Original URL: http://www.theregister.co.uk/2009/06/09/mckinnon_legal_fight_latest/

McKinnon launches second extradition challenge

Belt and braces strategy

By John Leyden

Posted in Law, 9th June 2009 12:54 GMT

A judicial review of former Home Secretary Jacqui Smith's handling of the Gary McKinnon extradition proceedings began in London today.

The hearing, which is expected to last two days, will consider whether Smith acted correctly in allowing extradition proceedings against the UFO-hunter-turned-hacker to proceed, despite his recent diagnosis with Asperger's Syndrome.

Separately, McKinnon's legal team recently launched a legal objection against a February decision by the Crown Prosecution Service not to prosecute McKinnon in the UK. McKinnon signed a confession to hacking offences, but UK prosecutors decided that this still constituted insufficient evidence for a case. US prosecutors, by contrast, aren't obliged to present any evidence in order to secure extradition, under the terms of the one-sided extradition treaty between the US and UK.

Karen Todner, of McKinnon's solicitors Kaim Todner, told El Reg that the application for a judicial review - examining the Director of Public Prosecution's decision not to charge McKinnon in the UK - was separate to the judicial review of the Home Office's handling of the case.

The legal review of the Home Office's decision-making process focuses solely on the implications of Aspergers's Syndrome diagnosis. The judicial review on the DPP's decision, meanwhile, could consider a far wider range of factors. These included the human rights aspects of the case, Janis Sharp, McKinnon's mum, explained.

The dual judicial review strategy represents a belt and braces approach towards blocking McKinnon's extradition to the US, for hacking into US military and NASA systems back in 2001 and 2002. McKinnon and his supporters have consistently argued that he ought to be tried for these offences at home in Britain, if anywhere.

Sharp remains upbeat that this week's judicial review against the Home Office will come out in favour of her son, who has been fighting against extradition since 2005.

"The grounds for the judicial review of Jacqui Smith's decision, in that she didn't take Asperger's into account, are strong," Sharp explained in an email to El Reg. "It's all witness statements and a very powerful one is the case of a young man named William Billy Cottrell, who has Asperger's and is imprisoned in California, where his treatment is horrendous."

McKinnon was only diagnosed with a mild form of autism late last year. The possible effect of a US trial and imprisonment on his condition wasn't considered during earlier proceedings, including failed appeals to the House of Lords and the European Court of Human Rights last summer. These failed appeals focused on allegations of bullying during plea bargaining negotiations and questions of whether McKinnon might be allowed to return to serve part of any sentence a US court might impose back in the UK. ®