CPS refuses Nasa-hacker UK prosecution

The Crown Prosecution Service has decided not to prosecute self-confessed Nasa hacker Gary McKinnon in the UK.

Despite growing support for McKinnon from parliamentarians and legal experts, the CPS on Thursday announced that it would not prosecute McKinnon here.

McKinnon and his legal team had hoped that the hacker's diagnosis with Asperger's Syndrome, a condition on the autistic spectrum, would allow the CPS to prosecute on the grounds of public interest.

However, the CPS said that it had insufficient evidence to prosecute McKinnon here. The reason that the CPS doesn't have the evidence is that it didn't ask for it from the US, a CPS spokesperson told ZDNet UK on Wednesday.

"The US wishes to retain jurisdiction," said the spokesperson. "It's reasonable to assume the US wouldn't assist in the provision of evidence as they wish to retain jurisdiction."

McKinnon stands accused by the US of hacking into 97 military computers and causing $700,000 worth of damage. McKinnon has never denied accessing military systems, but denies causing damage -- he has always claimed to have been searching for evidence of UFOs.

Due to the terms of the extradition treaty the UK has with the US, the US does not need to provide prima facie evidence of any wrongdoing to secure an extradition of a UK citizen. However, the CPS prosecutors code requires that in determining to prosecute a person the CPS must first gather sufficient evidence, before going on to decide whether it is in the public interest to prosecute. The CPS didn't have the evidence, so regardless of McKLinnon's Aspergers', the CPS decided not to prosecute.

If extradited to the US McKinnon faces a jail term of up to seventy years -- effectively a life sentence, as he is in his forties now. A UK prosecution would effectively have saved him from that.

The CPS spokesperson said that in reaching its decision the CPS had taken into account that "the harm [done by McKinnon] was in the US" -- even though it had seen no evidence of harm -- that the "witnesses were located in the US," that "the bulk of the evidence is in the US" -- what evidence? -- , and that "US prosecutors had been able to frame charges reflecting the extent of Mr McKinnon's criminality" -- surely that is judging someone guilty before seeing any evidence?

McKinnon's hopes are now pinned on a judicial review of the Home Secretary's decision not to halt the extradition. The date for the appeal has not yet been set, McKinnon's solicitor Karen Todner told ZDNet UK on Thursday, although Todner expects it to be set for April.

There is more information I've gathered -- I'm going to write a news story as well as this blog post, so please take a look at it when the article is published later this afternoon.