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Sunday, 6 June 2010

A Skeptic Looks at the McKinnon Case: Part Three

This is the third part of my examination of the controversial and well-known extradition case of Gary McKinnon.

The first part set out the procedural history of the litigation and the serious allegations being made by the US and the second part examined the CPS decision not to prosecute in the UK and the relevance of the UFO issue to this litigation.

This post deals with the plea bargain which Mr McKinnon rejected in April 2003.



To recap:
- the allegations against Mr McKinnon are very serious and particularised, and they relate to sustained and repeated hacking activity against 96 US government computers over a thirteen month period;
- the High Court and the House of Lords have stated that similar allegations would on conviction lead to a life sentence under UK law;
- the allegations go beyond mere unauthorised access to substantial file deletion (including of operational files) and operational damage;
- the US government claim to be able to document the deletions and operational damage;
- Mr McKinnon has admitted the unauthorised access, and his lawyers recently even indicated that he may admit to having caused damage if it meant he would be prosecuted in the UK not the US;
- the original appeal process was exhausted with a House of Lords decision in July 2008;
- the Crown Prosecution Service will not (and possibly cannot) prosecute in the UK in respect of the damage allegations, as the relevant evidence is in the US;
- the delays since 2006 are mainly due to the repeated appeals and other litigation in opposition to the extradition;
- the UFO issue has not been raised in the litigation and is seemingly counter to the seriousness with which his lawyers originally sought the courts to take Mr McKinnon's political opinions; and
- the litigation since July 2008 has been based on a diagnosis of Asperger's Syndrome made weeks after the House of Lords decision which had exhausted the original round of appeals and litigation.

(Please note I personally oppose the extradition, for reasons I will set out in the last part of this series of blogposts.)


The Plea Bargain

Mr McKinnon was originally arrested in March 2002 and questioned under caution; he was again questioned under caution in August 2002.

Later in 2002, his lawyers and the US authorities entered into plea bargain negotiations.

These negotiations lasted from November 2002 to April 2003 and took place by telephone and at meetings with officials at the US embassy.

That these negotiations even took place at all may surprise some who are following the campaign against the extradition, as it can perhaps be inferred that there was not any absolute objection to Mr McKinnon serving at least part of any sentence in a US prison.

At that time, for Mr McKinnon and his legal team, it was just a question of on what terms the sentence would be served.

The offer made seemed attractive.

As the High Court described, based on evidence from Mr McKinnon's lawyers (see para 41 here) the deal offered was:

"the maximum sentence for each of the computer offences was 10 years' imprisonment and that [in the words of the US representative] "if they go to trial the hard way, he is looking at approximately 51 months … if he goes voluntarily, he could be looking at a sentence of around 37 months – 2-2½ year range"."


The House of Lords in their decision set out the bargain offered and its background in the following terms (see paras 17 to 20 here):

"In August 2002 the appellant instructed Ms Karen Todner, senior partner of Kaim Todner, to act as his solicitor. In November 2002 Ms Todner learned that an American prosecutor, Scott Stein, had applied for a formal indictment against the appellant and telephoned him to register her interest.

"There followed a number of communications during which Mr Stein indicated how much better a deal would be available to the appellant if he went voluntarily to the United States and pleaded guilty than if he contested extradition and denied the charges. Some of these communications were by telephone, some in writing, others at meetings with Mr Ed Gibson, the FBI legal attaché at the American Embassy in London.

"It is sufficient to set out the substance of what was said at the final such meeting on 14 April 2003, attended by Ms Todner and Mr Edmund Lawson QC for the appellant, and by Mr Stein, his superior Mr Hanly, and Mr Gibson as representatives of the US Government. I take this from a recent witness statement made by Mr Lawson dated 6 June 2008. (A broadly similar account taken from statements made by Ms Todner is set out in the Divisional Court's judgment which also contains a detailed account of the earlier communications.)

"Mr Stein 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."



On the face of it, this was a highly attractive offer, especially as Mr McKinnon had by then admitted the unauthorised access and the US claimed to be able to document the damage and deletions.

Had Mr McKinnon taken this plea bargain, and had the US complied with its terms, then if he had voluntarily gone to the US for trial in 2003 he would have been returned to a UK prison in 2004 and probably released in 2004 or 2005.

Instead he chose not to take advantage of the plea bargain and now in June 2010, seven years later, he still faces a sentence if extradited of eight to ten years, though the US have now confirmed that they would not oppose any application by Mr McKinnon to serve part of his sentence back in the UK just because he opposed the extradition request (see para 23 here).

