McKinnon case is NOT a precedent – says his own lawyer
Cold comfort for O'Dwyer, Cleary et al
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Solicitors representing Gary McKinnon said that his victory in being saved from extradition does not set a precedent in other cases.
Home Secretary Teresa May withdrew an extradition order against McKinnon on Tuesday, marking the successful end to a eight-year campaign to resist his extraction to the US to answer to charges relating to hacking offences against US military systems.
May accepted the conclusion of a psychiatric assessment finding that the 46-year-old, who suffers from Asperger's Syndrome and depression, would be likely to take his own life if faced with the prospect of US extradition, trial and likely imprisonment. It's the first time a Home Secretary has intervened in an extradition case since a controversial UK-US extradition law came into effect in 2003.
Karen Todner, of Kaim Todner Solicitors, welcomed May's decision while accepting it had little bearing on other cases.
I am absolutely delighted by the Home Secretary’s announcement yesterday confirming the withdrawal of the Extradition Order against Gary McKinnon.Gary has endured a long hard struggle against extradition and I have represented him throughout that 10-year period. We have been to the House of Lords twice, The European Court of Human Rights and seen the case pass through the hands of two Home Secretaries.
I believe the decision made yesterday was a courageous one but it was also both legally and morally correct. The medical evidence that I supplied to the Home Secretary was overwhelming and extremely powerful. It would have been astounding for her to have ignored it.
I do not believe that this case sets any precedents. The medical evidence in Mr McKinnon’s case was, in my view, unique.
Supporters of other Britons who have fought extradition can take little comfort from the McKinnon case.
Briton Talha Ahsan was extradited to the US last week on allegations that he ran websites supporting guerrilla fighters in Chechnya and Afghanistan between 1996 and 2002. One of the sites was hosted in the US, grounds for the US extradition warrant.
Like McKinnon, Ahsan has been diagnosed with both Asperger's Syndrome and depression, but leniency was not shown in his case. El Reg understands that the medical evidence in Ahsan's case was not as compelling, however, while McKinnon was diagnosed by five separate psychiatrists to be at high risk of suicide.
Todner welcomed the introduction of procedures that mean that a UK court would decide where to try a case before going forward with extradition hearings, a procedure known as a "forum bar". The solicitor is an expert in extradition cases, representing McKinnon throughout his long fight as well as other extradition targets including LulzSec suspect Ryan Cleary, Christopher Tappin and many others. Many but by no means all of these cases involve extradition to the US.
I welcome much of the changes indicated by the Home Secretary to the Extradition Act but we should not forget the dreadful cases of Andrew Symeou, the Crete 5, and [Luke] Atkinson and [Michael] Binnington and the grave injustice our Extradition Act has caused to them and their families.We do not apply for extradition of American citizens who commit offences in America. America should therefore afford the same respect to our judicial system and not apply for the extradition of British citizens who commit offences whilst in the UK.
Todner expressed the hope that the Home Secretary would introduce the proposed "forum bar" amendments to the legal process of extradition "as soon as possible".
Sheffield Hallam University student Richard O'Dwyer, 24, faces extradition over hosting a TV link site, TVShack.net. More than 247,000 people signed an online petition started in June by Wikipedia founder Jimmy Wales calling for O'Dwyer's extradition to be blocked.
However the extradition order against O'Dwyer has already been signed by a magistrate and approved by the Home Secretary. The case is under appeal but its unclear if the rule changes in extradition procedures will come into effect in time to become a factor in the case. TVShack.net was not hosted in the US but O'Dwyer was nonetheless charged with conspiracy to commit copyright infringement and related offences by a New York court. ®
COMMENTS
Correct - This is NOT a US case
The O'Dwyer case sets yet another dangerous precedent. Regardless of whether O'Dwyer is guilty of copyright infringement, everything he did was outside the US. He used non-US servers, and controlled them from the UK. There is existing civil legislation that the companies or quangos who believe that they have had their products infringed by his site can take legal action in the UK.
But by doing so, they accept that this is under UK law. That means it is a civil action. The burden of proof rest with them. As he did not store or forward any actual content, only links to content, and as he had a note on the sites front page that accessing the content he linked to may be illegal in your jurisdiction, he has some defence.
It is not my argument whether he is guilty or innocent. My position is that as he is a UK Citizen, living in the UK, with servers housed outside the US, he should be tried in the UK.
The extradition laws are there to ensure the repatriation of citizens who have broken the law of their home country back to their own country to face justice there. It is not there for sending your citizens to a foreign country to face justice there, when you have not actually committed a crime within that country. That is called rendition.
What we are seeing is an American justice system that is attempting to impose itself on foreign nationals living in their who country. The implications of this is that we are all now subject to US law, and the courts are interpreting this as superseding UK law.
Thinking of the copyright case...is there even a need for extradition? There's copyright legislation on the right hand side of the ocean too, why not bring the guy before a British court?
Defaults
The default option when receiving any extradition request should be no. It should then be up to the authority requesting the extradition to prove why this specific case should be treated differently.
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