The period that has passed since Gary McKinnon hacked into US networks amounts to five times the length of any prison sentence given to those convicted of hacking in the UK, but far less than the 70 years he might face in jail if extradited to America.
The issue has still not been resolved ten years after the offences took place. British Home Secretary Theresa May is reviewing the case in the light of fresh medical evidence of McKinnon's autism and his mental state. At the High Court in January, two judges expressed concern about the delay in bringing McKinnon to trial, and listed the case for a hearing in July.
In all the controversy surrounding the case, it is rarely disputed what McKinnon actually did: hack into US military and NASA systems between February 2001 and March 2002, and delete data that temporarily disabled some of their defence networks. The costs of repair and tracking down McKinnon amounted to £400,000 ($A594,667), the US government claims.
Climate of fear
McKinnon's supporters emphasise that his motives for hacking are odd, but not those of a terrorist or career criminal: he was, they say, looking for confirmation of government cover-ups of alternative energy sources and evidence of UFOs. The picture they offer is of a lone eccentric, who should not be treated as a terrorist or professional criminal.
These points are unlikely to win hearts and minds on the other side of the Atlantic, where legislators are seeking a more vigorous flexing of the state's muscles against the growing threat of cyber crime. Central to the debate on McKinnon's case are the US-UK extradition arrangements; the 2003 Extradition Act was introduced by the then Home Secretary David Blunkett at a time when anxiety about terrorism was high, with tanks rolling across the tarmac at Heathrow Airport and UK troops fresh on the ground in Iraq.
Put simply, the act extends to traditional allies such as the US, Canada and Australia, as well as new partners such as the Russian Federation, the same ability to extradite people from the UK as is available under the terms of the European Arrest Warrant (EAW).
Voice of experience
McKinnon's fight against extradition has echoes of ‘the NatWest Three', the trio of British bankers charged in the aftermath of the Enron scandal. Giles Darby, David Bermingham and Gary Mulgrew came to the attention of US investigators through their business dealings with Enron CFO Andrew Fastow. The three were indicted for fraud by a Texas court in 2002, and extradited to the US in 2006.
In his recent testimony to a Home Affairs Select Committee, Bermingham argued that extradition arrangements with the US need reform, citing his experience of how they work. The costs of hiring defence lawyers in the US may run to millions of dollars, and these are not recoverable, putting a trial beyond the reach of all but the wealthiest, Bermingham said. What's more, preparing a defence – obtaining the necessary documents and witnesses – can be extremely difficult when alleged offences have taken place outside the US, he said.
Then there is the US approach to sentencing and plea bargains: defendants may be charged on multiple counts, carrying the threat of decades behind bars, but are offered a shorter jail term if they testify against co-defendants and/or plead guilty to one of the charges. The NatWest Three took the second option, serving a total of 37 months in prison, initially in the US and then in the UK.
Bermingham argued that this all puts enormous pressure on a defendant to avoid a jury trial – something that is very at odds with the workings of the UK criminal justice system. Other critics say the US approach creates a fast track to jail for innocent people, and possibly for a very long time.
“The initial speculation for us was 35 years. It just terrifies you. You go through this calculation of how old you will be when you get out, how old your kids will be, how many people you know are going to be dead,” says Gary Mulgrew. “McKinnon will have suffered so much already. I understand what he's going through.”
An obvious response is that numerous people in UK jails have genuinely moving stories to tell, but fully deserve to be there. Nevertheless, the plights of McKinnon and the NatWest Three have attracted a notably broad range of sympathisers. Hackers often draw voluble support, but usually from a narrow demographic, while bankers were unlikely recipients of public sympathy even before the current financial crisis, so why the concern now?
“A petition for [detained terrorist suspect] Babar Ahmad received 140,000 signatures, and he's not an obvious candidate for public sympathy either. Some people are prepared to look beyond screaming headlines, they have a conscience,” says Melanie Riley, director of Bell Yard Communications, a PR company that supported the NatWest Three and is now backing McKinnon.
Politicians from all parties have voiced concerns about the way the extradition law is being applied to McKinnon; even David Blunkett recently told a backbench meeting that in 2009 he attempted to engage US authorities on the possibility of McKinnon giving evidence by video link and serving any custodial sentence in the UK. The release of US diplomatic cables by WikiLeaks, meanwhile, revealed that the then Prime Minister Gordon Brown also tried to broker a deal. Blunkett and Brown may feel some personal responsibility, but why do other politicians feel moved to act?
“Politicians are interested in this for several reasons. They know there is a possibility that it will affect their constituents. Some politicians are also lawyers, so they can just see what's wrong with this law,” Riley says. The McKinnon case has received extensive coverage in the mainstream press, not just specialist publications. “The Daily Mail took it up when the deputy editor learned of it at a charity event, and spotted it was an important case. The Mail had seen the way the Telegraph had taken up the case of the NatWest Three. Of course, that case also supplied reasons to criticise the Blair and Brown governments,” Riley adds.
