A Skeptic Looks at the McKinnon Case: Part Five

This is the fifth 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; the third part dealt with the plea bargain which Mr McKinnon rejected in April 2003; and the fourth part looked at the relevance in this particular case of the allegedly unfair extradition treaty.

This part covers the impact of the diagnosis of Asperger's Syndrome during the course of the litigation.

I hope to post the summary of my survey tomorrow, where I will also explain why I personally oppose the extradition of Mr McKinnon.


The High Court judgment of April 2007 would normally have exhausted the remedies available to Mr McKinnon.

However, his lawyers were able to persuade the House of Lords to hear an appeal just on the narrow point that the approach to plea bargaining by US representatives had constituted an abuse of process.

On 30 July 2008 the House of Lords unanimously rejected that appeal.

So, as of August 2008, the outlook was bleak: extradition seemed inevitable.


Then something significant happened.


For appreciating the significance of this event, one must go back to the original judgment of the High Court (at para 63 here, emphasis added):

"We tend to the view that, in reality, the only situation in which a free-standing human rights case may lie against the Secretary of State pursuant to section 6 of the Human Rights Act is where statutory appeals against the decisions of the District Judge and the Secretary of State have been exhausted but something arises between finality in those proceedings and actual removal to the requesting state – for example, a supervening illness which impacts on the subject's ability to travel to or to face trial in the requesting state. At that stage a challenge to a refusal of the Secretary of State to reconsider extradition on human rights grounds may arise (subject to the high threshold), albeit probably in judicial review proceedings rather than by way of statutory appeal."


And what had occurred - after the unexpected granting of a hearing before the House of Lords - was not a supervening illness, but the diagnosis of an existing illness: at first it was Autism Spectrum Disorder (see paras 15 to 17 here) and then, within that spectrum, Asperger's Syndrome (see paras 18 and 19 here.)

There is no reason to doubt this diagnosis, and such late diagnoses are not uncommon.

This diagnosis allowed Mr McKinnon a fresh basis to challenge the extradition request, and the Secretary of State was asked to make a new decision.


And again the decision went against Mr McKinnon.

Permission was granted for a judicial review of this decision in January 2009, and a full judicial review hearing was held by the High Court in July 2009, where Mr McKinnon failed to show that the diagnosis of Asperger's Syndrome was such an intervening factor that it excused him from an extradition which would otherwise take place.

Interestingly, the High Court regarded the diagnosis of Asperger's Syndrome not as something which excused Mr McKinnon from extradition, but as something which the extradition process needed to accommodate.


And here, the High Court had regard to information provided by the US government (which I have not seen quoted anywhere other than in the law reports).

The UK government had actually written to the US seeking assurances as to how Mr McKinnon's condition would be dealt with should he be extradited.

Paragraph 28 of the judgment reads in full:

"In a letter dated 23 January 2009, the Home Office sought assurances from the US authorities in relation to his medical care and treatment on extradition. The US Department of Justice replied by a letter dated 26 February 2009 from Mary Ellen Warlow, a Director of the Criminal Division. The assurances given in that letter are important, and I therefore set them out:

(1) the USMS would send two Deputy U.S. Marshals to the United Kingdom to pick up Mr. McKinnon and transport him back to the United States;

(2) the Deputy U.S. Marshals would (a) search Mr. McKinnon upon his surrender and seize any items Mr. McKinnon could use to hurt himself or others, and (b) monitor Mr. McKinnon at all times to ensure that he did not attempt to injure himself or others;

(3) for security reasons, the USMS would not permit an outside medical professional to accompany Mr. McKinnon during his transport, but would provide a Deputy U.S. Marshal who was qualified as an emergency medical technician to do so, or alternatively, would provide a psychiatric professional if U.K. authorities agreed to bear the cost;

(4) upon arrival in the United States, Mr. McKinnon would be transported to the Alexandria Adult Detention Center ("AADC"), a facility which has two psychiatrists, a psychologist, four licensed professional counsellors, and five licensed social workers on staff, where Mr. McKinnon would undergo a medical and mental-health examination;

(5) if the medical and mental health examination indicated that Mr. McKinnon suffered from mental health issues, the AADC, which has a mental health staff on duty twenty-four hours a day, seven days a week, would provide Mr. McKinnon with appropriate care and treatment (both pharmacological and therapeutic), and if the examination indicated that he posed a danger to himself or others, the AADC would segregate him from other inmates;

(6) if U.K. authorities would provide U.S. authorities with Mr. McKinnon's medical reports, the U.S. authorities will provide those medial reports to the AADC, the U.S. Pretrial Service Office and Mr. McKinnon's court-appointed counsel. Naturally, Mr. McKinnon's counsel would be alert to the need to make any appropriate applications to the court arising out of any medical issues, including fitness to stand trial;

