Saturday, 5 June 2010

A Skeptic Looks at the McKinnon Case: Part Two

This is the second part of my examination of the controversial and well-known extradition case of Gary McKinnon. Part one is here.

(Part two was originally intended to deal with the plea bargain and extradition treaty, but a technical hitch has unfortunately delayed this. So this part deals instead with the crucial decision by the Crown Prosecution Service not to prosecute Mr McKinnon in the UK, and also with the relevance to this litigation of the claim that Mr McKinnon was looking for UFOs.)

Why did the CPS not prosecute?

The CPS decision not to prosecute Mr McKinnon is for many the most puzzling part of this litigation.

After all, Mr McKinnon was in the UK the whole time.

Here it is important to note that Mr McKinnon has admitted to conduct which would be a breach of section 2 of the UK Computer Misuse Act 2000 but not (as yet) the "unauthorised modification" offence under section 3.

It is also important to note that the US allegations against Mr McKinnon go substantially beyond mere unauthorised access, and include allegations of extensive and serious file deletions and of consequential damage and operational disruption.

In essence, as set below, the main reason why the CPS will not (and perhaps cannot) prosecute in the UK appears to be that the US serious allegations as to Mr McKinnon's file deletions and damage are based on evidence not easily obtainable by the CPS.

In 2003, the CPS described their decision not to prosecute as follows (see para 8 here):

"A number of factors were considered to be relevant to the decision as to the appropriate venue for prosecution. Whilst not an exhaustive list these factors include the location of witnesses and the location of real evidence, where the harm was done, the ability of the prosecution to frame charges that reflected the offenders criminality, the existence of unused material, access to unused material and the availability of the procedures to deal appropriately with it.

"The [National Hi-Tech Crime Unit] became involved at the request of the US authorities. The US authorities initiated the investigation. The investigation was likely to be complex with a large number of witnesses located throughout the United States and with a large number of computers that required examination also situated throughout the United States. McKinnon appears to have targeted systems owned by the military or by related organisations therefore in addition to the sheer practical difficulties of UK police carrying out an investigation on this scale in the United States there were likely to be issues surrounding unused material and in particular unused material that might be considered sensitive."

In June 2005, the reasons for the CPS decision were stated as follows (see para 10 here):

- the fact that the 'harm' occurred in the US: the activity appeared to have been directed against the military infrastructure of the US;
- the investigation commenced in the US: the UK Police only became aware of the investigation having received a request for legal assistance;
- there were a large number of witnesses most of whom were located in the United States;
- all of the 'real' evidence, save Mr McKinnon's computer was located in the US: the task of gathering sufficient evidence to initiate proceedings in the UK would have been immense;
- the US prosecutors were able to frame charges which reflected the extent of Mr McKinnon's criminality, whereas the CPS were restricted in the choice of charge due to statutory time limits; and
- the bulk of the 'unused' material was located in the US: given the nature of the offences that material was likely to include material which might be considered sensitive and the US Courts would be best placed for dealing with issues surrounding this material.

In April 2007, the High Court described the CPS position in the following way (see para 36 here)

"The CPS did consider whether to launch a prosecution in the UK and for good reason decided against it. The defendant intentionally targeted computers in the US; his actions resulted in criminal damage being suffered there, as well as causing very considerable disruption to the workings of those computers resulting in interference and disruption to military activities in the US. It is not my task to determine which state has the better right to prosecute, but for what it is worth my view is, unquestionably, if the defendant is to face prosecution, it should be in the US."

In December 2008, Mr McKinnon's lawyers wrote to the DPP asking for the decision not to prosecute to be revisited. The High Court described the response as follows (see para 26 here):

"By letter dated 26 February 2009 delivered by hand to the Claimant's solicitors, Alison Saunders, the Director of the Organised Crime Division, of the CPS, replied to the letter of 23 December 2008. She stated that the Claimant's case had been reviewed in accordance with the Code for Crown Prosecutors. He had admitted to activity which would amount to an offence under section 2 of the Computer Misuse Act 1990. However, there was insufficient evidence to proceed in respect of an offence under section 3, because he had never accepted an intention on his part to cause any impairment or damage to the computer systems he is alleged to have accessed in the US. The conclusion had been reached that the evidence available to the CPS did "not come near to reflecting the criminality that is alleged by the American authorities. … We would also need to be satisfied the prosecution would be able to discharge their duty in relation to unused material given the undoubted existence of sensitive material". In these circumstances, the public interest test did not arise."

