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Shameful part 3

On ways in which the present state or application of the law is unacceptable.

It has already been seen that there is a gross disparity between the position of UK citizens being extradited to the States and vice versa. This continues notwithstanding ratification of the relevant treaty due to certain US Constitutional rights. However, whatever one thinks of all of this, subject to considering the various tests applicable the question is what the law provides for.

Before considering the precise test regarding human rights, and how that is to be given effect to, it is worth considering something of the general circumstances. We will deal firstly with the position of Mr McKinnon. (The saga regarding Mr Norris has still not yet been completely played out). By the time this article appears (it having been written before my trip to Japan) I hope the position is that either the Home Secretary or the Strasbourg court have intervened on Mr McKinnon's behalf. Whilst I would be delighted for either of those to have occurred, I am not wildly optimistic. Unless either occurs he will be extradited to the United States.

After Mr McKinnon was refused permission to appeal against the order for his extradition, he was described as "suicidal". The failure of the Secretary of State to ask for assurances regarding bail pending trial or repatriation to serve his sentence here was not regarded as relevant by the court (on the basis that if the Secretary was under no duty, his failure to do something which he was not under a duty to do was not relevant). Mr McKinnon suffers from Aspergerís syndrome. This syndrome is a form of autism, although not as apparent as other forms (there is not the same effect on brain and language). However the sufferers still have difficulties interacting with others socially and suffer from what are described as restricted and repetitive patterns of behaviour, with their interests following the same pattern. Such people can easily have an obsessive interest in a particular hobby. Many syndrome sufferers continue to have problems with independent living into adulthood.

If convicted Mr McKinnon could receive a prison sentence for as long as 60 years. His offence was hacking into Pentagon and Nasa computers. This was plainly a serious security breach which is likely (and rightly) to be viewed seriously. Mr McKinnon states that so far from wanting to interfere with Western security, what he was looking for was evidence of UFOs. Given the syndrome he suffers from that seems reasonably credible.

I cannot stand computer hackers. They are a nuisance and a scourge on society. Computer hackers who threaten the integrity of defence systems ought to be given short shrift. Having said all of that, one has to get and keep a proper sense of perspective. No harm was apparently done. There is no suggestion that Mr McKinnon was genuinely trying to cause a defence problem. I am not suggesting that he should be let off scot free. I'm not even suggesting that his offence does not merit imprisonment. However, 60 years?! As John McEnroe would no doubt have said, "you cannot be serious". Let us compare him to child molesters, rapists, murderers. I do not think even the most dedicated hater of computer hackers would remotely put them in the same category as the people referred to in the previous sentence. Nonetheless, if you look at the sentences handed out to such people in this country they are certainly far less than Mr McKinnon would face. (I appreciate that some are normally life sentences but the minimum period would nearly always be less than 30 years). Although Mr McKinnon was hacking into Pentagon computers, he was doing it from this country. I am in no way acting as an apologist for him, but merely point out that from the perspective of this country and its sentencing arrangements, this country being willing to be party to arrangements under which Mr McKinnon, for something he did from this country, could serve a sentence which could easily be double that he would have got here for a particularly brutal racially motivated killing, seems somewhat bizarre.

There is in addition the question of the impact of the sentence. A cynic might suggest that one reason the Secretary of State will not wanting Mr McKinnon to serve the sentence here is that if he was serving a sentence in prison alongside people in for much worse offences, and serving a spectacularly longer sentence, that would actually serve to emphasise the apparent absurdity. If he serves his sentence a long long way away, or dies and fails to complete the sentence, even though that is worse it is not as visible from a local perspective.

Mr McKinnon given his syndrome is therefore likely to be a person who would struggle socially in any event. How on earth is he to cope in a US prison? If Mr McKinnon were a terrorist convicted killer he would not be sent back to a jurisdiction where he would be executed because it would infringe his human rights. I am not sure that the prospect of 60 years in a US prison is frankly any better than an execution and I suspect that many people would regard it as a toss-up as to which would be worse. I certainly cannot see that it is unrealistic to suggest that Mr McKinnon will be at risk of suicide. Again therefore that one would have thought ought to be relevant to the question of his human rights.

We will look therefore at the House of Lords test next week, consider in addition the plight of Mr Norris, and then decide whether the state of the law can be regarded as acceptable.

Michael J. Booth QC