Having criticised Labour while in opposition, the Liberal Democrat and Conservative parties now find themselves holding something of a poisoned chalice – at least in the eyes of those who believe that the current extradition legislation should be amended.
Long arm of the law
“There are two key issues with this: the issue of forum, and the issue of evidence,” says Riley. “In layman's terms, the forum issue concerns what is relevant in deciding whether a court outside the UK should deal with a case, while the second issue concerns the scrutiny that can be applied to evidence in UK courts before an extradition request is granted.”
Both questions were examined as part of a review commissioned by May last year and conducted by Lord Justice Scott Baker. His findings, published in late 2011, rejected accusations that our extradition arrangements are biased in favour of the US and that the right to a fair trial is not given sufficient protection.
Perhaps not surprisingly, McKinnon's supporters branded the review a whitewash, but even legal experts not directly involved in the case are concerned that it failed to get to grips with important questions about forum and evidence.
“It should be open to a judge to determine if someone should be tried in this country,” says Sophie Farthing of Liberty. That the forum aspect is a concern is demonstrated by the inclusion of a forum amendment in the Police and Justice Act 2006 – but although the amendment is on the statute book, it never received the commencement order necessary for it to come into force. So why not?
Opponents of reform argue that introducing such changes could undermine the purpose of a fast-track extradition process. On this view, it is the purpose of our courts to ensure that an extradition request has been properly made, that a defendant has been correctly identified, and that extradition will not involve a breach of their human rights. It is not the purpose of our courts to test evidence in the way that a trial in the UK would, it is argued. A move in this direction would introduce further complexities and lead to delays, nullifying the purpose of a fast-track system.
Liberty responds by suggesting there is reason to doubt that the original purpose of the legislation was to deal with cases such as McKinnon's. “You only have to look at what former home secretaries – including Blunkett – have said,” says Farthing.
“The challenge for the Government is coming up with a fair and effective extradition process. This legislation has removed lots of safeguards,” says Jago Russell, chief executive of Fair Trials International. The organisation is especially concerned with the EAW system, under which thousands of extradition requests are made to the UK every year, most of which – for obvious reasons – go unreported by the mainstream media. Many of these, however, are for only minor offences, Russell says.
“We are talking about the theft of a chicken, or even going overdrawn. And it can take months or even years for the trial to even happen. I can think of a case in Greece, one young guy who lost three years of his life before being found not guilty.” Russell cannot recall the EAW being used in a case of alleged hacking, but warns that doesn't mean it won't happen.
Fair and effective?
Addressing the forum and evidence issues will not remedy other legitimate concerns about the act, Russell says. “It certainly won't fix the human rights issues, the question of what happens to someone after they're extradited, and the minor offences,” he says.
In light of Baker's report, the campaigners for reform are pinning their hopes on Parliament and public opinion. In addition to the Home Affairs Select Committee, the Human Rights Joint Committee has received evidence on the extradition arrangements, highlighting “a number of areas where we believe the protection of rights for these persons is significantly below the standard which a UK citizen should expect”.
Hopes for change
“I am still hopeful that there will be a reform of the Extradition Act. There was a Parliamentary debate before Christmas 2011 where MPs voted overwhelmingly that there should be reforms, and the Liberal Democrats are presently undertaking their own review headed by Sir Menzies Campbell QC,” McKinnon's solicitor, Karen Todner, reveals.
Todner's hopes about the Lib Dems appear to have some basis, as Sir Menzies disagrees with a key conclusion of the Baker review: that there is no imbalance between the UK and US approaches to evidence.
“In my opinion the conclusion that there is no distinction between ‘probable cause' [the US] and ‘reasonable suspicion' [the UK] is incorrect. By way of illustration, it would be legal to arrest someone on the ground of ‘reasonable suspicion', but only appropriate to initiate criminal proceedings if you were satisfied there was ‘probable cause'.
“The British approach of ‘reasonable suspicion' gives our citizens less protection than ‘probable cause' gives to American citizens under the Fourth Amendment of the US constitution. For these reasons I disagree with the Baker Review,” he says.
Providing evidence of McKinnon's mental state is in the hands of medical experts, and one observer who thinks that it should be taken very seriously is Gary Mulgrew. He acknowledges that he and his co-accused were treated comparatively well, but says nobody should be in any doubt about the tough conditions in US jails, with their gang culture and widespread intimidation and violence.
The fact that McKinnon would most likely be sent to a low-security prison, as the NatWest Three were, counts for little in Mulgrew's opinion: “It certainly doesn't mean you're safer. I met people inside who said they felt safer in high security prisons: because there are more guards around,” he says.
Mulgrew has written* that he spent much of his time incarcerated with 80 inmates, and rarely saw a guard. It was left to the prisoners to organise much of their daily life, he claims. “It was hellish. I'm not a brave man and I was terrified all the way through. I kept thinking about my kids and how I had to survive and get out to be a father for them. “Without that thought I might have struggled to get through it.”
* Gang Of One by Gary Mulgrew is published by Hodder & Stoughton.