So why did Mr McKinnon decide against the plea bargain?

Was the rejection of the plea bargain an incredible mistake which has led to the case dragging on for another seven years with all its attendant stress and upset?

Was it a strategic and tactical error from which Mr McKinnon and his legal team are still struggling to recover?


Well, the position is actually not clear.

In April 2003, the US had still not applied for extradition, though the indictments had been charged by the New Jersey and East Virginian courts.

It may have been that the US would have not taken it any further.


Moreover, the conduct of the US representatives appears to have been reprehensible.

They insisted the negotiations and any agreement were "off the record" and thereby non-binding.

They were, according to Mr McKinnon's lawyers, rather threatening in the pressure they were putting on Mr McKinnon.

And in one comment at the final meeting, the US legal attaché is alleged to have warned that there was a determination on the part of the New Jersey authorities to see Mr McKinnon "fry".

It must be noted that this was a characterisation of the New Jersey authorities, not a statement of his or the US Embassy's determination.

(For background, see paras 42 and 43 here; and, although the evidence that he said this has not been cross-examined, it appears not to have been denied and was recorded by a solicitor the next day.)


The conduct of the US representatives in the plea bargain negotiations was examined closely by the High Court and the House of Lords, for Mr McKinnon's lawyers raised it as a basis to strike the entire extradition out as an abuse of process: see paras 40 to 60 of the High Court judgment here and the entire House of Lords judgment here.

Indeed, it was only on this abuse of process point which the House of Lords heard the case.

In a lengthy and detailed judgment, the House of Lords looked at the evidence of the conduct of the US representatives, and refused to hold there had been an abuse of process.

(Curiously, the House of Lords regarded the "fry" comment as having so little evidential weight that they don't even refer to it.)

The High Court and the House of Lords may well be wrong to not hold the conduct of the US representative as an abuse of process; but their conduct has been examined judicially and found not to have been sufficiently bad to halt the extradition.


The rejection of the plea bargain was a judgment call.

On one hand, the US representatives acted in a clearly unattractive way and appear to have refused to enter into a binding agreement.

On the other hand, had the plea bargain been adhered to, Mr McKinnon would have been a free man for the last two or three years, and not instead facing extradition and a seven to ten year sentence in summer 2010.


On balance, I think Mr McKinnon and his legal team made the wrong decision.

Mr McKinnon had admitted the unauthorised access and the US authorities claimed to have sufficient documentary evidence to show a prima facie case that the alleged deletions and damage had occurred.

In such circumstances, any well-intentioned desire to "fight on" would be futile, as it has proved.

And had it not been for the diagnosis of Asperger's Syndrome within weeks of the House of Lords decision, a diagnosis which appears not to have been suspected before, there would have been no further possible legal challenge to the extradition.


But it was a difficult decision, and I do not envy - or criticise - the lawyers that had to advise on whether Mr McKinnon should have accepted it.

Lawyers advise; clients decide.

With the benefit of seven years of hindsight, it does seem to me to be a dreadful mistake.

But was rejecting the plea bargain really a mistake at the time?


In the next part, I will look at the Extradition Act 2003.


COMMENTS MODERATION

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

36 comments:

Rightwinggit said...

"repeated hacking activity against 96 US government computers over a thirteen month period"

96 Computers.

Repeatedly.

Over 13 months.

One bloke.

Sounds like a container ship full of sour grapes from the yanks for one bloke making them look really. really silly.

Tom Evans said...

"- the High Court and the House of Lords have stated that similar allegations would on conviction lead to a life sentence under UK law"

Surely you mean liability to a theoretical maximum sentence of life imprisonment?

Claire said...

Reading between the lines I don't think the US knows what Gary knows from looking into their systems. So a logical game plan for them would be to have a long sentence in place that starts in the US. This would give them leave to interrorgate him properly. Then if they decide he knows nothing of real importance they can then play with the sentance and reduce it on "Humanitarian ground" as they do love a bit of PR. If how ever he does know sensitive stuff they have a long sentance in place to keep him gagged.

Suspicious Mind

Evsie said...

I understand all the reasons they won't, but if I were in charge of DoD internet security I'd probably have given him a job, rather than prosecuting him.

The only way to really test systems is to have someone try and break into them, then plug those holes. It's how physical security systems are developed... embarrassment (and yes, rule of law) aside, Mr McKinnon has proven himself to be adept at compromising computer security and firewalls, better used as a tool than a scapegoat.

Dr. Brian Blood said...

