Original URL: http://www.theregister.co.uk/2008/07/30/mckinnon_lords_ruling_analysis/

Only 'unlawful threats' would invalidate McKinnon extradition

Ordinary threats not enough

By John Leyden

Posted in Law, 30th July 2008 13:57 GMT

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.

Lord Brown goes on to argue that McKinnon might be facing an equally serious offence even if he was tried in the UK, the outcome his legal team and campaigners are seeking:

As the Divisional Court itself pointed out, the gravity of the offences alleged against the appellant should not be understated: The equivalent domestic offences include an offence under section 12 of the Aviation and Maritime Security Act 1990 for which the maximum sentence is life imprisonment. True, the disparity between the consequences predicted by the US authorities dependent upon whether the appellant cooperated or not was very marked... But the discount would have to be very substantially more generous than anything promised here (as to the way the case would be put and the likely outcome) before it constituted unlawful pressure such as to vitiate [invalidate] the process. So too would the predicted consequences of non-cooperation need to go significantly beyond what could properly be regarded as the defendant’s just desserts on conviction for that to constitute unlawful pressure.

The Lords considered a Canadian Supreme Court case (USA v Cobb [2001]) where extradition proceedings against fraud suspects to the US were curtailed after a US prosecutor was found to have threatened suspects that they'd be placed in a situation where they could expect prison rape unless they agreed to voluntary deportation. A US judge in the same case vowed to hand down maximum sentences to anyone convicted after resisting deportation.

The offer made to McKinnon hardly deserves to be considered as anywhere near comparable, Lord Brown ruled:

The differences between this case and Cobb are striking. In Cobb it was the judge who stated that non-cooperation would result in "the absolute maximum jail sentence that the law permits me to give" and he, after all, unlike the prosecuting authority, had the power to pass sentence. And in Cobb the prosecutor, so far from forewarning the defendant of the differing consequences which could be expected to follow (perfectly properly) from his decision whether or not to cooperate, effectively threatened (and here I use the word advisedly) those not cooperating with homosexual rape.

Following the plea bargain talks between McKinnon, his legal team, and US prosecutors, other US legal officials have made undertakings that the threat to oppose repatriation will not be carried through. Lord Brown concludes nothing much less than threats of assault against McKinnon, or other extradition targets, would taint the extradition process:

In my judgment it would only be in a wholly extreme case like Cobb itself that the court should properly regard any encouragement to accused persons to surrender for trial and plead guilty, in particular if made by a prosecutor during a regulated process of plea bargaining, as so unconscionable as to constitute an abuse of process justifying the requested state’s refusal to extradite the accused. It is difficult, indeed, to think of anything other than the threat of unlawful action which could fairly be said so to imperil the integrity of the extradition process as to require the accused, notwithstanding his having resisted the undue pressure, to be discharged irrespective of the strength of the case against him.

McKinnon and his legal team have vowed to lodge an appeal at the European Court of Human Rights. The use of threats made by US authorities during the plea bargaining process and the concern that McKinnon may face a military tribunal, rather than a civil court, if he is extradited to the US, will be the two grounds of appeal.

Unless the European court intervenes with a stay in proceedings McKinnon faces the prospect of deportation in less than a month.

McKinnon (aka SOLO), a self-confessed computer hacker, was first arrested six and a half years ago after allegedly hacking into 97 computer systems run by the US armed forces and NASA in what prosecutors described as the biggest military hack ever. McKinnon claims to have broken into systems only to uncover confidential information about anti-gravity propulsion systems and UFO tech he reckoned the US military was hiding from the public. ®