At an appeal hearing this week his lawyers
argued that McKinnon's human rights were breached by a plea
bargaining process instigated by US authorities. They will make the
same argument to Home Secretary John Reid if he loses his current
appeal.
"The Secretary of State has an inherent
discretion to consider someone's human rights under the new
Extradition Act," Karen Todner, McKinnon's solicitor, told
OUT-LAW.COM. "We are now going to go back to the Secretary of State
and ask him to reconsider his position in relation to Gary."
Todner said that the Home Secretary could
over-rule the courts and prevent McKinnon from being extradited to
the US on the basis of the alleged human rights abuse.
McKinnon is the hacker who broke into the US
military and NASA computer systems in 2001 and 2002, where he
claims he saw evidence of alien life. McKinnon broke into the
systems using just a dial up connection and default passwords.
McKinnon has admitted the offences and said
that he wants to stand trial in the UK, but the US has been seeking
his extradition, where prosecutors have threatened a jail term of
decades.
McKinnon lost his case to resist extradition,
and Home Secretary John Reid signed his extradition order last
summer. He appealed, and his hearing in the Court of Appeal took
place this week.
McKinnon's lawyers introduced an entirely new
argument in the hearing, based on a secret plea bargain negotiation
that took place in 2003.
"We were contacted by the American authorities
and invited to discuss a plea bargain for Gary to go back
voluntarily, so not to oppose extradition but simply to go back
voluntarily to the US," said Todner. "If he went voluntarily they
would allow him to receive a much shorter sentence and they would
ensure he would be repatriated to England to serve the rest of his
sentence very quickly."
Early repatriation to the UK would be crucial
because McKinnon would in that case be eligible for much earlier
parole in the UK than in the US. "But they made it clear that if he
didn't co-operate that he would receive what they would consider to
be a very lengthy sentence and he would not be repatriated," said
Todner. The shorter sentence would have been three or four years,
but the longer sentence was up to 12 years, she said.
Both parties agreed that the negotiations
would never be brought up in court, but Todner said they were
introducing it now because she said that the US authorities had
used the information in a previous element of the case.
McKinnon's lawyers argued that elements of the
plea bargaining process were in fact an abuse of his human rights
as laid down by the Human Rights Act. "We argued that that was
coercive plea bargaining, that his rights to repatriation and
therefore his rights under Article 8 of the Human Rights Act, which
is the right to a private and a family life, could be breached
because they have already said before he even gets there that he
won't be repatriated," said Todner.
"Gary has the right to have his repatriation
to this country considered fairly and not arbitrarily and
prosecutors have already said that because he objected to the
extradition they will not allow his repatriation to take place, and
we have argued that that is an abuse of the extradition process,"
said Todner.
The lawyers cited a precedent from Canada,
Cobb v USA, in which US prosecutors were found to have
abused the human rights of suspects in Canada by threatening higher
sentences for those who did not go to the US voluntarily.
Todner said that even a Canadian case could
influence a UK decision. "We're all bound by the Convention on the
Transfer of Prisoners, so we do take account of cases abroad,
particularly in countries like Canada; we do listen to their
cases," said Todner.
The Court of Appeal is expected to announce
its verdict soon, possibly next week.
