Gary McKinnon, the man accused of hacking into the computer systems of Nasa and other US governmental organisations, has lost his appeal against extradition to the US, but according to his lawyers the judges in the appeal court "definitely left the door open" for a further appeal to the House of Lords.
The Court of Appeal took a dim view of the alleged coercion applied to McKinnon, saying that it "viewed with a degree of distaste the way in which the American authorities are alleged to have approached the plea bargain negotiations" with McKinnon.
McKinnon's hopes now rest on whether the House of Lords will allow a further appeal. While he has accepted that he hacked into US government sites, McKinnon has consistently denied causing serious damage.
According to McKinnon's solicitors, although the Court of Appeal turned down McKinnon's case on Tuesday, remarks made by the judges during the course of the one-day hearing, as well as the judgement, open the possibility that McKinnon could still appeal to the House of Lords. "There were questions about the way in which the US handled the appeal," a member of McKinnon's legal team told ZDNet UK. "This related to the plea bargain and the coercion applied."
The controversy centred around what was said to McKinnon when he was being offered a plea bargain by the US government. Plea bargains are common in US law but less common, and more informally applied, in the UK. A plea bargain is when the prosecution offers a reduced sentence or other incentive in return for a defendant agreeing to co-operate. In this case, the bargain was that if McKinnon agreed to co-operate with them, the US authorities would agree to a reduced sentence of three years (as opposed to a possible 15 to 20). They would also let him serve the sentence in a UK prison and not in an American "super, high-security prison", as Edmund Lawson, QC, for McKinnon's defence, put it.
All parties appear to agree on this part, but what was said next was the source of controversy in court. According to McKinnon and his counsel, a US member of the prosecution team then "threatened" McKinnon that if he did not agree to the bargain, they would push for the highest possible penalties and that he would be "turned over to New Jersey authorities to see him fry". And, the defence further alleged, that the US said if McKinnon did not agree to the deal there would be no chance of him serving his sentence in the UK near his friends and family.
McKinnon's hopes of the case being referred to the House of Lords are not high. The Extradition Act 2003 is a revised version of the original act, which was introduced in the wake of the attack on the World Trade Center and applies only to extradition to the UK from the US. No appeal against extradition has so far been successful and the UK government has no powers under that act to extradite US citizens to the UK.