Gary McKinnon’s case has proved to be a landmark.
It has spanned a decade, four home secretaries and two governments on both sides of the Atlantic. When McKinnon was first arrested in March 2002 for hacking US military computers at the Pentagon and Nasa, the US Justice Department announced its decision to seek his extradition, a rare course of action in computer crime cases.
McKinnon’s solicitor Karen Todner, assisted by trainees at Kaim Todner, spent the next 10 years fighting the extradition, working partly in a pro bono capacity and partly as a result of legal aid. She brought the case to the High Court, the House of Lords and the European Court of Human Rights. Before McKinnon’s case, Todner had spent most of her career specialising in computer law but now focuses on extradition cases.
McKinnon was accused of hacking military computers between February 2001 and March 2002. The US alleged that he had caused £370,000 of damage and had carried out eight counts of computer crime across 14 states. He was said to have stolen passwords, monitored traffic and erased files as well as shutting down networks on military bases.
Todner says: “I still remember taking the call from Gary. He was explaining the nature of what was alleged and I thought, no, that can’t be right. But of course, it was right. I knew it was a big case because of what he was alleged to have done, but I had no idea it was going to be as big as it was.”
Extradition proceedings began in July 2005. Mark Summers, representing the US government, insisted that McKinnon’s “conduct was intentional and calculated to influence and affect the US government by intimidation and coercion”. In May 2006, Bow Street Magistrates’ Court recommended that McKinnon should be extradited, but said that the decision should be made by the home secretary. The home secretary at the time, Labour’s John Reid, supported the decision in July 2006.
The decision to extradite was upheld in the House of Lords and the European Court of Human Rights, and was approved by Reid’s replacement, Jacqui Smith. But there came a turning point for McKinnon at the end of 2009.
Todner says: “There were certain key points. There was the refusal of the Rule 39 release from Europe, then there was the diagnosis of Asperger syndrome, which came about because Gary was on TV giving an interview and a member of the public who had Asperger’s, contacted me. She said that she recognised the syndrome in Gary and to get him tested. I did the next day and it was positive. That was a key point and we went from a very low to quite a positive moment.
“I knew by that point, by virtue of the fact we’d got leave, that we were going to keep him here for a potential Conservative government and that the chances of winning were substantially increased,” says Todner.
The fresh medical evidence formed the basis of a new High Court challenge that contested the ability of the US prison services to accommodate McKinnon. In January 2010, Todner and McKinnon were granted a judicial review, and the National Autistic Society (NAS) joined the case as an ‘interested party’ with the help of Michael Ward, an associate at SJ Berwin, working pro bono.
Ward says: “I’m a corporate litigator and I thought it would be interesting to ask different questions. Lawyers ought to do pro bono work, that’s my personal view, and I liked what they were trying to do and thought there was a degree of injustice where McKinnon was concerned. The NAS wasn’t the absolute epicentre by any means, it was providing guidance to the court on issues to do with autism.”
Todner is adamant that the change of government was central to McKinnon avoiding extradition. Calling the effect of the changeover “massive”, she says: “If the Labour Party were in power, they would never have allowed him to stay, I’ve got no doubt about that. They brought in the Extradition Act and the Conservatives and the Liberal Democrats were very vocal in their opposition to it. I knew that if we could just wait for them to get into power we had a good chance.”
As soon as Theresa May was appointed home secretary in May 2010, she adjourned the case. Two years later, on 16 October 2012, McKinnon’s extradition was finally blocked. Former Labour home secretary Alan Johnson, who refused to stop McKinnon’s extradition to the US, stated that justice had not been done.
He said: “Gary McKinnon is accused of very serious offences. The US was perfectly within its rights, and it was extremely reasonable of them to seek his extradition. We now do not know whether Gary McKinnon will ever have to face justice on those accusations. The home secretary has made a decision that’s in her own party’s best interest; it is not in the best interests of the country.”
Todner lambasts his comments as “very ungracious and cowardly”. She adds: “One thing he also said was that he had exactly the same medical information as Theresa May and that’s simply not right. She had a lot more medical evidence than he saw.”
Whatever furore May’s decision has caused, the Crown Prosecution Service (CPS) will have to decide whether to prosecute McKinnon in the UK. In 2009, the CPS did not prosecute, stating that the evidence against McKinnon proved that he had obtained “unauthorised access with intent” but did not “come near to reflecting the criminality that is alleged by the American authorities”. At the time of going to press, the CPS is yet to decide whether to prosecute.
Todner reasons: “Gary wants closure. If he’s prosecuted in the UK, that’s not the worst thing that can happen.”