Judges delay decision in Nasa hacker case

The high court has finished its hearing into whether the home secretary was right in law to deny Gary McKinnon's appeal against extradition, but has reserved judgement for another day
Written by Tom Espiner, Contributor

High-court judges have deferred their decision in the case of Gary McKinnon, accused by the US government of 'the biggest military hack of all time', in a move that may push back the timetable for his extradition.

Judges Lord Justice Stanley Burton and Mr Justice Wilkie said on Wednesday at a hearing at the Royal Courts of Justice that they would reserve their judgement, but did not specify when a decision might be made. Court scheduling is traditionally difficult to predict.

"We propose to delay our judgement of judgements," Lord Burton said. "Judgement will be handed down sooner or later."

The two-day judicial review, which ended on Wednesday, was being held to determine whether the home secretary had been right to turn down McKinnon's second appeal against extradition. This appeal was turned down in October last year, despite McKinnon's having been diagnosed with Asperger's Syndrome.

Edward Fitzgerald QC, acting for McKinnon, told the court on Tuesday that former home secretary Jacqui Smith had made an error in law when she rejected his appeal. He also argued that McKinnon would be at serious risk of psychosis and suicide should he be extradited and imprisoned in the US.

However, Smith's decision to send McKinnon to the states was "harsh, but lawful and expected", Hugo Keith QC replied in court on Wednesday.

"Of course, it's understood his condition leaves him prone to mental-health issues, and suicide can be associated with this disorder," said Keith. "The condition should be viewed with sympathy, but the secretary of state is obliged to work within the law."

Keith said McKinnon's condition did not meet the necessary threshold to deny extradition on human-rights grounds. The lawyer pointed out that the case, which dates back to 2002, has caused stress for McKinnon, but that he had not attempted suicide or succumbed to serious illness.

"He must have feared his removal from the country was imminent," said Keith. "Despite his pre-existing condition, there have been no acute interventions in his medical career. Mr McKinnon has been able to survive the rigours of the past seven years."

The US system of penitentiaries gives detainees access to psychological support, Keith added. He also said a "portrayal of murder and gang rape is not an accurate portrayal of US supermax prisons," in response to Fitzgerald's assertion that a US prosecutor had told McKinnon that he could end up in a US prison as "the boyfriend of a very bad man".

At the hearing, Lord Burton said he would be interested in hearing an application for a judicial review of the Director of Public Prosecution's decision in McKinnon's case. The DPP decided in February not to prosecute McKinnon in the UK. This application would be heard soon, but not this week, said the judge.

"We're hoping that the Director of Public Prosecutions judicial review application can be heard within the next week or so," a spokesperson for McKinnon's legal team told ZDNet UK. The success, or otherwise, of that application will affect the timing of the high court's judgement in the review of the home secretary's decision.

McKinnon has been accused by the US government of hacking Nasa and military systems, including those of the Pentagon, and causing $700,000 (£420,000) in damage. McKinnon does not deny hacking the systems, but claims he was looking for UFOs, and has said he caused only minimal damage.

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