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.
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.
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