Jacqui Smith slammed by McKinnon lawyers

The UK'S Home Secretary was "perverse and inhuman" in her rejection of Pentagon hacker Gary McKinnon's plea that his mental health made him unsuitable for detention in the US, the High Court was told on Friday.

Jacqui Smith, the Home Secretary, agreed to consider McKinnon's extradition after he was diagnosed with Asperger's Syndrome, a form of autism, in August. She dismissed his appeal last Monday. But on Friday afternoon, McKinnon's legal team applied to the High Court for a judicial review.

McKinnon's claim for a judicial review raised Asperger's Syndrome again as the grounds to stay his extradition to a face imprisonment under conditions that have been criticised by human rights champions in the United Nations.

"Given the Claimant’s mental disability, the lengthy incarceration he faces and the likelihood that the loss of family contact and the experience of serving a sentence abroad," said the claim, made by renowned human rights lawyer Edward Fitzgerald QC, "It will expose him to a severe deterioration in his condition. It is perverse and inhuman not at least to seek an undertaking that he will not be repatriated," it said.

Smith had said she had no "residual discretion" to consider McKinnon's health. The claim asserted she did have a statutory right to do so, and that she had neglected it.

"Given Mr. McKinnon’s age, physical health and make-up as a person of great vulnerability with overt behavioural and social difficulties, the extreme duration and the degrading detention regime will subject him to intense physical and mental suffering," said the claim.

This would breach his human rights. Smith had rejected this defence because the evidence that McKinnon would serve time in a supermax prison, and that such prisons were operated under inhumane regimes, was flakey. But the claim said Smith's own evidence to the contrary was non-existent.

"Instead of informing herself the [Home Secretary] simply appears to have set out to undermine the evidence presented by the claimant," said the claim. "At the very least... the [Home Secretary] should have sought information and/or assurances from the US as to whether the Claimant will be detained in a Supermax prison rather than simply reaching her own conclusion without seeking any information or clarification from the US," it said.

Similarly, Smith hadn't even bothered to ask the US whether McKinnon could be repatriated to serve his sentence in the UK, when other countries such as Israel and the Netherlands refuse to allow extradition without repatriation at all.

It stands to reason, said the claim, that as the US intends to try McKinnon as a terrorist who used his hacking exploits to bring down military computer systems and "coerce and intimidate" the US into changing government policy, that he will be sent to a supermax prison where the US sends convicted terrorists.

Abu Hamza, the one-eyed, hook-handed Muslim cleric who is also fighting extradition to face terrorism charges in the US, had his extradition held by the European Court of Human Rights in August.

The court wanted to determine whether human rights law would allow him to be sent to a supermax prison. It would be "perverse" and contrary to human rights law for the government to extradite McKinnon before the ECHR had reached a conclusion over supermax prisons, said the claim. Moreover, the UK courts had already asked whether long detention in a supermax might "violate the prohibition on torture and on inhuman and degrading treatment".

The matter had not yet been settled.

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