Sunday, November 29, 2009

Why Tom Harris is wrong on Gary McKinnon

A couple of days ago, Tom Harris published this posting in which he basically took Alan Johnson's line that Asperger's Sufferer Gary McKinnon should be hung out to dry and be extradited to the United States for trial. I think he's wrong, as I have posted before for both humanitarian and legal reasons, and here's why.

Tom outlined what he saw as a series of myths in the debate about what should happen to Gary:

"MYTH #1: Computer hacking is not a serious crime.

Yes it is, and it causes millions of pounds of damage every year. People who hack into other people’s computers should be charged and tried. If convicted, the sentences should be severe.

The people supporting Gary acknowledge that what he did was wrong, and he admits it himself. I think that any punishment meted out should take into account the circumstances of the crime and the intent of the person who committed it. Gary McKinnon is not an international terrorist nor is he a threat to others. He suffers from a condition which gives him a tendency to obsessive behaviour combined with the brilliance to understand how to hack into seriously secure computers and deprives him of the ability to fully understand the consequences of his actions. These circumstances do not say to me "lock up and thow away the key."

MYTH #3: Asperger’s sufferers shouldn’t be extradited.

Why not? Would this argument be made in favour of an Asperger’s Syndrome sufferer who had committed a less “acceptable” crime, like murder or child abuse?

This is so completely irrelevant that it's almost not worth bothering with. Anyone committing these awful crimes would usually be brought to justice in the country where the offence was committed. Gary's offence was committed at home in London. One of the important points raised by Shami Chakrabarti on Andrew Marr this morning is that the extradidtion treaty is completely silent on what should happen when the criminal offence takes place here. What she says carries some weight because she is a barrister who understands these things. If the Treaty is silent, then Alan Johnson is talking nonsense about having to fulfil international obligations.

MYTH #4: The extradition treaty with the US is one-sided.

There is some truth in this, but because of the role of the US constitution, not the UK legislation itself. But are we saying that because of this, no British citizen should ever be extradited to America? If Gary Glitter’s extradition was demanded by the US authorities, would there be the same level of oposition on the grounds of a lack of reciprocity?

No, Tom, what we're saying is that someone in the UK Labour Government should have grown a backbone and told the Americans to get stuffed until they came up with a form of words which meant that the terms under which citizens could be extradited between tbe two countries were the same. Why did this craven Government fail to give us the same protection as an American would have? If we'd told George Bush that we weren't signing, would the Americans have let there be no provision for extradition? Of course not.

I tend to agree with what Liberty has to say about when a person should be extradited, taken from their website:

"# - A person should not be extradited to stand trial in a foreign country without evidence being presented in a British court to prove there is a basic (prima facie) case against them
# - If the crime is alleged to have occurred in whole or in part in the UK, then the person should not be extradited if a court here decides it is not in the interest of justice to extradite
# - A person in the UK should not be extradited for something that is not a crime in the UK. British justice should not be circumvented.

Fast-track extradition is justice denied."

What is not fair about that? And what would have been wrong with presenting that list on a take it or leave it basis to the US?

MYTH #5: McKinnon cannot expect a fair trial in America.

Nonsense. The US legal system is one of the fairest in the world and McKinnon will have his chance to plead his case in open court in exactly the same way as any US citizen. And the highest courts on this side of the Atlantic – including the Court of Appeal and the European Court of Human Rights – have already given McKinnon a fair hearing and have found against his request to remain in the UK.

Tom, you have got to be joking. The fairest in the world? I think not. Let me give you one example - Troy Davis, who has spent 18 years on death row for a crime for which the main witnesses for the prosecution have withdrawn their evidence.

Alistair Carmichael, Liberal Democrat MP for Orkney and Shetland, recently both visited Troy in prison in Georgia and hosted his family at the House of Commons last week. He has been to the scene of the crime and he is convinced that it would have been very unlikely that anyone would have been able to identify the perpetrator. If that's his judgement then that's good enough for me.

Alistair was also involved in the case of Kenny Richey, who was eventually released from prison in Ohio 10 years after evidence established an almost certainty that he was innocent.

I remember being horrified by the case of Louise Woodward who was convicted of murdering the baby in her care when she was working as an au pair. Even the prosecutor now admits that she would have been exonerated if tried today.

MYTH #6: McKinnon will receive an unduly harsh sentence.

Unlikely. This is from Corante Blog:

(Federal) sentencing guidelines are referred to in Lord Brown’s ruling, but they are rarely referred to in UK coverage. McKinnon was offered a plea agreement if he pleaded guilty to two of the seven charges.

From the ruling: “On this basis it was likely that a sentence of 3-4 years (more precisely 37-46 months), probably at the shorter end of that bracket, would be passed and that after serving 6-12 months in the US, the appellant would be repatriated to complete his sentence in the UK.”

That's irrelevant. The issue is whether he should be extradited, not how long he would serve. Even if that would be the case, 6-12 months plus the time leading up to a trial is a hell of a long time to subject a vulnerable man to detention in a foreign country, thousands of miles from his family. How can we be assured that he will be provided with the care that he needs? Familiarity is pretty much everything to an Asperger's sufferer and yet Alan Johnson thinks it's ok to send him to a foreign country where every single thing he smells, sees, hears, touches and tastes will be completely strange. It's an awful lot to put someone through when we have a judicial system in this country that's more than capable of dealing with them.

There's evidence from senior, credible psychologists that he's at risk of suicide if he is extradited and that his condition has significantly deteriorated since the start of this process. What sort of Government fails to protect a vulnerable citizen like Gary?

There are still two further points for the Government to answer: firstly, why has the Government not given Gary's legal team the usual three months to file their application for a judicial review?; secondly why did the US not ask for Gary to be extradited before the unbalanced extradition treaty was in place?

It's clear to me that there's certainly enough legal and medical evidence to drive a coach and horses through the Government's position on Gary McKinnon. It's also clear that any other Government would take a different view.

I just hope that in some way common sense prevails and that Gary is not extradited to the US. That would be a terrible injustice.

1 comment:

subrosa said...

Good post Caron. Some of Tom Harris's remarks would be laughable if the subject matter wasn't so serious.

I'm afraid I don't have a link, but I have read on a legal blog that Jack Straw can refuse to send Gary. He refuses. Tom knows that but wishes to ignore it.


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