The CPS then issued this Press Release:

"The Crown Prosecution Service (CPS) has today announced that it will not prosecute Gary McKinnon in relation to allegations of computer misuse. This decision follows a careful review of all available evidence including further material and admissions to offences under Section 2 of the Computer Misuse Act 1990 which were submitted by Mr McKinnon's solicitors.

"Alison Saunders, head of the CPS Organised Crime Division said: "We identified nine occasions where Mr McKinnon has admitted to activity which would amount to an offence under Section 2 of the Computer Misuse Act (unauthorised access with intent). Although there is sufficient evidence to prosecute Mr McKinnon for these offences, the evidence we have does not come near to reflecting the criminality that is alleged by the American authorities.

""As with every case the CPS considers, Mr McKinnon's case was reviewed in accordance with the Code for Crown Prosecutors, a public document which prosecutors must follow when deciding whether or not to charge. It states that a defendant 'may want to plead guilty to a different, possibly less serious, charge because they are admitting only part of the crime'. CPS lawyers 'should only accept the defendant's plea if they think the court is able to pass a sentence that matches the seriousness of the offending'. Mr McKinnon's offered pleas to the Section 2 offences do not allow the courts this option.

""These were not random experiments in computer hacking, but a deliberate effort to breach US defence systems at a critical time which caused well documented damage. They may have been conducted from Mr McKinnon's home computer - and in that sense there is a UK link - but the target and the damage were transatlantic."

"In light of all of the evidence, the CPS also considered offences under Section 3 of the Computer Misuse Act (unauthorised acts with intent to impair). In order to charge an offence under this act the CPS must prove that any offender must have the 'requisite intent' to cause the unauthorised modification of the contents of a computer. Mr McKinnon denies having any malicious intent and, in the absence of further evidence, there is insufficient evidence to prosecute him with any offence under this section of the Act.

"The House of Lords has also suggested that Mr McKinnon's activity would have amounted to an offence under Section 12 of the Aviation and Maritime Security Act 1990 but the CPS has not been provided with any evidence to support this offence.

"When the case was first notified to the CPS, it became clear that this was an extremely complex enquiry and would require the examination of a large number of computers, the majority of which were situated in the US. In 2002 the CPS met with prosecutors from the United States, following which it was agreed that the UK would cede jurisdiction to US authorities

"Mrs Saunders continued: "Having reached our conclusions on these matters, as is our wider duty in accordance with the Attorney General's guidance for handling criminal cases in the USA, we also reconsidered in which jurisdiction the case is best prosecuted - and that remains the United States.

""The facts have remained the same. The bulk of the evidence is located in the United States, the activity was directed against the military infrastructure of the United States, the investigation commenced in the United States and was ongoing, and there are a large number of witnesses, most of whom are located in the United States."

"The CPS did not consider Mr McKinnon's diagnosis of Asperger's Syndrome. This could have been considered under the second of the Code tests - whether it is in the public interest to prosecute. All cases must first pass an evidential test and then the public interest test only if that test is satisfied. Because this stage was not reached, the public interest test did not therefore arise.

"The Director of Public Prosecutions, Keir Starmer QC, was consulted on the decision."

Not long after, Mr McKinnon appears to have reconsidered his view not to plead guilty to the offence under section 3 of the Computer Misuse Act (see paras 32 and 33 here):

"By letter dated 5 June 2009, the Claimant made further representations and indicated that he would be willing to plead guilty to an offence under section 3 of the 1990 Act. Accordingly, the Director was invited to reconsider the decision not to prosecute, since the evidential test was now satisfied, having regard to the wider public interest which, it was asserted, pointed to a prosecution in the United Kingdom. The Director was further invited to "have full regard to Article 3 and Article 8 of the Convention".

The CPS responded by letter dated 8 June 2009. It refused to change its decision and (see para 33 here) contended that:

"(a) the offer to plead guilty was simply a device by which the Claimant sought to avoid extradition.

