The strange case of Gary McKinnon

Obviously, one has to feel a lot of sympathy for someone who is apparently scared and depressed, facing a really very nasty future. But I really do find myself getting a bit David Aaronovitch here and asking 1) How the hell did it come to this? and 2) Why are campaigners against the US/UK extradition treaty seemingly incapable of finding any remotely attractive test cases?

You would have thought that the best way to demonstrate the unfairness of an extradition treaty would be to look for people who were quite possibly innocent, or where there were doubts about them recieving a fair trial - sort of Michael Shields figures. But in fact, the two high-profile cases with respect to the US/UK treaty have been McKinnon, and the NatWest Three. In both cases, the people involved were really quite clearly guilty, in that nobody was seriously questioning that they had done what they were accused of, that what they were accused of was a serious crime, or that this crime had been committed against the USA. In both cases, the nature of the case against extradition was simply that, having committed a crime, the defendants wanted to get a more lenient sentence than the US courts were likely to hand out. Fair enough, but I really do think it's hard to turn this into a genuine civil liberties issue. We would all like to be tried in front of a jury that identified more with us than with the victims of our crimes, and to do our time in a local jail rather than an overseas one, but I don't see how this can be claimed to be a human right.

McKinnon is a particularly troubling case to me because it seems to me that he's been really badly advised by people who have an agenda with respect to the US/UK treaty, has been given the impression that his case for fighting extradition was much stronger than it really was, and as a result has ignored a number of plea bargain opportunities that he really should have taken (because he is, as I say, guilty). The original offer made to him was a 36 month jail term, the majority of which could have been served in the UK[1]. But this deal was rejected (I do not know on whose advice), and according to media reports, it was rejected out of a belief that to agree to a foreign plea bargain would involve "giving up his legal rights". This certainly looks to me like an argument premised on a piece of wishful thinking - ie, that there was something wrong with the US/UK treaty which would mean that it was not upheld in the courts. I don't think that view has ever been realistic.

If the original plea bargain had been accepted, Gary McKinnon would have been out of jail for a couple of years now. Instead, he's fighting a series of appeals, and his current judicial review is based on the fact that his mental health has been destroyed (in my opinion, largely by the case), and that therefore it would be a breach of his human rights to send him overseas and worsen his condition. Recall that in 2002 he was able to sustain an independent life and job and hadn't even been diagnosed with his autism-spectrum illness, whereas now he's suicidally depressed and dependent on his family. That's an absolutely awful thing to happen, and I don't think it can all be blamed on the horrible Americans.

Even if he wins, what he will win is the right to be tried for this offence in a British court. If he is found guilty (quite likely, as he did actually do the thing), a custodial sentence is definitely on the cards, as it's a serious offence and the UK judicial system needs to maintain its credibility with its US counterparts; what can't be got round here is that unauthorised access to and defacement of CIA computers is not apple-scrumping or funny UFO practical jokes, it's a real grown-up crime.

His main way out of jail, as far as I can see, rests on some form of diminished responsibility - in other words, on the fact that his life has been destroyed by having been turned into a largely pointless test case against the US/UK extradition treaty. This really is not a great state of affairs.