We’re overjoyed that President Obama has now given the green light for Britain to refuse to extradite, as reflected in his announcement during his joint May 2011 Worldwide press conference with our Prime Minister David Cameron, ‘that any decision with regard to Extradition in my son Gary McKinnon’s case is the U.K’s alone and that the U.K’s decision will be respected and accepted by America. BBC link here: http://www.bbc.co.uk/news/uk-13551467
My son Gary has effectively lost almost one quarter of his life. However since the press conference with President Obama and David Cameron, everyone can now see a positive end in sight.
Despite being stopped in the street and receiving mountains of congratulations from people I have never met, I am keen to ensure that before the Home Secretary makes her decision, she is personally well armed with all of the facts, especially relating to the High Bar set by the HRA being lowered in Gary’s case. It is to this end that my statement below is being officially served on the Home Office by Gary’s excellent legal team, prior to their own additional well informed submissions.
Six Reasons that theHigh Bar set by the HRA does not applyto and can be Lowered in Gary’s case; Plus further reasons that Gary meets even the High Bar set by the HRA.
GARY’S CASE IS NOT EXCLUSIVELY A FOREIGN CASE:
Gary’s case is not exclusively a foreign case. The High Bar set by the HRA can be lowered when the case is not exclusively a foreign one.
This is why Lord Justice Burnton said in 2009 that (unlike the majority of extradition cases) there was a choice of venue for trial in Gary’s case.
Gary is British and was physically in the U.K at all times. He used British servers, British Telecom lines and was questioned only by British Police Officers. Having Aspergers Gary’s vulnerability and naivety led to him being questioned by the police without him having a lawyer present. The CPS say they have proof of a section 2 computer misuse offence and were keen to prosecute Gary after his arrest in March 2002. However as confirmed to Gary’s solicitor by CPS lawyer Russell Tyner; the CPS were ‘ordered’ from the very top, to stand aside and allow America to deal with Gary. This is surely an abuse of process, resulting in Gary,a vulnerable man with serious mental health issues being victimised for his naivety as Gary has effectively been targeted by the authorities. The Home Secretary should hopefully have been informed that as Gary is British and as Gary’s case is not exclusively a foreign case, that the High Bar set by the HRA can be lowered.
The Home Office have said that the issues including the choice of venue have already been considered by the courts. However the judgements and the issues which include the choice of venue were made without the courts having the benefit of both the compelling new evidence served on the Home Office in 2010 and in 2011 and the 2010 Equality Act re-Disability ‘Duty to make Adjustments’.
As the Home Office agreed to re-consider the evidence and specifically requested that all previously unseen and new evidence be submitted to the Home Secretary for her consideration; it seems clear that all of the above must now be taken into consideration and any new decision must be based on it. As the bar set by the HRA Thresholdcan be loweredin Gary’s case, the Home Secretary could now re- rule on the choice of venue.
The compelling medical evidence served on the Home Office in 2010 and 2011 includes Psychiatric assessments by Professor Murphy and Dr. Vermeulen, plus evidence recorded in Gary’s NHS recordsre-anxiety, depression and of Gary being referred to a neurologist as long ago as 1983 and in 1994, because he was losing his intellectual faculties, so much so that it was feared he may have a brain tumour. This is all recorded in NHS records long before any of Gary’s legal difficulties.
New evidence has also been served backed up by NHS records, of serious mental illness existing on both sides of Gary’s family spanning at least three generations. Gary’s is clearly a unique case.
The court’s decisions were also made prior to the 2010 Equality Act re-Disability being introduced, which includes a legal ‘duty to make adjustments’ to avoid someone with a disability (including Aspergers) suffering a substantial disadvantage. The DPP refused to try Gary in the U.K prior to the new medical evidence submitted to the Home Office in 2010 and 2011 and prior to the 2010 Equality Act ‘Duty to Make Adjustments’ coming into effect. Marc Kirby the head of the High Tech crime unit who arrested Gary in 2002 said in this relatively recent interview that Gary could and should still be tried in the U.K. See link: http://www.theregister.co.uk/2010/05/10/mckinnon_support/
THE BAR CAN BE LOWERED IF THE OFFENCE IS LESS SERIOUS : The High bar set by the HRA can be lowered if the offence is less serious than murder for example
Gary’s alleged crime is significantly less serious than murder, rape or crimes of extreme violence,so for this reason, (and including reason one as detailed above, plus‘(Duty to Make Adjustments’) I believe the high bar set by the HRA can belowered in Gary’s case.
