Only 'unlawful threats' would invalidate McKinnon extradition

Analysis The Law Lords have published their reasons for rejecting the extradition appeal of accused Pentagon hacker Gary McKinnon.

In a ruling published on Wednesday morning, five Law Lords turned down an appeal that aggressive tactics adopted by US authorities during negotiations with McKinnon constituted an abuse of the process. In particular, the Lords were asked to consider whether the US government overstepped the mark in threatening to oppose requests for repatriation for McKinnon to serve part of his sentence in the UK if he continued to contest his extradition.

McKinnon was told he'd face a sentence of between three and four years if he cooperated with the authorities and pleaded guilty against a possible eight to 10 years after a US trial. Play ball, McKinnon was told, and you'll get six to 12 months in a low-security prison in the US after which there were good prospects of repatriation and a total time behind bars of two years. Oppose us and you'll get eight to 10 years or more in a US high-security prison with the potential of just 15 per cent off for good behaviour.

Lord Brown of Eaton-under-Heywood, the former intelligence services commissioner, dismissed this appeal in a legal opinion unanimously endorsed by his four colleagues. He ruled that the US authorities handling of the case was not unreasonable. Lord Brown said McKinnon overstated differences between US and UK law and that in the UK (as in the US) lower sentences result from a timely guilty plea. Reducing an estimate of the damage caused by McKinnon's actions by only taking into account the time wasted on dealing with the disruption caused by McKinnon, estimated at $700,000, and not the cost of the disruption to the military District of Washington network blamed on McKinnon, is perfectly proper, Lord Brown ruled:

It is as well to recognise that the difference between the American system and our own is not perhaps so stark as the appellant’s argument suggests. In this country too there is a clearly recognised discount for a plea of guilty: A basic discount of one-third for saving the cost of the trial, more if a guilty plea introduces other mitigating factors... No less importantly, it is accepted practice in this country for the parties to hold off-the-record discussions whereby the prosecutor will accept pleas of guilty to lesser charges (or on a lesser factual basis) in return for a defendant’s timely guilty plea.

US authorities were quite within their rights to oppose repatriation, according to the Law Lords:

The Convention [of Europe] confers no rights on prisoners: a state is not obliged to comply with a repatriation request nor to provide reasons if it refuses to do so.

Lord Brown ruled that the appeal court's “cultural reservations” about plea bargaining and a "distaste" at the US approach towards providing or withdrawing support for repatriation were neither here nor there.

These comments seem to me somewhat fastidious. Our law is replete with statements of the highest authority counseling not merely a broad and liberal construction of extradition laws... but also the need in the conduct of extradition proceedings to accommodate legal and cultural differences between the legal systems of the many foreign friendly states with whom the UK has entered into reciprocal extradition arrangements.

The US Congress has not ratified the extradition treaty. This means that the UK is not allowed to extradite suspects from the US without putting all its evidence before a US court, a point worth bearing in mind when consider Lord Brown's fulsome support of current UK to US extradition arrangements.