(b) the invitation to prosecute the Claimant amounted to an impermissible collateral challenge to the extradition process.

(c) the issue of whether it was compatible with the Claimant's Convention rights to extradite him to the US was an issue which fell to be determined within the extradition process.

(d) the Director could not make a decision at the end of the extradition process which had the effect of undermining the decisions made by the domestic courts.

(e) that a decision whether to prosecute an individual should not be the subject of negotiation, all the more so where prosecution is sought by a potential defendant as a means of avoiding extradition and where the domestic courts have rejected challenges to the extradition request.

(f) that upon reflection the conclusion that the Claimant's admitted conduct gave rise to offences contrary to section 2 of the Computer Misuse Act 1990 had been too generous."

Mr McKinnon then sought to challenge this decision by judicial review, but failed. A further CPS Press Release stated:

"In response to today's judgment from the Administrative Court in relation to Gary McKinnon, Alison Saunders Head of the CPS Organised Crime Division said:

""We welcome today's judgment which accords with the CPS interpretation of the legal position regarding Mr McKinnon's extradition and prosecution. The CPS has maintained throughout that the appropriate jurisdiction for prosecuting Mr McKinnon is the United States. There is insufficient evidence available in the UK to try Mr McKinnon for the totality of his alleged offending. The Court of Appeal today agreed that this was a "justifiable, if not inevitable, conclusion"."

As regular readers of this blog will know, I am not a great fan of the CPS and its sometimes illiberal decision-making about prosecutions.

However, has the CPS really made a bad decision here?

On one hand, Mr McKinnon admits the section 2 offence and seems poised to admit the section 3 offence.

In such circumstances, there would seemingly be no need for the CPS prosecution to mount an extensive international evidence-gathering exercise.

On the other hand, the CPS claims that the evidence simply is not before them, and that it is in the US.

Moreover, the CPS contend that the scope of the US allegations cannot be met by what can be proved in a domestic court, especially in respect of the file deletions and the alleged damage.

Perhaps the CPS has a point: it cannot bring a prosecution just because the offence will be admitted, if the CPS otherwise has not got any access to the evidence to justify bringing the prosecution.

It is surely correct that the CPS cannot prosecute just for convenience, if it has no evidence to actually justify the prosecution.

So the CPS may be in a genuinely difficult position.

The US allegations are such that, in respect of the alleged damage caused by the hacking, there does not appear to be a real choice between a UK or US prosecution.

One would think that the sensible way forward would be for the US to drop the damage allegations, allowing the CPS to prosecute Mr McKinnon for the section 2 unauthorised access offence alone, on the basis of his own admissions.

The UFOs

Just a quick note on the relevance of Mr McKinnon looking for UFOs and similar things in this litigation.

There isn't any.

Indeed, at an early stage in this litigation, the approach of Mr McKinnon's lawyers was very different.

Mr McKinnon's motivations were to be taken as political: so political that he should not be extradited because of his political opinions.

As the first High Court judgment stated (paras 16 and 17 here):

"Section 79 required the District Judge to decide whether extradition is barred by "extraneous considerations".

"By section 81, a person's extradition to a category 2 territory is barred by reason of extraneous considerations if (and only if) it appears that
"(a) the request for his extradition (though purporting to be made on account of the extradition offence) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinions, or
(b) if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions."

"The point sought to be made by Mr Lawson is that the US Government is relying upon evidence of Mr McKinnon's admissions to being the author of the words "US foreign policy is akin to government-sponsored terrorism these days", "It was not a mistake that there was a huge security stand-down on September 11th last year" and "I am SOLO. I will continue to disrupt at the highest levels". Mr Lawson further suggests that the US Government has been embarrassed at the ease with which Mr McKinnon obtained access to supposedly secure computers. Upon this basis, he suggests that, at the very least, Mr McKinnon might be prejudiced at his trial or punished by reason of his political opinions. He points out that the language of section 81(b) is that of "might be prejudiced … or punished …", suggesting that this is a relatively low test. Notwithstanding that the threshold is relatively low, this ground of appeal is totally lacking in merit. The relevant question under section 81(b) is not whether Mr McKinnon did what he is alleged to have done by reason of his political opinions. It is whether his political opinions (whatever they may be) are such that he would suffer prejudice at the hands of an American judge and jury. There is no evidence and absolutely no reason to suppose that Mr McKinnon might suffer prejudice of this sort."