JoK, thanks for this.

Like you, I suspect McKinnon did make a poor strategic choice.

Dealing with American lawyers can be a very strange experience for us Brits. The hyper-macho, often culturally crude approach can be very off-putting. However, there is a long and honorable tradition of plea bargaining in the US judicial system.

I would recommend:

http://www.answers.com/topic/plea-bargain

[see under US Supreme Court: plea bargaining]

for background information.

It is possible that the lack of a formal agreement may have had something to do with the point in the process when negotiations were taking place.

At that stage no US court was directly involved; there was no prosecutor, no defence counsel, no appointed judge.

I cannot think that the US authorities were negotiating in bad faith - but clearly there were people back in the US who took all of this very much more personally as is so often the case at the start of a trial and before such negotiations have commenced.

I think McKinnon deluded himself into believing that he could 'fight' off the US approach through the courts putting his faith in a vociferous PR campaign and a series of vague, pointless threats.

Unfortunately, this too has turned out to be a poor strategy.

Iain Coleman said...

The more I read about this case, the more I wonder if Mr McKinnon was simply shit-scared of how he might be treated in the US prison system. It does not, after all, have the highest reputation, even for prisoners who are not suspected of offences related to terrorism.

raincoatoptimism said...

I haven't got the privilege of knowing what took place in the offices of McKinnon's lawyers, around the time the US spoke of the "attractive" voluntary offer, but the decision must have been tactical, and predicated on the belief that a more "attractive" offer was around the corner.

This more "attractive" offer did not come to fruition.

It was soon after that McKinnon's Asperger's was spoken of, as JoK mentions in the body of the entry, it hadn't been mentioned before.

It is at this stage that squint, tickle our chin and wonder why McKinnon didn't take the only "attractive" offer available. Was he "shit-scared" of prison as Iain Coleman, above, makes mention of? Well, I would be. But the decision to turn down the offer is so legally counter-intuitive, particularly with lawyers around, as to beggar belief.

JoK is even too nice here when he says that in hindsight the tactic seems to have blown up, but in 2002-3, when the plea bargain took place, enough was known of the severity of the case. Either the client felt the revelations to follow were enough to get him off even the 37 months offered, or fear stood in the way of accepting sound legal advice.

I'd like to know what McKInnon's lawyers have cited as the reason - and whether we can believe this or not.

Quirk said...

Evsie:

The problem is that he isn't some kind of hacking adept. He's simply a script kiddie.

He used a fairly straightforward system (RemotelyAnywhere) for remotely accessing Windows PCs and looked for boxes which hadn't had the default passwords changed and didn't have firewalls. You don't get much lower-hanging fruit than that; the security was almost non-existent.

The kind of hacker who runs stuff like Nessus and NMap and a full suite of vulnerability identification tools and knocks up their own exploits in Perl or C would be exactly the kind of person to get in to sort out your security settings. However, if people with these kind of skills were hacking a target as sensitive but technologically unsophisticated as the US government departments McKinnon was targeting, they simply would not be caught. No evidence of what they were doing would show up in the carefully edited logs, and if by some mischance they were traced, the layers of proxies and compromised boxes would fairly certainly hide them from discovery; and if even those failed, your really sensible hacker would be connecting from someone else's unsecured wireless network on a second-hand computer.

Generally, I'd suppose people capable of that kind of thing make far too good a living as security consultants to be black-hat hackers, but there's no real way to know if one does go haywire unless they're really quite unsubtle about it.

McKinnon, smoking dope, connecting from his girlfriend's aunt's house, using a fairly standard remote administration tool, isn't in the same league as the ex-members of l0pht or Fyodor or Bruce Schneier. But people don't escape prosecution for burglary or robbery because of simple incompetence, and that someone without highly specialist skills got away with it for so long is a terrible embarrassment to the U.S. authorities.

In any case, breaking into US government computers looking for state secrets isn't a kid's game. It should be obvious that it is likely to have severe consequences. I can't help but feel McKinnon has consistently underestimated how much trouble he's got himself into.

Dan said...