Gary’s crime was one of Aspergers/autistic obsession and eccentricity and unlike the case of the Russian hackers in the case below, there was no malicious intent on Gary’s part and no attempt to gain financially or otherwise. The U.K and the U.S government left Gary on the internet for three and a half years after his arrest in the U.K in March 2002 (and after his indictment in the U.S in 2002) making it clear that Gary was not regarded as any threat whatsoever by either Government, so his crime could not have been regarded as serious by either.
THE HIGH BAR SET BY THE HRA CAN BE LOWERED (re-disproportionate):
A Precedent has been set in the case below where the British Judge refused to Extradite/bring in Russian Hackers to England as it was ruled disproportionate. In order to hack into the server keylogger software had to be installed by the Russian Hackers and an administrator password snarfed. That system was therefore far more secure than the US Military computer systems which Gary, (and presumably lots of other people) had access to, which had the default Administraror username ("Administrator") and, by default, no passwordwhatsoever.
PRECEDENT SET: On the 18th October 2006 Mr. Jonathan Hirst QC, sitting as a Deputy Judge of the High Court, Queen's Bench ruled that “costs would have to be incurred anyway to upgrade the system to an adequate configuration. Further the cost of the new server, was so trivial that it was utterly disproportionate to [Extradite] bring foreign defendants in”.
Miss Dohmann....argued that no real damage was caused to the Claimants. The Particulars of Claim plead as follows:
53.... The Claimants have suffered loss and damage in a sum to be fully particularised following disclosure and/or expert evidence herein, but including:
53.1 the cost of a new server... ;
53.2 the costs of investigations and ancillary work carried out by IT consultants... ;
53.3 the cost of investigations by the forensic computer experts... . Deputy Judge Jonathan Hirst ruled: These claims could not be sustained. Ashton's computer system was so inadequately protected from outside interference, that costs would have to be incurred anyway to upgrade the system to an adequate configuration. Further the cost of the new server was so trivial that it was utterly disproportionate to [Extradite] bring foreign defendants in. Judge Hirst also ruled that causing them to have to upgrade their computer equipment did not constitute damage, as they would have to have upgraded their inadequately protected equipment in any case, to an adequate configuration.
The High Tech Crime Unit who arrested Gary in March 2002 (after they had been monitoring Gary's computer for several months) said that Gary was looking at a British sentence of approx. 6 months community service, and both the U.K and the U.S government left Gary on the internet for three and a half years after his arrest in the U.K in March 2002 (and after his indictment in the U.S in 2002) making it clear that Gary was not regarded as any threat whatsoever by either Government, so his crime could not have been regarded as serious by either and Gary did not abuse this trust placed in him.
GARY MEETS EVEN THE HIGH BAR SET BY THE HRA:
Even in cases where the high bar set by the HRA is thought to apply it is extremely rare to reach that bar.
However in Rot v District Court of Lublin, Poland EWHC 1820 (Admin) decided by Mitting J on 23 June 2010. In paragraph 13 of his judgment Mitting J said:- "The question must... be addressed and answered...: would the mental condition of the person to be extradited make it oppressive to extradite him. Logically, the answer to that question in a suicide risk case must be no unless the mental condition of the person is such as to remove his capacity to resist the impulse to commit suicide, otherwise it will not be his mental condition but his own voluntary act which puts him at risk of dying, and therefore may make it oppressive to extradite him”. Although the High Bar set by the HRA can be lowered in Gary’s case, Professor Declan Murphy’s conclusion re-Gary concurs with Justice Mitting’s definition of Gary’s suicide risk satisfying even the High Bar Set by the HRA when the above applies. Professor Murphy said in his report on Gary (served on the Home Office in November 2010) “Gary has very significantly greater risk factors to suffer from anxiety and stress combined with depression and for them to be much more severe because of his pre-existing ASD and long standing history of anxiety which pre-date any legal difficulties. The greater ‘contribution’ to Gary’s suicide risk is his ASD. That is, he now has a fixed autistic like idea which is currently unshakeable that his best outcome is to take his own life”.