After this section 81 defence fails, we hear no more of Mr McKinnon being "prejudiced at his trial or punished by reason of his political opinions".

Instead, we start to read in the tabloids about how he was looking for UFOs all along.


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


Madam Miaow said...

Interesting, of course. So Gary could be a political prisoner if he is extradited?

I think there's another argument that isn't just about the letter of the law, and that's about whether you help reinforce the status quo where the state is increasing its authority in every corner of our lives.

This is a huge wide-ranging subject and I think I need to chuck you in the ring with a philosopher. Lawyers vs philosophers. Hmmm, I'd pay to watch that one.

I don't see how Gary can get a fair trial when the computer evidence, according to one forensic expert, hasn't been protected under the ACPO Guidelines.
And then there's the failure to produce evidence — such as "hash values" or fingerprints — to verify the prosecution's claims, and too much reliance on hearsay. I'm no expert but this is what I gather from what's been argued elsewhere.

James Jones said...

I am as you will soon see a legal ignoramus. I however note:-

Garry McKinnon is alleged to have hacked into about 100 individual computers and faces horrendous penalties including transportation and effectively life imprisonment in that foreign country.

Google has according to press reports admitted in the last few days to hacking into hundreds of thousands or millions of UK computer systems comprising many more individual computers. This offense involves perhaps thousands of times a greater number of computers. The offenses were backed by massive funding on a scale comparable to government backed espionage and were surely explicitly illegal here. These offenses also appear to extend across the entire European Union involving yet further multiples more of computers and computer systems country by country.

Surely this hacking and data gathering *will* include information useful to terrorists? It cannot possibly fail to do so.

No one has yet suggested extraditing Google executives or employees or directors or shareholders from the US to stand trial here against this truly monstrous crime.

No one has raided UK based Google employees homes in the middle of the night and removed all available computer systems for examination and detained the relevant employees and perhaps relatives and other co-residents for questioning.

Why might it be that these grievous offenses on a truly horrendous scale have been ignored up to the present time by the UK authorities?

Is it that monster crimes are not worth the trouble? Better to focus on the next Barry George, a defenceless private individual. Ruin their lives, leaving the rich to go about their nefarious activities completely undisturbed.

Finally I note that there is no sign of Google having carried out the same survey in the USA. My bet is that they would all go straight to jail in such an event. Perhaps for that reason they have not been prepared to proceed.

Mark dj A said...

So far so good (your words seem to be based on the words that have been released by the CPS) - but is there any chance you can focus on the complete lack of ANY words/info relating to the security at the US end of things that allowed a low level computer man to get into such highly dangerous areas of the US defense network? There is little or nothing out there. I would love to know what you find. Who was in charge of their security? Which company? Who got fired? Where are they now? Are they instrumental in the pressure to 'get' Gary? I would love to know.

Kimpatsu said...

