If there is one thing that this case will be known for, it is that it forced Theresa May to use the Human Rights Act to stop an unfair extradition of mentally disabled man. For those of us who believe that the Human Rights Act is, on the whole, a good piece of legislation it was exquisitely ironic that one of its biggest critics was forced to use it for the purpose of sound reason. I promise i won’t mention the cat thing. Specifically Ms May used her discretion under article 3 of the Act which prohibits the UK from being complicit in degrading or inhuman treatment of a prisoner. The medical report into Mr McKinnon revealed that he was likely to do significant harm to himself if he was allowed to be extradited.
A little bit of background information, Mr McKinnon is accused of hacking into the Pentagon and White House security systems shortly after the 9/11 terror attacks. He claims that he was looking for evidence of UFO’s but the US claim it was an “intentional and calculated to influence and affect the US government by intimidation and coercion”. Mr McKinnon has also been diagnosed with Aspergers syndrome, which doesn’t necessarily excuse his behaviour, but does go some way to explaining it.
The extradition treaty between the UK and the US has many critics. They state that it is completely one sided, basically the give and take in the relationship is the US take British nationals and the British give them over. It’s a strange parallel with the Abu Hamza story I spoke about last week. It was done under the same treaty that the US is attempting to extradite Gary McKinnon with. It is also interesting to note that both these offences involved terrorism related activities and both had appeals on medical grounds. Not that I think either case was decided incorrectly, I think this is one that you can chalk up to that grey area of discretion that Human Rights allow.
It is now up to the Director of Public Prosecutions to decide whether or not to prosecute Mr McKinnon for the offences which were committed on British soil. This in my opinion is what should have happened in the first place instead of the 10 year jurisdictional debate that this case has been subject to. The irony is that if this case had been allowed to be considered by UK courts then the issue would probably have been over by now. Even if he had been found guilty it is unlikely any sentence would have lasted this long considering the mitigating factors.
One encouraging bit to note about May’s speech is her pledge to readdress and clarify the extradition agreement that we have with the US. Hopefully this will mean more cases being tried in Britain. I say that both as a budding barrister hoping it might mean more work for myself in the years to come but also as someone who thinks that if a crime is committed on British soil then it should be tried on British soil.
This case is indicative of the problems that the growing use of the internet is presenting. Now that crimes can be committed across boarders without ever physically moving it is difficult to work out the jurisdiction. Jurisdiction is key because obviously there are different laws which apply in different countries. Perhaps in the same way we have an international criminal court in Holland which deals with war crimes that need an independent judiciary we should establish some kind of court to deal with these issues. Countries could decide what rules, punishments etc would apply when an offence has been committed over the internet which crosses jurisdictional boundaries. It would stop cases like Mr McKinnon’s being dragged out as long as it has, and it’s still going on don’t forget. This type of change would require much more important people than myself to agree on the details but I’m putting it out there as an idea. Maybe it’ll catch on and they could name it after me!