House of Lords

Published August 6, 2008

McKinnon v Government of the United States of America

Before Lord Scott of Foscote, Lord Phillips of Worth Matravers, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury

Speeches July 30, 2008

A plea bargain offered by a foreign prosecutor to an accused person whose extradition was sought, particularly if offered during a regulated process of plea-bargaining, did not constitute an abuse of process unless it was so extreme as to amount to a threat of unlawful action which imperilled the integrity of the extradition process.

The House of Lords so held, dismissing an appeal by the defendant, Gary McKinnon, from the dismissal by the Queen’s Bench Divisional Court (Lord Justice Maurice Kay and Mr Justice Goldring) (The Times April 19, 2007) of his appeal from:

(i) a decision of District Judge Nicholas Evans at Bow Street on May 10, 2006, to send his case to the Secretary of State for the Home Department on the ground, under section 87 of the Extradition Act 2003, that his extradition to the United States of America would not be incompatible with his human rights, and

(ii) the Home Secretary’s decision of July 4, 2006, to order his extradition at the request of the Government of the USA on offences alleging that between February 1, 2001, and March 19, 2002, he had gained unauthorised access to 97 US Government computers.

Mr David Pannick, QC and Mr Ben Cooper for the defendant; Mr Edward Fitzgerald, QC and Mr Joseph Middleton for Liberty, intervening; Miss Clare Montgomery, QC and Mr Mark Summers for the US Government.

LORD BROWN said that the defendant was a British citizen aged 42, who, through his home computer identified US Government network computers, extracted the identities of certain administrative accounts and passwords, and installed unauthorised software which enabled him to access and alter data upon the US computers. He then deleted data from the 97 computers, including computers of the US Army, US Navy, US Air Force, NASA and the Department of Defense.

The defendant’s conduct was alleged to be intentional and calculated to influence the US Government by intimidation and coercion. The cost of repair was alleged to total US$700,000.

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