There is no evidence and absolutely no reason to suppose that Mr McKinnon might suffer prejudice of this sort.
This plugs nicely into my doing what I promised, which is to describe my other reasons for opposing extradition in response to part II of Jack's blog post.
To be blunt, whoever rendered this opinion is an idiot, or a political stooge of a Zanu-Labour government who ordered the British ambassador in Washington to "crawl up the White House's arse and stay there".
It is often said with some (not unjustified) cynicism that the definition of a jury is 12 people too stupid to get out of doing jury duty. Certainly in the US, jurists tend to be working class people who are grateful for the days off work that jury duty brings them. As the work of fellow skeptic, magician, and psychologist Richard Wiseman (among others) has shown, such people are prone to make decisions early in a trial and then disregard all evidence to the contrary. Florida-based lawyer Bernton van der Ploeg tells of how after one criminal case in which his client was acquitted, the jury forewoman told him the reason for acquittal: the jury had seen that the accused's date of birth was in May, and she said (and they all agreed) that no Taurean could possibly be guilty of the crime of which he was accused, so they voted to acquit. IOW, their verdict was based on astrology!
And this is only one example among many. The point being, a US jury IN GENERAL cannot be trusted to be fair and impartial. But it gets worse. Who here remembers the Louise Woodward case? She was the British nanny to a rich American family, accused of killing the baby in her care. She was convicted by an American jury, but the verdict was overturned on appeal as a "miscarriage of justice". Now comes the interesting part: during the trial, surveys of people in the US and UK revealed a striking difference between the two peoples. British respondents overwhelmingly replied to the surveys that they believed Woodward was innocent, and yet American respondents overwhelmingly replied that they believed she was guilty. Were the two countries not following the same trial? Were they not viewing the same evidence? Did one country know more than the other, which facts were swaying their opinions? The answer to all these questions, of course, is no. Because the decisions made by the vox populi of both countries had nothing to do with the evidence, and everything to do with visceral tribalism. Put simply, the British respondents were not saying "acquit Louise Woodward because of the evidence"; they were saying "those arrogant bastards who think they rule the world have no right to sit in judgement on one of our own". Conversely, the American populace (at least, the kind likely to respond to such surveys, who are exactly the kind of Americans to sit on a jury in the US were, as psychological evidence shows, prone to disregard the evidence and convict Louise Woodward of the crime of being non-American. (Remember also Senator Jesse Helms, who gave voice to this very "we are the best in the world" arrogant prejudice when he called the Hague a "kangaroo court"; i.e., he did not believe that non-Americans had any right to sit in judgement on their American superiors.)
And that is why Gary McKinnon should not be extradited to face trial in the US. Under the current setup, there is no way that he can receive a fair trial because it is overwhelmingly likely that the jury will have already made up their minds to find him guilty before they are even empanelled. The crime with which his charged hits all the big red buttons: non-American "attacking" (sic) America, being non-American, embarrassing the US military (hoo-ya!), and generally showing that America is not Number One in everything. And with the verdict a foregone conclusion, why bother with extradition? You might as well hang him in Britain and be done with it. If it's justice you're after, however...

Ryn said...

I'm finding this approach to be rather interesting. It doesn't get mired in the emotion that I've seen other bloggers and tweeters rely on, nor does it seem to rely on the reader taking the evidence you provide at its word.

It also confirms my suspicions of the media and/or public relations juggernaut in comparison to the legal trial. If there were originally a UFO connection, the missives left of "I am SOLO", et al., would strike me as being from a person who did not have a base with reality.

I am curious about one thing - the "free Gary" hashtag used in some of your tweets. Is Mr. McKinnon restrained or in custody somewhere awaiting the results of the extradition issue? Or does he have general free movement under monitoring?

I am curious to see what the skeptic view is on the extradition and the ASD argument will be. I am finding this more helpful in understanding the case than the emotionally charged responses I have received from Mr. McKinnon's advocates. I appreciate your deft use of Logos and Ethos, and am thankful that you acknowledge Pathos, but avoid using it as a crutch. Well researched and written, sir.

Elaine said...

It is interesting that in your analysis of the CPS 'decision' not to prosecute, you do not seem to have referred to Review Note 3, the CPS disclosure of the 'evidence', nor the forensic IT report of Professor Peter Sommers. If you had, you would see that the alleged 'criminal damage' represents the cost of installing the basic security that should have been on the machines in the first place, and nothing more. Without the alleged $5000 of damage per machine, Gary's actions were not extraditable, as I'm sure you are aware. Note also that that $5000 just so happens to be the exact minimum amount required to create an extraditable offence. Convenient, huh?

It is not simply the case that the 'evidence' exists only in the USA, but that in all likelihood there is no such evidence. Certainly that which has been offered by US prosecutors is mostly third party (noted as hearsay/no evidence by CPS), and/or forensically represents insufficient proof. I think I saw someone tweet you some links about this, which you might have pursued.

Note also that the CPS were keen in 2002 to prosecute on a CMA1 offence, since it was an open and shut case, and since 'no damage' was done. However, according to Russell Tyner (I believe), they were told 'from the very top' to 'stand aside' because the US wished to extradite. My understanding is that it was the then Attorney General Baroness Scotland from where this instruction came (remember how she was instrumental and 'made no apology' [Hansard 2003] for the admittedly one-sided nature of the extradition treaty?). I will try and dig out the source for you, don't have it to hand.

