Animal magic
It will be recalled that in Shameful part 4: it was stated that we would look at the application of the human rights test in the McKinnon case.
One issue raised in those proceedings related to the human rights of Mr McKinnon and the decision not to prosecute him in England. He had originally been arrested in this country on 19 March 2002. That was in respect of offences against the Computer Misuse Act 1990 ("the 1990 Act"). He was interviewed and released on bail, and later that year United States grand juries issued indictments against him. One was in the District of New Jersey on 31 October 2002 and the other in the Eastern District of Virginia on 12 November 2002. In September 2002, the National Hi-Tech Crime Unit wrote to Mr McKinnon and warned him that the United States might seek to extradite him, and that if they did not request such extradition or such request was unsuccessful, he might face charges in the United Kingdom.
One of the points being made on behalf of Mr McKinnon was that he should have been prosecuted here. His acts were undertaken here and although they damaged computers in the United States (and had a significant impact on military operational capability there in the immediate post-9/11 period) cases had been prosecuted in this country where damage was occasioned to American computers. However there were also a number of other features for the prosecutor to take into account. Although something resembling an admission in respect of the more minor potential hacking charge under the 1990 Act had been made on behalf of Mr McKinnon he was not admitting intent to damage and the relevant material concerning that would be largely in the United States. Most of the evidence about what happened would be in the United States anyway, and much of that would be sensitive material where the courts would have to consider how that should be dealt with. It could cause obvious problems here. There was also the point of principle that the decision regarding prosecution was not all about the position of the offender. It was accepted that the CPS had liaised with the US Department of Justice in deciding where charges ought to be brought. They put the point this way: "The US authorities initiated the investigation. The investigation was likely to be complex with a large number of witnesses located throughout the United States and with a large number of computers that required examination also situated throughout the United States. McKinnon appears to have targeted systems owned by the military or by related organisations therefore in addition to the sheer practical difficulties of UK police carrying out an investigation on this scale in the United States there were likely to be issues surrounding unused material and in particular unused material that might be considered sensitive.".
Indeed concentrating on the prosecuting authorities (whilst entirely understandable as a tactic used by Mr McKinnon's representatives) is in reality beside the point. If the extradition arrangements are proper ones (that of course is a matter for Parliament rather than the prosecutor) then the prosecution system should not be geared purely towards avoiding the consequences of those extradition arrangements. Although human rights are relevant to prosecution (although it is notable that the DPP was recently pilloried in the popular national press for issuing a direction that the human rights of the offender were to be taken account of in decisions to charge etc) the decision whether or not to prosecute is a complicated one and trying to get the courts to effectively take it over is extraordinarily difficult.
That means however that in practice there is very little scope for attacking an extradition on the basis that the relevant conduct occurred here. It also means that in practice (particularly in financial crime) the authorities here can abdicate responsibility for prosecution even if the key acts occurred here yet prosecution is sought in the United States because of some incidental effect. In truth one reason why prosecutors would be content to abdicate responsibility in such circumstances is there is a much greater chance of securing a conviction in the United States, not least because there is a much greater likelihood of a guilty plea. That is because there is so much of a discount for pleading guilty (against much, much heavier potential sentences) that you would have to be pretty certain of an acquittal to want to fight the charge whether you were innocent or guilty.
That means that in practice the issue regarding rejection of human rights (save in the rarest cases) will only arise not in the decision whether or not to prosecute, but in whether or not to extradite. We will look at how this was dealt with next week.