(7) if Mr. McKinnon were to be found guilty of one or more offenses, the U.S. Probation Office would (a) prepare a pre-sentence report setting forth, among other things, information about Mr. McKinnon, including his family history, his prior criminal record or lack thereof, and his mental and physical health, and (b) provide the court with copies of Mr. McKinnon's medical reports and a recommendation regarding the appropriate sentence – based on advisory U.S. Sentencing Guidelines;

(8) if Mr. McKinnon were sentenced to a term of incarceration, he would be transferred to the BOP which would, in turn, review Mr. McKinnon's medical records and conduct a preliminary medical screening to determine whether he had any medical issues, including mental health issues, which needed to be addressed;

(9) The BOP, which has at least one physician and psychologist on staff at all of its facilities, would make arrangements for qualified medical practitioners, including a psychiatrist or other specialist, if necessary to provide Mr. McKinnon with appropriate medical care and treatment, including counseling and medication, for any medical and/or mental health conditions, including depression, anxiety and other conditions, like Asperger's Syndrome;

(10) If Mr. McKinnon were to arrive at a BOP facility in, or subsequently suffer from, acute psychiatric distress, the BOP would provide him with immediate access to a psychiatrist and provide an appropriate level of supervision. If the BOP facility was unable to provide Mr. McKinnon with appropriate care and supervision, it would transfer him to another facility which would provide such care and supervision."



This was supported by further evidence from the US government as to how Mr McKinnon would be treated in view of his diagnosed condition.

Paragraph 83 of the judgment reads in full:

"The evidence of Phillip S. Wise, a retired Assistant Director of the Federal Bureau of Prisons, in a statement dated 9 April 2009 filed on behalf of the Claimant, is also significant. He points out that there is no officially sanctioned specific protocol for the treatment of AS. He noted that neither Dr Berney nor Prof Baron-Cohen provided a treatment plan or outline of services that are now required by the Claimant or would be required by him when detained in the USA, and the somewhat variable nature of the evidence of the risks said to be engendered. Mr Wise gives considerable detail of the assistance that would be available. He said:

'The mental health professionals on staff in other BOP facilities are generally doctoral level psychologists and/or treatment specialists associated with specific treatment programs. In addition, most facilities have access to psychiatrists through contract with local practitioners who are willing to treat inmates. Inmates are initially screened by medical staff within 24 hours of arrival at a facility, and if mental illness is apparent, are referred to psychology services. Within two weeks, new arrivals are screened by a member of the psychology services department. Bureau of Prisons policy requires that:

''Psychology Services staff are responsible for the assessment and treatment of mentally ill inmates. This responsibility is shared with other trained mental health staff, such as a psychiatrist, if one is available. A treatment plan should be formulated and executed for all inmates diagnosed with significant mental disturbance.''
(Bureau of Prisons Program Statement 5310.12 Psychology Services Manual, March 7, 1995)'

Referring to the treatment for the Claimant in prison, he said:

'Should Mr. McKinnon be committed to a Bureau of Prisons facility, he would arrive with the diagnosis of Asperger's Syndrome, which would be noted both at intake screening by medical staff and at screening by psychology staff within the first two weeks of incarceration. Though some initial assessment of his deficits is likely through document review and interview, it is unlikely that the full assessment as described by the Yale guidelines, including neuropsychological assessment and assessment by a communications special would be undertaken. A treatment plan providing for crisis intervention, brief counseling, and supportive assistance with practical behavioural issues as they arise through the course of conferment is likely. Such intervention would be geared primarily to assisting with adaptation to the correctional environment specifically relating to institution rules, disruptive or potentially disruptive behaviour, and functioning within the prison culture, particularly communication issues within the prison setting. It may well be determined that Mr. McKinnon will need to learn a completely different set of communication strategies for the prison setting compared with the normal social setting.'


Whatever the weight which should be placed on this evidence, it is certainly counter to the impression one would get from reading about this case in the media.


The detail contained in the US evidence set out in paragraphs 28 and 83 of the judgment definitely impressed the High Court charged with judicially reviewing whether the diagnosed condition was such that it excused Mr McKinnon form extradition or whether it went to how the condition was to be dealt with in the event of his extradition.

The High Court also appear to have regard to the US statement that they would not in principle oppose any application by Mr McKinnon to serve his sentence in a UK prison (see para 22 here).


Once the High Court was satisfied by this US evidence that the diagnosis of Mr McKinnon's condition could actually be dealt with by the US authorities then there was no basis to quash the Secretary of State's decision.

Permission for a further appeal was then refused in six brief paragraphs.


On the basis of the judgments, it has never been the case of Mr McKinnon that the diagnosis of his condition excused him criminal liability in the first place; only that it excused him from extradition.

And the answer to the question as to whether the condition should excuse him so seems to rest on what assessment one makes of paragraphs 28 and 83 of the judicial review judgment .


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