I understand also that the UFO explanation for his actions appears in his taped interviews under caution.

I am curious as to why you continue to refer only to the very heavily edited quotes from one of the hundreds of messages he left on the machines. The transcipts of HC July 09 (LJB) will illustrate how misleading and unrepresentative this mis-quote actually is. The fact remains that there are no real grounds to refute the account that, while searching for information on UFOS as per his life-long 'obsssession', Gary was shocked to discover no security on hundreds of US machines. Thus the motive for seeking to access the machines was his autistic pursuit of his obssession. On succeeding in this endeavour he then tried to alert the US authorities of their lax security by leaving, over the course of many months, repeated notes to that effect. If you consider the content of all those notes, as I believe the Home Affairs Select Committee did in November last year, you will see that these notes do indeed constitute a cyber-peace protest. They also show how Gary became increasingly concerned and frustrated that his notes were not taken heed of - it was in the end a student at one of the 6 universities whose computers he accessed, who eventually alerted the military. That Gary believed in consipiracy theories around 9/11 is neither unique, not a crime. The continued failure of the US military in their legal obligation to secure their systems, even after 9/11, only served to support that belief.

As an aside, if the information Gary accessed was so 'sensitive' or top-secret, why was it not protected? The obvious inference is that it was not 'sensitive' or top-secret at all, contrary to the US allegations.

Elaine said...

For the record, I believe the 'Free Gary' endeavour seeks to free him from the traumatising threat of extradition. If you have seen any of the public protests (readily available on YouTube), you will note that the slogan is 'A Fair UK Trial for Gary McKinnon'. Which many contend he has not yet received.

Dr. Brian Blood said...

I hope the plea bargain and extradition treaty considerations will not be long coming because from what we read above much of this appears to be, as the CPS surmises, 'so much wriggling' to avoid 'rough justice' in the US.

This opinion is brought sharply into focus in Jon Ronson's July 2005 article in the Guardian

which I strongly recommend reading.

Certainly the weight of opinion in the judgments in that the US has every right to feel aggrieved and to feel that it is in its own courts that McKinnon should face the music.

The subtle shift in emphasis in the McKinnon story as the plea bargaining (both with the US authorities and with the CPS) progresses confirms my feeling that McKinnon has been prepared to offer any plea just to avoid extradition - rather than accepting the seriousness of his alleged criminality.

Gia said...

James, I'm not a legal expert either, but I think you're misrepresenting things a bit.

Google didn't not hack nor crack any secure networks nor individual computers. They collected information from wifi networks which is publicly available AND collected bits and pieces of information sent over unsecured or unencrypted wifi networks. You could do exactly the same walking down any street with a wifi enabled laptop - and that's assuming you aren't a computer "expert".

What Google did is a bit like 'trespass', whereas what McKinnon is accused of is more like 'breaking and entering', 'theft' and 'criminal damage'.

He is accused of actively and intentionally targeting protected computers, circumventing their security, then deleting information etc

(Nerd pedantry alert)
If he stopped at simply 'finding a security flaw', pointed out the those flaws in the US military computers, then offered them a way of securing their networks from further attacks he would be considered a "hacker"... and, though he wouldn't entirely avoid prosecution, it perhaps wouldn't be so harsh (though the US has a long history of not taking lightly *any* breaches of computer security).

What he is accused of, however, is "cracking", which has malicious intentions - deleting files, stealing data, altering information, defacing websites etc.

Madam Miaow said...

"Wriggling"? Looks like a butterfly nailed to a wheel to me.

Blind power protects itself and there will always be those who choose to accommodate it. A US prosecution of Gary is entirely out of proportion, the sole purpose of which seems to be pour encourager les autres.

SuzOH said...