Looking at paras 50 onwards in the appeal decision http://www.bailii.org/ew/cases/EWHC/Admin/2007/762.html

it strikes me that although the plea bargain looks like it would have been a good idea, the Lords say:

50. We have seen the Plea Agreement. It is a curious document to one steeped in English criminal procedure. One of its provisions was as follows:

"The defendant is aware that the defendant's sentence will be imposed in accordance with the Sentencing Guidelines and Policy Statements. The defendant is aware that the court has jurisdiction and authority to impose any sentence within the statutory maximum set for the offense(s) to which the defendant pleads guilty. The defendant is aware that the court has not yet determined a sentence. The defendant is also aware that any estimate of the probable sentencing range under the Sentencing Guidelines that the defendant may have received from the defendant's counsel, the United States, or the Probation Office, is a prediction not a promise, and is not binding on the United States, the Probation Office or the Court. The United States makes no promise or representation concerning what sentence the defendant will receive and the defendant cannot withdraw a guilty plea based upon the actual sentence."

Mr Lawson described the Plea Agreement as a "pig in a poke deal".

I.e. such a plea bargain is not actually binding for the US authorities. So the dilemma for McKinnon was really one of trust.

I don't know if this is just a 100% "standard text" used in all US plea bargains which in practice never gets used, or whether there really is a risk that they would decide that the political fallout from reneging on a plea bargain would be less than the domestic fallout from McKinnon "getting off lightly".

From Lawson's comment, it looks like he did not think trust was the right approach, and if that was a bad call, then he has quite some explaining to do.

Elaine said...

Dear JoK

I am curious as to why my comment at 12.20 last night is still awaiting moderation?

I wanted to know how any lawyer worth his salt would seriously advise a client to accept a plea bargain that wasn't worth the paper it was written on, from a country not known for its human rights...?

Can you answer this? Or will this comment be censored too?

Jack of Kent said...

Elaine - there are no comments awaiting moderation. I also did not receive your comment. Of course, I would have published it had I seen it.

Accordingly, your allegation of censorship is incorrect and misconceived.

Dr. Brian Blood said...

On the question of trust, plea bargaining and the like, might I recommend the wikipedia article about the NatWest Three:

http://en.wikipedia.org/wiki/NatWest_Three

It provides an interesting parallel to the McKinnon case.

Clearly, there would be no profit for the US authorities agreeing even an informal arrangement which they had no intention of following through.

This would undermine later deals and later extradition attempts.

Elaine said...

Thank you for that, JoK.
Blogger did confirm that my comment had been received and was awaiting moderation. So you see why I thought what I did? I will back up all future comments for publication elsewhere, in case there are any further unexplained mishaps :-)

I would still be interested in your answer as to how any competent lawyer should be expected to advise their client to accept a plea bargain that is unguaranteed, comes with a death threat, and is so full of blatant holes that it isn't worth the paper it is written on?

Are you seriously saying you would advise a client to accept such a plea bargain?

Dr. Brian Blood said...

Elaine,

McKinnon's lawyer did advise him to accept the deal.

see http://www.guardian.co.uk/theguardian/2005/jul/09/weekend7.weekend2

That's on the record!

Elaine said...

Hi Brian, thanks for that.

I'm still curious though, why would a *lawyer*, who knows about legal loopholes, advise anyone to accept a plea-bargain that wasn't guaranteed? Don't you think that's curious? Don't you think that would be pretty bad advice?

JoK is very keen (rightly) on not taking things on faith. So why should anyone expect Gary to do so? And what grounds are there to assert that had he accepted the plea bargain with no guarantee, he would be back home by now?

This is what I don't get.

Dr. Brian Blood said...

Elaine,

The key to understanding plea bargaining (which is a commonplace in the US legal system) is to see how it works in the US. The whole point of plea bargaining is to offset court time and general costs by offering an agreed discount for a guilty plea.

If parties continually broke their deals plea bargaining would become unsustainable and the US courts would seize up.

The funny thing is that your hankering for certainty in plea bargaining misses the point that in litigation in general is replete with uncertainty. Both sides may enter the court room believing they will win, but one is most often going to be disappointed.

Elaine said...

Hi BB

Notwithstanding how things may or may not work in America, the plea bargain was offered to a UK citizen, and I had understood that plea bargains were viewed somewhat with distate in this country.

Regardless of whether US plea bargains are routinely honoured or not, my question still remains unanswered: is it good legal practice to advise someone to accept a deal that isn't worth the paper it is written on?

I am not sure why you misread me as 'hankering for certainty' in a clearly probabilitic domain, when all I am asking is a simple question about good legal practice. In the UK.

The question of the plea bargain is of course, somewhat of a red-herring, since it does not speak to the facts concerning the quality of the evidence for the extradition offences, which is and should be the main point on which the rights and wrongs of the extradition rests.

Do we think that extradition on unsubstatiated or even (as in the case of the 'damage') disproved allegations is really in the interests of justice, or the public interest?

