The Crown Prosecution Service has decided it will not prosecute self-confessed Nasa hacker Gary McKinnon in the UK, edging him closer to extradition to the US.
McKinnon's diagnosis with Asperger's syndrome, a condition on the autistic spectrum, had not been taken into account in the decision, a Crown Prosecution Service (CPS) spokesperson told ZDNet UK on Thursday.
US authorities last year won the extradition of McKinnon to face charges of breaking into 97 military and Nasa computers. In December, McKinnon's legal team sent a letter to the CPS in which he confessed to offences under section 2 of the Computer Misuse Act, in an attempt to be prosecuted in the UK rather than the US.
McKinnon faces up to 70 years in a maximum security prison if convicted of hacking charges under US law. In a statement regarding its decision, the CPS said the offences McKinnon admitted to in his confession, including the unauthorised access of a computer system, are not as serious as the charges US prosecutors have levelled against him.
"We identified nine occasions where Mr McKinnon has admitted to activity which would amount to an offence under Section 2 of the Computer Misuse Act (unauthorised access with intent)," Alison Saunders, the head of the CPS organised crime division, said. "Although there is sufficient evidence to prosecute Mr McKinnon for these offences, the evidence we have does not come near to reflecting the criminality that is alleged by the American authorities."
Saunders made the decision on McKinnon in consultation with Keir Starmer, the director of public prosecutions, the CPS spokesperson said.
US prosecutors allege that McKinnon was politically motivated in his hacking attack on US army, navy, airforce and Nasa systems in 2001. They also allege that he caused $700,000 (£500,000) worth of damage by deleting files, and that he disabled the function of a warship.
McKinnon has never denied accessing the systems, but he does deny causing any damage. He claims to have been searching for evidence of UFOs.
The CPS does not have access to the evidence held by US authorities that could allow it to make more serious charges against McKinnon, his solicitor Karen Todner told ZDNet UK on Thursday.
"The reason the CPS doesn't have the evidence is that the US, under the extradition treaty, does not have to provide any evidence," Todner said. "The CPS could have asked to see the evidence, but it didn't do that."
The CPS spokesperson confirmed that the department had not asked to see any evidence. US prosecutors are not required to show any prima facie evidence to secure the extradition of a UK citizen, under the terms of the US/UK Extradition Treaty, 2003.
"The harm occurred in the US, affecting infrastructure in the US, the witnesses are located in the US, the bulk of the evidence is in the US, and the task of gathering evidence from the US is considerable," the service's spokesperson said. "US prosecutors were able to frame charges reflecting the extent of Mr McKinnon's criminality."
Todner said that the next step would be a High Court review of home secretary Jacqui Smith's decision to turn down McKinnon's appeal against extradition last year. A date has not yet been set for the review, as it hinged on the CPS decision. Todner expects it to be scheduled in April.
Gary McKinnon was not available for comment at the time of writing. According to Todner, he was still hopeful that the High Court review might save him.
McKinnon's mother, Janis Sharp, criticised the UK prosecutors for not taking his health into account in its decision.
"I'm heartbroken at the lack of compassion shown towards my desperately vulnerable son," said Sharp. "Gary is a gentle man with Asperger's, not a dangerous terrorist. His obsessions led him to search US computer systems. Wrong? Yes. But extraditing him to a high-security prison, knowing he won't survive — surely no-one can honestly believe that punishment fits the crime?"
Graham Cluley, senior technology consultant at security company Sophos, said that the UK IT community had shown sympathy for McKinnon's plight. "The real question is should we really be making such an example of a guy who was apparently just a UFO conspiracy theory nut?" Cluley said in a statement.