I wish to take issue with one comment, Kimpatsu said " Certainly in the US, jurists tend to be working class people who are grateful for the days off work that jury duty brings them."
In the US, far too many workers are paid by the hour. Many who serve on a jury will face loss of wages for a day or two because of it. In fact, when a lengthy trial is considered likely, the judge will sometimes check to see if he must release a potential juror because they would be too badly impacted by the loss of pay. It is illegal for an employer to deny pay to a salaried employee, but employers are often not happy about it.
There is such a thing as a jury fee, but it is usually only $20, enough to pay for parking and lunch.

Elaine said...

Not to mention that to extradite him for allegations which have been demonstrated not only to be unsupported, but in the case of the financial damage (on which the extradition request crucially rests), false (ie the sums do not relate to damage, but to the security costs for which the US military are legally liable), would, I would argue, be unlawful even under the terms of the present treaty.

That is before we get on to the HRA (art.7, anyone?).

And that is before we consider the precedent of 27th Jan 2010, whereby the freezing of terrorist assets was deemed unlawful, since the instruction had bypassed due parliamentary process. Note that the Ext.Act (2003) was passed under Queen's Prerogative... bypassing due parliamentary process. Parliament didn't see the wording of the treaty until some 3 months after it was signed. rule for terrorists, another rule for non-violent people with obssessional traits and communication impairments. That doesn't seem right, does it?

Elaine said...

Oh, and Gia? You can accuse someone of anything, but as for deleting files, stealing data, defacing, etc - those allegations have been roundly refuted by esteemed forensic IT expert Peter Sommer. You might want to google him if you doubt his credentials.

And using a standard Windows exploit to find blank administrator passwords is hardly 'hacking' by the defnition you give. There was no security for him to circumvent. He did indeed stop at leaving notes, and deleted nothing other than his own traces (which log files could not have compromised any systems, according to expert testimony, sadly not recounted here).

mantecanaut said...

Re your mentioning of the lovely Dickie Wiseman: "people are prone to make decisions early in a trial and then disregard all evidence to the contrary" - I certainly agree with but would suggest that it applies equally to those to both sides of the argument. Your continually hilarious 'ZanuLabour' gag rather informs of your own starting point.
Also had to chuckle at Madam Miaow's suggestion that all that legal stuff is all very well, but what we need is a philosopher. Which logical fallacy is that... Shifting the Goalposts or Special Pleading?
Ho ho, great stuff JoK.

Nick Sharratt said...

Facinating to see events in this case presented this way. It has already led me to reassess many of my own prior views of the case (based on media reports etc).

I'm even beginning to appreciate how with reciprocal computer misuse laws in different countries it can be 'reasonable' to prosecute in the country in which damage/access took place rather than the country the person was physically in (contrary to previous comments I've made on your blog) - although, I still feel this is a very difficult subject mixing the virtual with the physical location of crimes.

I look forward to the remaining parts of your analysis.

Madam Miaow said...

Who makes the laws? Who gets prosecuted? What is the purpose of those laws created by a bloated powerful state, in whose interest?

We used to deride this sort of tyrannical behaviour in communist countries and here we are behaving in the same way.

Yes, there is the letter of the law which JOK is very good at (even the laws devised retrospectively). But there's also a wider debate to be had. Tom Paine wasn't a lawyer but he had major input into the founding of the US and its laws. Shame his ideas and those of other progressive founding fathers such as Thomas Jefferson are being lost.

There's a growing fondness for power and I find it very creepy.

Dr. Brian Blood said...

While libertarianism has a long and honorable history, it does not represent the world as it now is, nor, necessarily, the best of all possible worlds.

How does one square a complaint about the US's wish to prosecute being disproportionate, while being prepared to countenance action by the UK authorities?

On what basis are we happy to complain about the quality of American justice but to overlook the problems we have with our own?

It is worth remembering that the successful judgment that led to Simon Singh's victory against the BCA included a quotation from an American judgment.

Further, Wikipedia makes an interesting observation about the Extradition Act 2003


"Extradition to category 2 territories (non-European Arrest warrant territories) has also caused some controversy as it removed the requirement on the USA to provide prima facie evidence in extraditions from the UK, requiring instead only reasonable suspicion. This was necessary to redress the previous imbalance against the USA under the 1870 Act, as the UK did not have to provide the more onerous prima facie evidence to extradite from the USA. The requirement for the UK is to show probable cause - and although not exactly the same as reasonable suspicion, they are more equal than the 1870 Act and are about as equal as can be, given the differences in the two legal systems and without violating the US Constitution"

JoK may like to comment on this in due course.

raincoatoptimism said...

very very interesting and revealing stuff this.