Dr. Brian Blood said...

The plea bargain was offered to a UK citizen who was to face the US courts.

The use of plea bargaining is normal in the US and as I have mentioned earlier it has been reviewed by the US Supreme Court.

I am not sure that in the UK there was distaste - more an observation that things are done rather differently here.

For a summary of its use world-wide see here:

http://en.wikipedia.org/wiki/Plea_bargain

To understand how it works in the US you might refer to:

http://www.enotes.com/everyday-law-encyclopedia/plea-bargaining

which makes the following point:

"[in the US] more than 90 percent of criminal convictions come from negotiated pleas"

McKinnon's lawyer recommended he take the deal on offer.

I can't speak for the lawyer but only for the process which is embedded in US legal procedure and which did offer McKinnon a relatively generous way out of some potentially very nasty difficulties.

The 'quality' of the evidence required to have McKinnon extradited to the US seems not to have troubled a great number of judges (including those of the Supreme Court and the European Court of Human Rights).

Since none of us is in possession of this evidence we are hardly able to judge its quality, appropriateness, veracity, etc.

As McKinnon has already proposed or may be thinking of pleading guilty to offences in the UK that are very similar to those he would have pleaded to in the US under the proposed 'bargain', I feel that 'questioning the evidence' is also something of a red herring.

The real questions are these:

i. does McKinnon fully accept that he has been engaged in criminal activity?

ii. does he accept that having 'been caught' he will have to pay the penalty for being so engaged

iii. does he appreciate that having looked one 'gift horse in the mouth' he is unlikely to be meeting another one soon

Lloyd Jenkins said...

@Elaine

A couple of queries:
1) Why is the nature of plea-bargaining in the UK relevant here? The offer was only related to the US jurisdiction, so surely it is the US attitudes to plea-bargaining that are important?
2) You query the value of the evidence against McKinnon in the context of the plea-bargain/extradition: why? It's the role of the trial to decide the facts. Unless you've seen all of the evidence and heard the prosecutor's interpretation of it you can't meaningfully make judgments on the state of proof, and so this part of proceedings can't really evaluate evidence.

Stephen said...

Accepting a non binding agreement sounds like it could have left them in a pretty sticky situation.

Elaine said...

BB - plea-bargaining was not viewed with distaste here? Really? So plea bargaining wasn't banned by government guidelines in 2000? I must have got that wrong.

In any case, the 'generosity' of the plea-bargain depends somewhat on whether you accept there is any basis for the extradition allegations - L J Burnton did not. It also makes you wonder, if there *was* any truth to the (very serious) allegations, why such an amazingly 'generous' plea-bargain was offered?

In any case, I was under the impression that refusing a plea-bargain was not a crime, and certainly not grounds for extradition.

That the quality of the evidence nevertheless did not lead the extradition proceedings to fail is indeed very disturbing, as I'm sure you would appreciate if you consulted either the transcripts, or the CPS disclosure or the forensic IT report, and not just the (somewhat misleading) judgements referred to thus far.

I think wrt 'the real' questions, it is a shame you seem to be failing to make the distinction between an extradition offence, and a non-extraditable Summary Offence. Wrt to the latter, the answers to your questions i and ii are yes. Question iii in that context is irrelevant. Wrt the extradition allegations, the answer to all three questions is no. Note that when he tried to plead guilty to a L2 offence, this was refused on grounds that the evidence was such that to prosecute him for it would be 'an embarrassment to the prosecution'.

Lloyd Jenkins - the nature of the plea-bargaining is relevant because the extradition seeks to take him from one jurisdiction to another. And the extradition proceedings took place within the UK. And because the plea-bargain came with coercion, namely a death-threat. And I thought that extraditing people to somewhere where they face a death penalty is prohibited under ECHR.

With regard to querying the quality of the evidence, I am simply observing that the CPS who evaluated the evidence dismissed it as hearsay/no evidence, and that the forensic IT expert who also considered the evidence concluded that no damage was done by Gary McKinnon. All this was acknowledged by LJB.

I refer you to Review Note Three, reported here:
http://bit.ly/l3HUm

and Prof. Sommer's report,here:
http://bit.ly/dqogu1

You may also wish to refer to the transcript of High Court July 09 where these were presented, and where you can also read LJ Burnton's conclusions on the implications of the quality of the evidence.

Dr. Brian Blood said...

On plea bargaining in the UK you are wrong - it is not banned, although its use is more restricted than in the US.

