Shadow home secretary says he hopes MPs will send a message to the government that hacker should be tried in UK not US
The Conservatives will today use a Commons vote to signal their opposition to the proposal to extradite Gary McKinnon to the US to face trial for hacking into American military computers.
Chris Grayling, the shadow home secretary, said he hoped MPs would “send a message” to the government that McKinnon, who has Asperger’s syndrome, ought to be put on trial in the UK and not in the US, where he faces a sentence of up to 60 years.
McKinnon is still using the courts to try to block his extradition and MPs will not vote directly on his case. But the Tories have tabled a motion expressing “very great concern” about the way the extradition system is working and calling for the Extradition Act 2003 to be reformed “at the earliest opportunity”.
The Tories are hoping that the Liberal Democrats and some Labour MPs will support them when the Commons votes on the motion this afternoon.
Ministers claim that the act, which affects extradition between the UK and the US, has benefited both countries and that the government does not have the power to stop McKinnon being sent to face trial in the US.
McKinnon, who is being backed by a high-profile Daily Mail campaign, yesterday asked the high court to overturn the refusal of Keir Starmer, the director of public prosecutions, to put him on trial in the UK on charges of computer misuse. If there were no UK prosecution, McKinnon would inevitably be extradited to stand trial in the US, the judges heard.
The court reserved judgment and said it hoped to give a decision in writing by the end of July.
McKinnon has admitted computer hacking and leaving a message in US military systems saying “I will continue to disrupt”, but his lawyers said his intention was only to cause “temporary impairment”, not lasting damage to the system.
They argue that his extradition would lead to “disastrous consequences”, including possible psychosis and suicide, because of his medical condition, which is on the autistic spectrum.
This morning Grayling told BBC Radio 4′s Today programme: “People on the autistic spectrum find it very difficult to deal with a big change in surroundings. To extradite somebody in that position to the US to a strange environment is undoubtedly going to cause health issues for Gary McKinnon. In the past, where there have been similar cases, we have seen trials take place in the UK.
“There is no doubt that an offence has been committed; Gary McKinnon has admitted that. But why on earth is this trial not taking place in the UK?
“I hope the House of Commons will send a message to the government that really this is not what the extradition system is supposed to do. These new rules were set up for very serious offences, for terror offences. I don’t believe parliament ever intended them to be used to extradite somebody with autism issues to face a charge like this.
“There are some suggestions that the home secretary has more powers to intervene than have so far been used.”
But the Home Office dismissed this claim. It said that the home secretary did not have the power to block McKinnon’s extradition.
“The case of Gary McKinnon remains before the courts. As such it would not be appropriate for us to comment on it in detail, except to say that this case has been subjected to the closest attention and to the greatest possible procedural fairness. The home secretary [then Jacqui Smith] gave very careful consideration before deciding in July 2006 to order extradition,” the statement said.
“It is important to be clear that, under the terms of the Extradition Act 2003, the home secretary must order extradition unless certain limited conditions are met. The courts have already said that those conditions are not met in Mr McKinnon’s case; and his attempts to defeat the US request have since been dismissed by the high court, the House of Lords and the European court of human rights.
“The information that must be provided by both the United States and the United Kingdom is effectively the same. The United Kingdom must demonstrate ‘probable cause’ to the United States courts, while the United States must demonstrate ‘reasonable suspicion’ to ours.
“Extradition is a key crime-fighting measure in our increasingly globalised world and, within what the law permits, we give maximum assistance to all of our extradition partners.”
Extradition without justice
Gary McKinnon’s fight to face trial in the UK casts a stark light on our unfair international extradition agreements
Gary McKinnon’s fight to be prosecuted in the UK casts a stark light on our extradition arrangements with America. US prosecutors are threatening him with up to 70 years in a “supermax” prison – and this a man with Asperger’s syndrome who could hardly be less suited to such punishment.
But Britain’s extradition arrangements beyond those with the Americans make for equally unhappy reading. The Extradition Act was passed in the aftermath of September 11 and much of its focus is on fast-track extradition of terror suspects. But as with other aspects of the “war on terror“, the net result is damage to long-held principles of fairness and justice. Extradition arrangements are important. They ensure fugitives from justice do not escape prosecution for their crimes – and indeed this is required under human rights law. But it is vital that safeguards are in place.
Liberty believes, as did the UK parliament for many years, that no one should be extradited unless and until the requesting country makes out a basic case against them in a UK court. Failure on this front can result in an innocent person being sent halfway across the world – away from family, supporters and legal advisers – to face unsound, trumped-up or politically motivated charges, to say nothing of probable pre-trial imprisonment. This can and does happen under the European arrest warrant.
Even more worryingly, the home secretary has made orders dispensing with the requirement of a prima facie case in respect of over 20 other countries outside the European Union, including Azerbaijan, Georgia, Moldova, the Russian Federation and Turkey. Not only that, the European arrest warrant system, endorsed by parliament in the Extradition Act 2003, allows a person to be extradited to an EU country for something that may not be an offence in the UK provided the conduct fits within a broad list of 32 offences. While at first blush there seems no problem with extraditing someone for “murder”, we might think differently if another country’s laws define murder as including abortion.
Fast-track extradition is also provided for if the alleged offence is one of “racism or xenophobia”, however this is defined by the requesting country. Many EU countries criminalise speech offences to an extent that the UK – with its history of a robust approach to freedom of expression – does not. Yet a UK court cannot bar extradition on the basis that it is not a crime recognised by UK law.
More and more cases are appearing of unfair extradition practices that demonstrate the very real problems with the current system. This is why Liberty has a new campaign, Extradition Watch, to fight the unfairness of the current system. Fast-track extradition purely on the basis of administrative convenience and efficiency is justice denied. There are very good historical reasons why extradition safeguards were developed and recent cases like those of McKinnon and Andrew Symeou (a young Briton who faces extradition to Greece on extremely flimsy evidence) show why these safeguards should still form part of UK law. Liberty and others propose amending UK extradition arrangements to reinstate these traditional safeguards.
We are yet to learn what the courts will decide in respect of McKinnon’s last-ditch appeals. But it is certain that any legislative reforms will be too late to apply to his case. If this tragic case indicates the direction of travel for UK extradition law, we ignore the warning at our peril.