition case.

I have now collected together the following source documents for this exercise.

I set them out below so that it is easier for others to form their own view on this extraordinary case.

The documents are:

the original New Jersey indictment (2002);
the original Virginia indictment (2002);
the original unsuccessful appeal of the extradition decision (April 2007);
the further but unsuccessful appeal to the House of Lords (July 2008);
the refusal by the European Court of Human Rights to grant interim measures (that is stay the extradition) (August 2008);
the successful application for permission for judicial review of the extradition decision (January 2009) following the diagnosis of Asperger's Syndrome;
the the unsuccessful application for judicial review of the extradition decision (July 2009); and
the refusal for permission to appeal the unsuccessful judicial review of the extradition decision (October 2009).

Please do post any further materials and links below.


No purely anonymous comments will be published; always use a name for ease of reference by other commenters. Flaming or venting comments are also unlikely to be published.


Dr. Brian Blood said...

Maybe this:

Dr. Brian Blood said...

One more useful legal link would be 13 Jan. 2010 High Court (?) judgment (Mitting) that extraditing McKinnon maybe unlawful - this was to have gone back to court a few days ago by the new home secretary has asked, so I understand, for a postponment.

A few more interesting non-case-note links:

(which includes a large number of links to earlier general comment)

ObiterJ said...

Your plan to review this exceptionally important case is very welcome.

From the viewpoint of the general public, the entire Extradition Act 2003 arrangements with the USA are an abomination. They must be changed to work strictly on a reciprocity basis.

I think I am right in saying that the USA is a Category 2 territory and, under section 87 of the 2003 Act the judge could have prevented an extradition on human rights grounds and under s91 he could have prevented extradtion based on the physical or mental condition of the person.

Just how are the courts and, for that matter, the government dealing with these issues. is there a case for suspending extradition arrangements until there is reciprocity?

Dr. Brian Blood said...

I believe this reference answers ObiterJ's questions:

I don't myself think that reciprocity is an important issue in this case.

If the seriousness of the offences warrants extradition and the US authorities have given satisfactory assurances about the treatment of McKinnon when he is transferred the US, I cannot see any good reason why extradition is inappropriate.

It would appear that some of the psychiatric evidence has been rather unconvincing.

phisheep said...

One thing I am curious about:

If McKinnon had been charged in the UK and tried here (perhaps even after the extradition request) could he then have avoided extradition on the grounds of double jeopardy?

Might seem a minor and perhaps dumb question, but I haven't seen it addressed anywhere.

deepcut said...

Hi. I hope you respond to comments that don't necessarily condone your point of view.

To quote you :

"Next weekend I will be doing a blogpost providing a skeptical view on the McKinnon case."

"This week I am preparing a skeptical though balanced blogpost on the Gary McKinnon extradition case."

I hope you realise, as a writer, that to be skeptical and balanced is something of an oxymoron.

I hope your future posts are more carefully thought through and that it is a balanced article.

Dr. Brian Blood said...

Surely, skepticism and balance are in no way mutually exclusive.

Those who have followed over may years JoK's musings will be aware that balance lies in a willingness to challenged any authority, any opinion, and to test and question all points of view for consistency, reasonableness and moral justification.

I would be most surprised were skeptical balance to mean only being prepared to accept unquestioned any and all opinions no matter how extreme, morally repugnant or inconsistent.

Anonymous said...

deepcut wrote:
>I hope you realise, as a writer, that to be skeptical and balanced is something of an oxymoron.

Well, no. JoK is using 'skeptical' in a different sense than you think. In this specific usage it means something like 'seeking and considering all evidence for assertions made in the course of an argument'.

A couple of minutes spent reading older blogposts will surely lead to the conclusion that the forthcoming article is likely to be balanced, so I suspect you aren't a regular reader, and didn't.


Madam Miaow said...

" ... US authorities have given satisfactory assurances about the treatment of McKinnon when he is transferred the US,"

Post Guantanamo and Abu Ghraib?

A possible 70 years never seeing his family until the day he dies? Strikes me as a bit excessive, I must say.

Dr. Brian Blood said...

This is taken from the 30 July 2008 House of Lords judgment:

"Mr Stein [US lawyer] confirmed that he was authorised to offer the appellant a deal in return for not contesting extradition and for agreeing to plead guilty to two of the counts laid against him of "fraud and related activity in connection with computers". On this basis it was likely that a sentence of 3-4 years (more precisely 37-46 months), probably at the shorter end of that bracket, would be passed and that after serving 6-12 months in the US, the appellant would be repatriated to complete his sentence in the UK. In this event his release date would be determined by reference to the UK's remission rules namely, in the case of a sentence not exceeding four years, release at the discretion of the parole board after serving half the nominal sentence, release as of right at the two-thirds point. On that basis, he might serve a total of only some eighteen months to two years.

The predicted sentence of 3-4 years was based upon sentencing guidelines themselves based upon a points system. The prosecution would recommend to the court a particular points level which the court would be likely to accept. Similarly the prosecutor would recommend to the section of the US Department of Justice responsible for administering the Convention on the Transfer of Sentenced Persons that the appellant be transferred and this recommendation too was in practice likely to be accepted.

If, however, the appellant chose not to cooperate, and were then extradited and convicted, he might expect to receive a sentence of 8-10 years, possibly longer, and would not be repatriated to the UK for any part of it. He would accordingly serve the whole sentence in a US prison (possibly high security) with at best some 15% remission."

Much has been made of a potential 70 year sentence but the source of this figure is unclear.

Mike from Ottawa said...

"Surely, skepticism and balance are in no way mutually exclusive."

They can be. Skepticism in the sense of requiring reason applied to evidence to support a conclusion can be at odds with today's media idea of 'balance', which is to give 'both sides' of any issue equal credence regardless of the fact the issue may be whether the Earth is round or flat.

Skepticism would not be at odds with 'balance' where balance means presenting differing views fairly, without presuming the outcome would be to present them as equally credible.

JoK's posts I've read have been balanced in the latter sense.

Okrent's Law - The pursuit of balance can create imbalance because sometimes something is true.

deepcut said...

Regarding the source of the potential 70-year sentence, it would seem to be the indictment itself. This lists seven counts of computer crime each warranting (potentially) a ten year sentence.

His legal team have also brought up a few examples of where the DoJ has reneged on previous deals and, what with the alleged 'see him fry' comment in addition to those examples they probably have little trust in the promises of the previous administration.

With regards to the current administration, a president who has broken nearly every pre-election promise he made to the American people, and a new information-warfare movement, probably don't instill much trust either.

Dr. Brian Blood said...

I would distinguish JoK's blog from that form of journalism, 'churnalism', where Okrent's Law may apply - a distinction that JoK himself has highlighted; see

Balance, as I understand it, lies not so much in the choice of content as in the skeptical evaluation of that content.

Where journalists often draw on anonymous sources to support their polemics, the reader is quite unable to distinguish the prejudices, errors, misunderstandings, etc. of the journalist from those of the sources.

JoK argues that because the blogger draws together and identifies his or her sources (by providing hyperlinks) the reader is free to draw their own conclusions from their own understanding of the issues involved.

The blogger is more an enabler than a purveyor - raising issues, listing useful sources and providing thoughtful commentary (his own as well as that of others).