Anyway, IMHO, this is rather off the point since, when one is negotiating over a prospective prosecution in US courts, it is the conventions there that matter.

You make frequent reference to a transcript of a High Court hearing of July 2009. Please could you give us an URL as I have been unable to trace one?

Your ref. http://bit.ly/l3HUm is an piece of journalism in computerweekly.com and not the CPS report itself, which I have been unable to trace.

As far as I can tell, the CPS prepared a review of evidence presented by the US authorities that might be used in support of a prosecution in the UK. This was not a review of whether or not the evidence supported a request for extradition.

The distinction is important.

In ref. http://bit.ly/dqogu1, which is another piece of journalism, Professor Sommer's opinion is presented together with that of a number of other 'experts' who take a contrary position. Why have you never mentioned those?

Oh, and as someone who had an American mother and has an American-born son-in-law, I might help you with the 'crime-related' meaning, in the US, of the verb 'to fry'.

Although it certainly can be used as a reference to the death penalty (in particular the use of the electric chair), you might like to compare its use here:

"They're going to fry her for everything," Osmanovic told his girlfriend.

http://www.fox30jax.com/mostpopular/story/Osmanovic-Theyre-going-to-fry-her/JB8-0dmGH0mhEPRPqfyz2g.cspx

In this case 'to fry' means 'to turn on the heat', 'to grill her', or something similar and is not a reference to the death penalty.

The criminal activity alleged of McKinnon does not carry the death penalty and to read that comment as a 'death threat' seems perverse, at least to me.

SimonC said...

Elaine, I'm having trouble squaring your version of Burnton's judgment with the actual thing. It appears that you are referring to paragraph 26. Here he is simply reviewing the facts relevant to the DPP's decision not to prosecute in the UK. With reference to that decision, Burnton says:

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 key phrase there is surely "the evidence available to the CPS". The CPS were not dismissing the entirety of the evidence (still less Burnton, who is simply reporting their decision); it represents their assessment of the evidence available in the UK at the time. As they considered they did not have sufficient evidence to make the same level of charges as the American authorities, and McKinnon was only admitting lesser offences, they decided that the UK was not the proper place to prosecute. That, as far as I can see, is the entire scope of this paragraph.

As for the assessment of damage, I can find no reference whatsoever to Prof. Sommer or his opinion in Burnton's ruling. Can you point out the paragraph in which he mentions it?

Lloyd Jenkins said...

Elaine:

As others have pointed out, the facts simply don't agree with you. Your allegation that there was a "death threat"* confuses colourful language with actual danger. You make this clear when you mention the ECHR prohibition on extradition to countries where there will be a death penalty. Do you honestly believe that there is any chance of Gary McKinnon being executed when the offences he is charged with are not capital ones?

I reiterate that this is not a trial: the quality of the evidence cannot be decided without the voice of the prosecutor being heard in open court. If there is insufficient evidence then he will face the same chance of wrongful conviction that he would in a UK trial.


*I presume to refer to the 'want to see him fry' comment.

Stephen said...

The difference between a death threat and attempted murder/murder is actual danger. No death threat contains actual danger in the words - the letter in the post saying "I'm going to kill you" isn't dangerous but a letter bomb is. That's irrelevant, we're talking about threats. The idea is that later on, if you don't do what I'm saying, actual danger might appear.

The thing that makes it a threat is that it's threatening and "New Jersey wants to see you fry for this" is an incredibly threatening thing to say. The idea that it's somehow not threatening because they weren't really going to stick him in an electric chair is facile. It's like saying that you shouldn't be threatened when a bully threatens to punch you on the nose if he doesn't do it, because, hey, there wasn't any "actual danger".

To put it in context - this was said when the US guy was trying to make him plead guilty to crimes and go to jail. It's either meant to coerce him to plead guilty - plead guilty or we'll see you fry- so it's a coercive threat, or the guy just says for something to say and so appears to be a psycho.

Dr. Brian Blood said...

Might I be permitted to throw some more useful resources into the 'pot'?

1. Extradition To and From the United States: Overview of the Law and Recent Treaties

ref: http://www.fas.org/sgp/crs/misc/98-958.pdf

This an excellent summary of the history of US extradition treaties

2. Making a pact with the devil
by Clare Dyer

This surveys plea bargaining in the UK legal system

ref: http://www.guardian.co.uk/world/2000/oct/30/law.claredyer

3. Plea Bargaining

A summary of the process of plea bargaining as conducted in the US

ref: http://www.enotes.com/everyday-law-encyclopedia/plea-bargaining

I hope these are helpful.

