Expert Comment: Gary McKinnon extradition blockedMonday 22 October 2012
John Sawyer, Award Co-ordinator for Liverpool Hope's Law degree, on the blocked extradition of hacker Gary McKinnon.
Last week the Home Secretary found herself in a public policy no-win situation over the operation of the Extradition Act 2003 over the extradition case involving Gary McKinnon. The 2003 Act (passed under Jack Straw’s watch) leaves the final decision in relation to extradition to the Home Secretary, a member of the executive; not to a judge but to a politician.
Last week the Home Secretary was congratulated by some this side of the Atlantic for her stand on Human Rights (an act she continues to threaten to abolish), criticised for allowing the case to drag on by others but which has led (inevitably) to a detectable cooling of relations (some would say with significant security implications) with US attorney general Eric Holder who is apparently refusing to take her calls. No wonder the Home Secretary is considering giving the decision back to (independent) judges. The case exemplifies the 'unruly horse' when there is a collision of politics, policy and law. It may be adjudged in due course to reflect very important political and moral and values or a surprising and unwelcome over-hasty decision at the suite of a moral panic, demagoguery and dangerous populism disguised as principle.
It was back on 19th March 2002 that Gary McKinnon was interviewed about hacking into US military computers by the UK's National Hi-Tech Crime Unit at the request of the US government. In October the District Court of New Jersey in the US issued a warrant for his arrest. Subsequently a US federal grand jury in Virginia indicted him on seven counts of computer-related crimes in 14 states (each count carrying a maximum sentence of 10 years in prison )– a total of 70 years in a Federal Prison. In 2006 the then-home secretary John Reid signed an order on 4th July for McKinnon to be extradited to the US. 2008 McKinnon lost cases in the (then) House of Lords and the European Court of Human Rights.
This case has come to symbolise for lawyers, law makers and judges a general dissatisfaction with the current Extradition Act 2003. No UK court has examined the strength of the evidence the US authorities would want to bring at trial, there is the loss of entitlement of UK citizens to legal aid once they are extradited to the US jurisdiction (where costs are largely met by the defendant's private means), the purported imbalance in the extradition arrangements between the UK and the US, the question of the territorial jurisdiction of foreign courts to try cases committed by UK citizens who have not left this country, (and for criminal lawyers, the place where so called cyber-crime is actually committed), the fact that a UK citizen can be extradited for something that is not a crime in the UK (as can currently happen within the EU), that extradition can be a disproportionate response, the true place and power of individual human rights when caught up with practical politics and perhaps most worrying, the differential application of human rights protections to citizens charged with terrorist offences (see the recent cases of Abu Hamza, Talha Ahsan and Babar Ahmad for example)
It is no coincidence that the 2003 Extradition Act followed the worst terrorist attack in history. It enacted the European Arrest Warrant and a new bilateral deal with America (coined a “Category Two Country' in the Act along with Albania, Russia and Azerbaijan – not known for their fair and just criminal justice systems), both of which have been criticised – the former for removing any requirement for a prima facie evidence that crime has been committed; and the latter for being biased in favour of America.
Surely no one should be sent anywhere without a basic case first being presented in a British court? Unbelievably the Home Secretary has ruled this out – even though both the joint committee on human rights and home affairs select committee support it. The experience of Andrew Symeou in 2011 – arrested in his Enfield, home, shipped off to Greece and left languishing in one of Europe’s worst jails for 11 months only to be acquitted of the manslaughter of Jonathon Hiles – demonstrates poignantly how unjust the operation of the Act can be.
However in relation to the idea of a 'forum bar' whereby extradition can be prevented if a significant part of the conduct constituting the offence occurred in the United Kingdom and that it is not in the interests of justice for the person to be tried in the requesting State, an inquiry chaired by the High Court judge Sir Scott Baker concluded that there was nothing wrong with the 2003 Act and specifically rejected the idea. Even though a 'forum bar' was actually placed on the Statute Book in 2006 but has never been enacted. Mrs May has now said - late in time - an updated version will be introduced.
What about our 'Human Rights'? Not such a powerful block in my view. The McKinnon affair has shown that, even though the Human Rights Act place a positive obligation to secure the right to life in the end, the Home Secretary appears unable to exercise his /her discretion until all other judicial stages have been exhausted. In any event many are not satisfied that the UK is fulfilling its obligation to put in place safeguards to prevent that person from taking their own life did not seek relevant assurances from the US. Hence the “left field” nature of her decision.
Mrs May wishes to now offload the final decision to a judge. Traditionally it has been thought better that the final decision should be taken by a politician who can answer for it in Parliament. Does the Human Rights have a place in politics however? Liberty Policy Director Gareth Crossman has been moved to say "The Extradition Act 2003 undermines longstanding safeguards against unfair removal and unfortunately appears to be more about politics than law.” What is certain is that the non-reciprocal nature of our extradition procedures means current principled debate is construed as anti-Americanism
As may have been seen, the Tories are suffering in the polls. Mrs May’s decision was a welcome break from the patrician 'Mitchell affair' (Plebgate). True, the executive (government), accountable to Parliament, gives expression to political and moral values and is there to give effect to democratic principle in a pluralist society and affords representation for the people. It uses procedures and decides and applies policy after careful consideration to a wide range of interests and representations giving effect to the values of compromise. However, the judges act within the bounds of objective standards supplied by legal and political traditions. They interpret and apply those laws by the formulation of legal rules on a principled basis and they are beholden to no one.1 One wonders why this outsourcing of responsibility from government to judiciary did not happen before.
Ultimately the decision in the McKinnon case may be seen as compromise and trading of public policy interests. Mrs May would have done well to remember the words of Burrough J “It is a very unruly horse, and when once you get astride it you never know where it will carry you. It may lead you from the sound law.”
 Philip Sales Judges and legislature: values into law, Cambridge Law Journal 2012