Nasa hacker's fate hangs in balance

Appeal Court judges hearing Gary McKinnon's extradition case have heard claims he was told he would 'fry' in New Jersey unless he co-operated with US authorities
Written by Colin Barker, Contributor

The fate of Gary McKinnon, known as the "Nasa hacker", is still hanging in the balance after his appeal against extradition to the US was adjourned at the Court of Appeal on Wednesday evening.

McKinnon's future is as uncertain as ever, following two days in court during which his defence team presented new evidence that it claimed meant his extradition (to face charges of breaking into and damaging US government computers) should be rejected.

The Court of Appeal is the court of last resort under UK law, and usually it will only find for or against the appellant. But the defence argued on Tuesday and Wednesday that evidence brought to light by the McKinnon case raised serious questions about the US government's case. It has urged the Court of Appeal to consider referring McKinnon's case back to the UK government or to allow a further appeal to the European Court of Human Rights, if it will not reject the extradition outright.

The evidence centred on what was or was not said to McKinnon when he was being offered a plea bargain. More well known in the US, and now also used on an informal basis 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, if McKinnon agreed to co-operate with them, the US authorities said they would agree to a reduced sentence of three years or less. 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 be agreed on this part, but what was said next became the main 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 he did not agree to the deal there would be no chance of McKinnon serving his sentence in the UK near his friends and family.

This quickly became known as the "fry" statement, which the defence said could be taken to mean a threat on McKinnon's life should he be handed over to New Jersey instead of Virginia: the two states where McKinnon was alleged to have damaged IT systems.

In fact, if it was a threat it was something of an idle one. Although both states have the death penalty, New Jersey has not executed anyone in 20 years, while Virginia is still active in executions. In any case, under European law McKinnon cannot be extradited from the UK to the US if there is a risk of execution.

Despite this, Lawson argued that the overt nature of the threat was an infringement on McKinnon's human rights and so could be a matter for the European Court of Human Rights, as was the threat to withdraw the possibility of serving his sentence in the UK.

The prosecution barrister, Max Summers, dismissed the points immediately. None of the evidence on the "frying" allegation could be allowed into court since any words spoken during the alleged offer were only done so in confidence.

There is no automatic right for an extradited prisoner to serve a sentence back in his own country and the majority do not, especially those extradited from the UK to the US. As it was, the US was in no position to refute the allegations over "frying" since none of the relevant American staff involved are currently in the UK, let alone in court this week.

If this evidence was to be considered at all, argued Summers, then the US government would need notice and time to get witnesses organised and so a recess would be required.

After another hour of discussion, in which defence and prosecution and the two judges hearing the appeal discussed the legal consequences of taking the McKinnon case into new legal territory for an Extradition Hearing, court was adjourned at 4.20pm on Wednesday for the Appeal Court Judges to consider the options.

They could find in favour of the US authorities, meaning McKinnon would soon travel to the US, or they could uphold the appeal and allow McKinnon to go free. Alternatively, they could refer the case back to Home Secretary John Reid, who decided in July 2006 that the extradition should go ahead, or reject McKinnon's appeal but allow a further appeal to the European Court of Human Rights. A decision is expected next week.

McKinnon himself did not attend the appeal, and saw a doctor on Wednesday following heart palpitations

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