A Skeptic Looks at the McKinnon Case: Part Four

This is the fourth 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, the second part examined the CPS decision not to prosecute in the UK and the relevance of the UFO issue to this litigation, and the third part dealt with the plea bargain which Mr McKinnon rejected in April 2003.

This part looks at the alleged "unfair" extradition arrangements between the UK and US and their relevance to this particular case.


A central theme of the campaign against the extradition of Mr McKinnon is the alleged unfairness of the extradition arrangements between the UK and US.

It is one of the things "everyone knows" about the case.

So this blogpost will now set out the relevance of the alleged unfairness of the extradition arrangements to the particular case of Mr McKinnon.


In my view, there isn't any relevance.


This is because even under the extradition regime that existed before 1 January 2004, which would have required the US to show a prime facie case, the US would be able to do so.

An attempt to contend otherwise was made by Mr McKinnon's legal team in the first High Court hearing.

The judge dealt with it in a single paragraph (see para 39 here, which I break up below for readibilty):

Mr Lawson [Mr McKinnon's barrister] submits that the US Government engaged in deliberate delay in order to obtain the advantage of the new extradition arrangements applicable to category 2 territories under the 2003 Act and that this amounted to an abuse of process. Whatever may have been the historical position, we accept that a District Judge conducting an extradition hearing under the 2003 Act has jurisdiction to hold that the requesting state is abusing the process of the court. The history was analysed and the principle demonstrated by Laws LJ in Bermingham, paragraphs 91 to 97.

"However, we do not consider that deliberate, abusive delay is made out in the present case.

"Indeed, we do not accept that the delay was deliberate at all.

"We have described how at first the US authorities were formulating an application under the [previous] 1989 Act until the new procedures were drawn to their attention. When pressed about the alleged advantage sought to be gained by the US authorities, Mr Lawson suggested that they had been waiting for a procedure in which it was no longer necessary to establish a prima facie case where the requesting state has the appropriate designation.

"This suggestion does not bear examination.

"On any basis, there is a prima facie case against Mr McKinnon and no one could sensibly have thought otherwise.

"When further pressed, Mr Lawson resorted to the suggestion that, under the previous legislation, technical errors and omissions were more likely to accrue to the benefit of the person whose extradition was sought, the implication being that the US authorities were anxious to avoid the risk of being foiled by such technical errors and omissions. This virtually amounts to a submission that Mr McKinnon has been deprived of the opportunity to escape extradition on a hypothetical technicality. It is a most unattractive argument. We unhesitatingly reject it."


Why did the High Court form the view that - on any basis - there was a prima facie case against Mr McKinnon and that no one could sensibly have thought otherwise?

Well, one only has to look at the evidence which the US had already collected (see para 7 here):

(1) Mr McKinnon's computers contained administrative account names and passwords for 39 of the 97 compromised computers hacked into
(2) Of the 44 or so versions of "remotely anywhere" available on the internet, one of the many versions found on his computer was found on 71 of the 97 compromised computers
(3) 72 of the computers had "remotely anywhere" installed in a directory location selected uniquely by him
(4) A document found on his computer recommended the renaming of the "remotely anywhere" software to "ra.exe" and the "remotely anywhere" files found on 19 Army computers had been so renamed
(5) A further document found on his computer entitled "themethod.wri" contained detailed instructions as to how to undertake the above conduct
(6) His computer was not the subject of remote access from any other computers.


Furthermore, Mr McKinnon had admitted the unauthorised access in interviews soon after his arrest (see para 8 here).

(Mr McKinnon has, of course, since confirmed that he would plead guilty to the unauthorised access offence under the Computer Misuse Act (see para 25 here) and his lawyers have indicated that he would be prepared to plead guilty to the causing damage offence (see para 32 here).)


So even on the standard of evidence which was required from the US before 1 January 2004, it is clear that there is at least a prima facie case for Mr McKinnon to answer.

The High Court were correct to state this back in April 2007 and, perhaps significantly, Mr McKinnon's legal team have not sought to re-argue the point since it was dismissed in that single judicial paragraph.

In summary, even if the extradition arrangements were unfair, in that the US had only to show reasonable suspicion and not a prima facie case, there can be no serious doubt that they could have achieved that higher standard.


Which brings us to an interesting footnote about the "unfair" extradition arrangements.

They are actually no longer unfair, at least in the way complained of by the so-called "NatWest Three" fraudsters.

You may recall the media campaign against the extradition of the "NatWest Three" fraudsters (which has been brilliantly analysed by Nick Davies in Flat Earth News.

One central part of that campaign - and indeed their legal case - was that there was an unfairness in the extradition arrangements between the US and UK.

And that was undoubtedly true, and it was a matter of genuine concern.

For when the Extradition Act 2003 took effect on 1 January 2004, the United States had been designated as one (of many) countries which only had to show reasonable information or evidence to apply for an extradition.

(See para 2 of the Order for the full list, where you can see the US is far from unique from having this status.)

This caused a significant disparity: under the 1972 Treaty then in force (no link available, but see paras 20 to 22 here), the UK was still required to show evidence sufficient to bring a prosecution (not just an arrest) to apply for an extradition of a US citizen.

This disparity was effectively caused by the US having not ratified the Extradition Treaty 2003, even though the UK had given effect to the treaty by designating the US as a category 2 country in time for when the Extradition Act did take effect on 1 January 2004.

The Extradition Treaty 2003 provided for both the UK and US to bring their respective evidential standards for extradition down to that required for an arrest warrant, not a prosecution: in the US this standard is called "probable cause".

It was the disparity caused by the US not ratifying the treaty when the UK had put it into effect which fed and informed the (in my view, correctly felt) concern about the extradition of the "NatWest Three" fraudsters.

And it was this disparity which has carried forward to the concern felt by many supporters of the campaign against Mr McKinnon's extradition.


So it is interesting to note that on 3 September 2006 the US Senate finally ratified the Extradition Treaty 2003 and the instruments of ratification were exchanged on 26 April 2007.



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