Lloyd Jenkins said...

Stephen

I'd posit that the phrase 'see you fry' could have at least two meanings: firstly the NJ authorities really want to bring about McKinnon's death; secondly the NJ authorities want to make an example of McKinnon by heavy punishment. The most threatening meaning is the second, as if we adopt the first the threat is empty. The NJ authorities are legally barred from 'frying' McKinnon and so all the first meaning does is pass irrelevant information. To amend your metaphor, it's like being threatened when a bully who can't use his arms says he'll punch you.

The second meaning is threatening, but that threat isn't relevant to the extradition process. The threat of heavier punishment if a plea bargain is rejected is at the centre of plea-bargaining and punishing McKinnon to deter future crime (or to right the wrong he committed) is a legitimate wish for the NJ authorities.

I hope you'll forgive my presumption that threats are somehow related to danger, as a definition that reads "The thing that makes it a threat is that it's threatening" seems to question-beg.

Dr. Brian Blood said...

and, further to Lloyd Jenkins comment above, Stephen's contention might not be particularly helpful to JoK's other concern - the Paul Chamber's appeal?

Stephen said...

Yeah, the unstated major premise is that I've not defined what threatening means - I only say that things that are threats are statements of a threatening character. I would say that threats are threatening is more a example of "it really is that simple".

It's a implicit distinction in English because we have a word for things that are dangerous, "dangers", and things that are threatening, "threats".

Personally I would use a definition for a threat something like a threat is "where you think someone is going to harm you" whereas a danger is "something that can harm you". It's subtle and I do understand why you've presupposed it but I think it would be wrong to say that threats must be able to harm you to be threatening. That's reading an extra step into it.

I was actually thinking of Paul Chambers when I made the distinction. The problem with the Paul Chambers case isn't that "I'm going to blow the airport sky high" can't be threatening language, it's that he didn't mean to be threatening and therefore there isn't the necessary element of mes rea to convict him of the offence.

The Chambers case isn't a special Hail Mary pass that requires rewriting the dictionary on dangers and threats, it's just a standard criminal charge where it's not strict liability and you're supposed to take mens rea into account.

Dr. Brian Blood said...

Stephen,

If only language really were that simple ....

The problem is, as it always is, context.

The plea bargaining took place between two sets of lawyers (or legal officials) and McKinnon.

We need to know what experience McKinnon's lawyers had of the US plea bargaining process.

Did they understand what the US team could 'promise' as opposed only to 'indicate'?

My impression is that they (or their client) did not appreciate that the US team could not (not would not) give a binding promise at this stage.

In the Guardian article, McKinnon talks of a secret court, but the plea bargain has to be placed before a judge in open court to ensure that the defendant understands what he is agreeing to. In addition, the court has to assure itself that the bargain is both appropriate and reasonable; otherwise it has the power to modify the agreement.

We need also to understand the effect at the time of the words complained of on McKinnon and separately on his lawyers.

His lawyers appear not to have taken the comments particularly seriously because, at the time, they advised that he accept the deal. His lawyers would have known that McKinnon was not facing a capital charge and so they would have read the comment only as so much bluster.

But, apparently ever fearful of bars of soap and US prison showers, McKinnon turned the deal down.

So one has to ask was the 'alleged' threat made before his lawyers recommended the deal (to make sure McKinnon understood the potential risks of not entering into a deal), before or after McKinnon made a number of threats against the US authorities (bullying contra bullying), or after his rejection of the deal (more a sign of frustration than a meaningful threat)?

When McKinnon's leading counsel complained about 'abuse of process' was this actually counsel's opinion of the way the negotiations had been handled or representations on behalf of his client still desperate not to be extradited?

Of course, I wasn't there and I suppose neither were any of the rest of us.

But intelligent experienced lawyers are not fazed by 'bullying tactics' which they should be able to take in their stride.

Stephen said...

I don't see why the language isn't that simple. It's tautological - threats are threatening, dangers are dangerous. Presumably dangerous threats are both dangerous and threatening.

Chambers shows that you shouldn't criminalise people based on how other people take their words but why don't 'bullying tactics' count as threats as far as the meaning of the word is concerned?

Lloyd Jenkins said...

Stephen:

I'm not sure about your analysis: if a threat is 'where you think someone will harm you', then surely the attorney's statement isn't a threat, as McKinnon had no legitimate reason to think that he'd be harmed.

The alternative -that no legitimate reason is required- is a pretty difficult one, as there's no good reason (that I can see) to give legal weight to behaviour that McKinnon wrongly interprets as a threat.