How loose the word might is in section 81, but if it is in the interests for the Americans to extradite McKinnon they would be sensible not to focus too much on the words used by Mckinnon in his online act. Those words are rather useful for those debating whether McKinnon is of sound mind or not.

Plus, the CPS difficulty is enough for those who want to see an extradition; they have all the capital they want since evidence of unauthorised access in the UK will be difficult to prove covers all the bases.

Since this rests on the hope the Americans will drop the damage allegations, in light of the reported embarrassment, a message might need spelling out to those of us who would rather not see McKinnon extradited: be worried, lobby hard, lobby sensibly.

Furthemore, the first reason given in the CPS response letter (8 June 2009)reads:

"(a) the offer to plead guilty was simply a device by which the Claimant sought to avoid extradition.

Tacticle pleas; unheard of.

Finally, I was saddened to misread the first two paragraphs on the section on UFOs on my first reading:

"Just a quick note on the relevance of Mr McKinnon looking for UFOs and similar things in this litigation.

There isn't any."

There was me thinking that JoK, from a legal perspective, was putting to bed the debate on the existence of aliens - no this time.

Gordon Rae said...

Quote: To be blunt, whoever rendered this opinion is an idiot, or a political stooge of a Zanu-Labour government who ordered the British ambassador in Washington to "crawl up the White House's arse and stay there".

Your bluntness is noted. How about you try sharpness? I'd really appreciate it if one or two of Gary's supporters actually went throught the evidence with the same patience and attention of detail that JoK has applied, and explained how the evidence supports their point of view.

The idea that the British government has acted like 'stooges' is not borne out by the facts. Gary has spent nine years going through the English legal process, which has been slow and meticulous, and he hasn't been handed over to Washington, even though his legal team's tactics have been examined and found wanting at every stage(see Part1 of this blog.)

I'm getting the impression that McKinnon was motivated by hatred of the Bush administration - and I'm getting that from his supporters, not from the skeptics.

His supporters also seem to be convinced that Gary committed the offences he's accused of. I've heard plenty of arguments that guessing the passwords of poorly protected networks isn't a criminal offence (apparently it's just "embarrassing") but that's the law he's accused of breaking, so if you don't doubt that he did that, can we please stop faffing around and move to a trial?

HDB said...

Thank you for continuing these blog posts. From this post, as a laycreature, I'm pretty well persuaded that the CPS's decision was a good one (although I realise you only quoted from them and not any opposing arguments). On to read part three next and see if I still think the same...

Kimpatsu said...

You misunderstand me. The working class (who predominantly constitute a jury in the US) are grateful for theday of work, because it's the relief from mindless drudgery. They are not self-employed, or doctors, or high-flown lawyers, or CEOs--people who enjoy their work. These people hate their jobs. If they won the lottery, they would quit their jobs immediately, whereas I would continue to do my job ebcause I enjoy cancer research. I feel I'm contributing to the betterment of humanity. It's the relief of the paid time off to which I was referring, not the financial remuneration. I hope that clears that up.

mantecanaut said...

"We used to deride this sort of tyrannical behaviour in communist countries and here we are behaving in the same way."

What, prosecuting someone who's broken the law? It's all very well using absurdly inflated hyperbole to suit your anti-occidental agenda, but at some point you have to admit that, despite your dearest wish, we are not living in a communist dystopia.

Gia said...

Elaine, I only said what he is accused of. You, however, seem to know exactly what he did and didn't do. No reason for a trial then, the US should just ask you...

Rude_mechanical said...

Mckinnon's act was analogous to that of a burglar who finds the door open. Now I suppose that the law ought to act against such burglars in ordinary circumstances- but in this particular case it is asserted that our security was jeopardised. Does anyone sleep easier in their beds in the knowledge that the barrier keeping terrorists out of Pentagon systems is that there is a law against entering?
In my view, McKinnon deserves an award for exposing incompetence. What he got was a prosecution motivated, I think, by corporate pique.