Nasa hacker closer to extradition after CPS refusal

Nasa hacker closer to extradition after CPS refusal

Summary: Gary McKinnon's hopes of avoiding extradition to the US now rest on a judicial review, following a decision by the CPS not to charge him under UK law

TOPICS: Security

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 US, under the extradition treaty, does not have to provide any evidence. The CPS could have asked to see the evidence, but it didn't do that

Karen Todner, solicitor

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.

Topic: Security

Tom Espiner

About Tom Espiner

Tom is a technology reporter for He covers the security beat, writing about everything from hacking and cybercrime to threats and mitigation. He also focuses on open source and emerging technologies, all the while trying to cut through greenwash.

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    So at anytime the US can simply demand the extradition of a UK citizen without a shred of evidence? So whatever controls, auditing, checks and balances on the UK Police are now MEANINGLESS since "stop and search" powers of the Police are nothing compared to the USA being able to bundle you into a plane staight over to the USA and rot in their jails with the UK completely IMPOTENT.


    And where is the EVIDENCE from the USA ? This isn't an impartial process. This isn't blind Justice, this is EXTREME US Justice. Emotional, irrational with self serving prosecutors looking out for publicity.

    No? then show us the EVIDENCE that he did SO MUCH damage to USA infrastructure/security!

    This is outragous for Gary, but also for anyone in the UK who believes in Justice!
  • He's guilty, by his own admission

    He has actually admitted to the crime, and as for the extend of the damage, isn't that why we have courts?

    Yes he has admitted hacking, but the USA are ballooning the case beyond facts and seemingly into fantasy.

    see (,1000001161,39515805-39001096c-20097966o,00.htm) and extract below...

    For example, we are led to believe that he accessed over 73,000 computers belonging to various military and aerospace organisations (this seems to have risen exponentially from the 90 odd he was accused of back in 2002). Now let's assume he only took 2 minutes to hack into each machine and spent 5 minutes trawling around looking for little green men and (if the various organisations are to be believed) deleting top secret files. Without any breaks in between for the mundane things in life like food, sleep and relieving bodily functions that would have taken him A WHOLE YEAR to achieve. I mean what the hell?

    So again USA, show us the evidence of what and how Gary did on all this and why it is such a big deal that he should be imprisoned for the rest of his life???

    Such a big difference in views from the British courts which given Gary's confession really do not think it is worth prosecuting him!

  • The place to check evidence is in courts

    Isn't that the point, there are so many things that are unproven, one way or another, that it needs to all be brought in to the open, and isn't that where the public forum of the courts are needed. No one is suggesting that Gary is going to be whisked of to Cuba held without trail, tortured a bit, before being secretly convicted. The whole case, and all the evidence, is going to be in the public arena, so if something odd is afoot we'll all find out about it.
  • Its about extradition

    Fundementally its about the ability of another country, in this case the USA being able to extridite a UK citizen without providing ANY evidence of wrong doing.

    I and Gary are UK Citizens, subject to UK law within UK Courts.

    I am happy for that. What I am NOT happy about is being subject to USA law, USA Courts in my own country.

    I cannot change US law, US Policy, US Courts or US Judges nor can I vote for their government.

    So I don't think it should be UP TO THE USA to decide whether Gary or any other UK citizen should be deported.

    It should be down to the UK Courts to decide and decide based on EVIDENCE.

    The USA have provided NO evidence and I do not have confidence that they can back up their reasons for extraditing Gary. If they could why don't they provide the evidence.

    What should happen is that the UK courts should demand and require evidence from the USA and then decide if he should be extradited.

    So I agree it should be with the (UK) Courts and this should be reviewing the evidence. But this hasn't happend and the USA haven't provided any evidence!
  • You don't need a vote

    Nick, he's confessed, I would say that is pretty damning evidence, isn't it? The crime was committed against systems in the US so why should he not be subject to US law? Are you saying that if you went on holiday in France and committed a crime then you shouldn't be subject to arrest and trail in France because you can't “vote for their government”?
  • Devils in the Detail

    Question is what has he confessed to versus what the Americans aledge.

    Given that they seem to suggest he does done the impossible and are threatening to lock him up for ever, "we" as in the UK shouldn't be rolling over but asking for evidence.

    Its kind of like confessing to speeding on the motor way and the US using that as a reason to charge him with murder.

    Note the US didn't have or need any confession from Gary to extradite him from the UK. All they had to do was Ask the UK. No proof. No evidence required. I just don't have that much faith in the USA legal system.

    And this isn't simply a Gary issue. It is a UK Issue since the US can do this with anyone in the UK, not just Gary.
  • Certainly a valid point

    I would certainly agree that the extradition safe guards are far too weak. On the other hand he is still here, so there are some. I'm not sure about your speeding analogy, I would tweak it a bit and say it's more like he was speeding, and the US claiming that he ran someone down but then refusing to reveal their name or any details about them, or where it exactly happened. I also think there is a lot of fearmongering about the possible sentence. Both sides have a vested interest in emphasizing the longest possible sentence he could face. Those after him want to make it clear just how bad his crime was, showing how important it is that he is extradited. Those defending him also want to emphasize how long his sentence could be, to show how unjust a sentence he could get if he is extradited.

    It's been an interesting little debate Nick but I think it's about time we bought it to a close or we could be on for days. I'll let you have the last word.
  • I Agree with you!

    I agree with all your points here! Until next time... Nick