Dr. Brian Blood said...

I note with some regret that Edmund Lawson who was McKinnon's QC died following a stroke on March 2009.

http://en.wikipedia.org/wiki/Edmund_Lawson

Dr. Brian Blood said...

For those who have not read the 2007 High Court summary of the 'plea bargain' negotiations I set them out here.

13 Nov 2002: Ms Todner (Ms T), Mckinnon's solicitor, has first telephone conversation with Mr. Scott Stein (based in US: representing US prosecution authorities) - deal first mentioned including reduced sentence if McKinnon surrenders voluntarily.

19 December 2002: Scott Stein (SS) reitterates deal to Ms T and offers repatriation to serve bulk of sentence.

13 Jan. 2003: Negotiations move to US embassy - Ms T's associate Mr. Newport (Mr. N) continues negotiations with Ed Gibson (EG), legal attaché at Embassy

7 Apr. 2003: Ms T and Mr N meet EG at US Embassy to discuss possibility of McKinnon facing charges in UK as an alternative to extradition.

It was at this 7 Apr. 2003 that the 'alleged' threat was made.

14 Apr. 2003: there was a further meeting during which the original agreement was reconfirmed by the US side.

What can one read into all of this?

The 'alleged' threat came late in the negotiations at a time when McKinnon was still continuing to resist voluntarily going to the US.

It played no part in setting out the original deal, and the deal on offer did not change in the meeting following that at which it was 'allegedly' made; I read it as signifying frustration on the part of the US authorities who were spending a lot of time and money in negotiations that were going nowhere.

From the US side, I would characterise it as a 'smell the coffee' moment!

Dr. Brian Blood said...

Stephen,

Could you explain an empty threat to me?

Don Trustem said...

All of this semantic word picking is a total irrelevant nonsense.

The text of the 2003 extradition treaty dictates that UK judges have to treat unsubstantiated 'suspicions' as though they were uncontestable 'facts' that simple statement completely undermines UK justice, impartiality and any common sense and is reason enough for the treaty to be ripped up and renegotiated and for all extraditees not to be sent. A treaty has to be balanced or it is simply not a treaty but a demand. In this particular case the evidential contestability is clearly in only one direction. The UK has to provide contestable evidence the US does not.

In McKinnon's case America caused the delay by waiting over over three years until the treaty was signed to clearly give themselves a legal advantage achieved in this case by issuing a superceding indictment which merely removed several American universities which had publicly denied the alleged damage (McKinnon was such a danger to American systems that they left him with unrestricted internet access for over three years?) Had McKinnon been tried in the UK in 2002 as Caffrey was, America would have had to prove the damage in a UK court. In 2002 McKinnons offence was not extraditable without evidence of damage and according to the CPS there is no such evidence.

The Judge in the second hearing described the plea deal as an 'Anathema to British Justice'

Had Edmund Lawson not suddenly become fatally ill, The house of Lords Judgement would have been diferent I am sure. The replacement QC, who was keen to offer his services pro bono to McKinnon's team, at one point, when asked by one of the Lords re. the plea bargain, 'were the promises of lengthy sentences and denial of repatriation by the US, threats or incentives?' 'incentives, m'lord' he replied, a view not shared by any of Mckinnon's team as I understand.
The QC in question was made a lord soon after.

The Judge in the last hearing, Stanley Burnton, described the house of Lord's aviation and maritime judgement as, and I quote "and pigs might fly" he also described the lack of valid evidence as reported by CPS lawyer Russel Tyner as "an embarrassment to the prosecution" I was present in the court. I'm surprised you were'nt, or is your idea of jumping on-board at the last possible minute, an attempt to influence the outcome? or perhaps to glean notoriety on the back of McKinnon's misfortune.

The Fact that more than 90% of American cases do not go to trial by reason of plea bargains, is a damning indictment of US Justice and not a commendation of the plea system. You cannot have a viable legal system based on intimidation and threats it is no less than milder form of psychological waterboarding and as you know evidence, garnered by torture and threat is not admissable (or at least that used to be the case).

Evidence and presumed innocence used to be the mainstay of British Justice but obviously no longer since a politician can sign a single treaty which removes the need for such inconvenient details and, no doubt, they will dispense with inconvenient Jury verdicts also. A judge is not a judge if he can't judge evidence, he becomes a big rubberstamp with a wig on.

The Judges have been emasculated by the extradition treaty.

The Extradition Treaty is political and nothing to do with law or justice.