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Shameful part 6

Psychiatric evidence was produced on behalf of Mr McKinnon. Professor Simon Baron-Cohen, a consultant clinical psychologist at the University of London (and brother of Borat/Bruno/Ali G) stated: " Mr McKinnon's current mental state is, from his parents' report, one of great emotional distress, fear and anxiety, and occasional depression. He fears he will be sent to prison, possibly in the US, and he has even felt suicidal. His parents report that he does not have the social skills to be able to cope with prison, which would be the most traumatic environment for a person with AS (Asperger's syndrome) to be in....it is important to recognize that his emotional age or social intelligence is at the level of a child, even if his intelligence in systemizing is at an advanced level. ... In terms of criminal responsibility it might be more appropriate that he be judged as having the mind of a child who inadvertently breaks a rule doing what he thinks is for the greater good but which is in fact the result of poor social judgment, unaware of how his behaviour will be viewed by others. It is my view that there is a high risk of serious deterioration of Mr McKinnon's mental health if he were to be incarcerated in the USA pre-trial or post-conviction It is also important to bear in mind that if separated from his parents and partner and put into the traumatic environment of prison, there is a risk that he would attempt to take his own life....My recommendations are (a) To avoid the terrifying process of extradition and instead allow the British legal system to prosecute him. The hope is that wherever he is tried, a punishment would be chosen that avoids imprisonment, as incarceration is likely to induce serious psychiatric problems. In my view Mr McKinnon actually poses no harm to society ...... no risk of re-offending.". In a further report he added: " His difficulties in relation to possible detention in prison may relate to his social awareness and empathy difficulties but in my mind they relate more to his current depression and anxiety. The latter centres on his fears of being raped by other prisoners of being physically assaulted by prison guards and he has talked about preferring suicide as an option rather than being put in such a threatening environment. It is not about the environment (I have no idea if his fears are based on any real risks of this) but about his perception of what prison would be like. My previous report identified that he is suffering from an anxiety disorder (panic attacks) over and above his AS. (Asperger's syndrome). If Gary were subject to long-term detention in solitary confinement it is my view that it will likely to exacerbate his depression and increase the risk of suicide. I would also add that in my view Mr McKinnon does not have the social skills to cope with prison. He is unlikely to be able to negotiate his way through a social group of other prisoners in such a way as to be accepted. Nor is he likely to be able to make relationships, and may offend others through expressing his opinions in a very blunt and direct undiplomatic fashion. ".

The Home Office received assurances from the United States authorities (through a Ms Warlow) that he would be searched to see if he had items which could harm him, and that he would be assessed and receive appropriate psychiatric care etc. This would also be considered in his sentencing. (If the jury in the United States finds that he deliberately damaged US government computers I am sure that the personal welfare of Mr McKinnon will be uppermost in the court's mind on sentencing him!).

It is also important to bear in mind that the court worked on the basis it must apply effectively the same human rights test to extradition cases as it does to expulsion cases (relying on the comments of Lord Steyn in R (Ullah) v Special Adjudicator [2004] 2 AC 323). Although no distinction has been drawn in the cases in Strasbourg between the two situations, in my view that ought to be wrong in principle. It is one thing to say that there are certain human rights which mean that in limited circumstances somebody who is not entitled to be in the country in the first place can nonetheless remain, but not otherwise. It is something else entirely to suggest that minimum level of protection granted to persons who were not entitled to be there in the first place should be exactly the same as for citizens for whom the government has responsibility.

What was in my view particularly ludicrous was the way that the court dealt with evidence regarding potential sentencing. They had an affidavit from a US lawyer stating as follows: "With respect to the likely sentence that Mr. McKinnon may face if convicted in the United States District Court for the Eastern District of Virginia, it is difficult to predict with certainly what the term of imprisonment would be. The court will sentence Mr. McKinnon pursuant to 18 U.S.C 3553(a), which directs the Court to impose a sentence that is "sufficient but not greater than necessary" to comply with the purposes of sentencing. In determining the appropriate sentence, the Court is required to consider the nature and seriousness of the offense, the history and characteristics of the defendant, the need to avoid unwarranted disparities in sentencing, the United States Sentencing Guidelines, the need for protection of the public, deterrence, and rehabilitation of the defendant.". Lord Justice Stanley Burnton stated as follows in response to this: "Apart from the reference to the US Sentencing Guidelines, these principles are not different from those that would apply in this country. There is no real doubt, in my judgment, that the sentence that will be imposed by the US Courts will take account of his diagnosis of AS and the difficulties that he will in consequence face in a US prison. In addition, if, as I assume, the US authorities will not agree to his repatriation, that is a matter that should be taken into account by the sentencing judge.". Given the magnitude of difference in sentencing approaches in the United States I doubt this could be described as a realistic comparison.

They also relied heavily upon evidence given by a retired assistant director of federal prisons regarding what he said would be likely to be done for someone in Mr McKinnon's position, and a witness statement from a former prisoner suggesting that the report of what conditions were like in American prisons over exaggerated matters. It is notable that the court added: "We also have the evidence of Joel Sickler, an American criminologist working in the field of corrections. His cogent evidence would undermine the assurances given by Ms Warlow, but it is difficult to reconcile it with the evidence of Mr Wise. Perhaps more importantly, Mr Sickler's evidence was served too late for the Secretary of State to be able to respond to it.". With the best will in the world, information coming from officers or former officers will be something of an idealised view. (Would anyone regard a view taken by a prison governor as the final word on the state of prisons here?).

In broad terms the way the test is applied means it is extraordinarily difficult to avoid extradition on human rights grounds. In reality even if it is appropriate to apply the extradition treaty in circumstances such as this, there ought to be assurances or protocols regarding sentencing levels being comparable to here. There is a distinction to be drawn between acts undertaken here with consequences there, and acts physically undertaken in the United States. If a person goes to the United States and does something there, then it is not unreasonable to regard them as having submitted to the laws and punishments of that country. It is quite another to have a situation where there is such a gross discrepancy between the punishment here and the punishment there in respect of acts actually undertaken here, when the consequences that individuals can expect by way of punishment is far more severe than for the heaviest crimes here.

Michael J. Booth QC