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.
- 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.
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