Professor Murphy has already determined that the relevant issue (suicide likelihood) has been found to exist, linked to the condition as it existed and continues to exist. (Aspergers is a lifelong condition that does not get better. There is no cure). Professor Murphy’s existing assessment meets even the High bar set by the HRA, in addition to assessments by the other Doctors who have personally assessed Gary, including the most recent assessment by Dr. Vermeulen.
THE RISK THAT GARY WILL SUCCEED IN TAKING HIS LIFE WHATEVER STEPS ARE TAKEN. unlike the case below Gary’s case is not exclusively a Foreign case and including the previous evidence I have given, the threshold is lower in Gary’s case. However Mr Janson’s extradition was refused to Latvia, his own country, for the reasons set out below.
“The third consideration in what was referred to as ‘a foreign case’ is that the Article 3 threshold is particularly high, simply because it is a foreign case”.
In Latvia Mr Jansons believes he will face assaults, attempts to kill and rape him. He is convinced that if he is sent back to Latvia his life is over." Dr Drayer is unable to express an opinion as to the effectiveness or otherwise of prison arrangements in Latvia, it is nevertheless, of course, within his competence and it is unchallenged that he can assess what the appellant's mental state is and what he is able to predict will be the consequences of his return to Latvia, not because there may or may not be adequate arrangements when he gets there, but from the very fact of his extradition.
In Professor Murphy’s evidence/ report on Gary, Professor Murphy expresses suicide not as a risk but as a certainty that linked to his mental state Gary will commit suicide if extradition is ruled on or occurs, as “he has a fixed autistic like idea which is currently unshakeable that his best outcome is to take his own life”.
Professor Murphy said: “The greater contribution to Gary’s suicide risk is his ASD. That is, he now has a fixed autistic like idea which is currently unshakeable that his best outcome is to take his own life”. Professor Murphy’s evidence also concurs with the statement in Justice Mitting’s Judgement that if the mental condition of the person is such as to remove his capacity to resist the impulse to commit suicide.... it may make it oppressive to extradite him”.
As in the Janson v Latvia case: My sonGary McKinnon also believes he will face assaults and attempts to kill and rape him and is convinced that if he is extradited to America his life is over. Gary has more reason to believe this than Mr Janson as the present Governor of New Jersey Christopher J Christie stated publicly when announcing the indictment in 2002that he’d“like to see McKinnon Fry”. (as reported worldwide in Associated Press).
The terror Gary has lived under since then cannot be over estimated.
Gary would rather die by his own hand in his own country, than to endure the terror of being dragged thousands of miles from his home and family to a country where an American Governor makes statements like ‘wanting to see McKInnon Fry’. America is not Gary’s own country, whereas Mr Janson was facing extradition to his own country being Latvia and the bar in Mr Jansons case was higher as he was not British and Mr Janson’s case was exclusively a foreign case.
In addition Gary also has Aspergers and mental health issues and an NHS history of anxiety, depression and mental health issues preceding any legal difficulties. Being taken thousands of miles away to a country which is not his own would make it more oppressive to extradite Gary.
Americans have to prove that someone is a fugitive before they can apply to extradite.
Gary cannot be ‘returned’ to America as he has never been there and has never ran from there and is not a fugitive. Gary clearly does not meet the definition of a ‘Fugitive’ and cannot be ‘returned’ and both words are being used disingenuously by our courtswhen a British citizen who was physically in this country at all times (including during the alleged crime), exercises’ his legal right to fight extradition. As in the Janson case Professor Murphy and DR. Vermeulem among other eminent Psychiatrists and Psychologists including Professor Simon Baron Cohen, have likewiseassessed what Gary’s mental state is and what they are able to predict will be the consequences of Gary being extradited, not because there may or may not be adequate arrangements in America, but from the very fact of extradition. Dr Vermeulen told us that if Gary was extradited that he believed it a certainty that Gary would succeed in taking his own life. (The medical evidence in Mr Janson’s case was unchallenged).
Paragraph 48: oppression may be established where there has been substantial delay since the offence for which extradition is sought was committed.
One of the Judges in Gary’s case said re-passage of time “It is not as though it was ten years”.Well it is nowten yearssince Gary’s alleged offence was committed. Including all of the evidence above and the fact that Gary has been diagnosed with severe depression, is suicidal and has Aspergers/Autistic Spectrum Disorder and other mental health issues, and including the 2010 Equality Act ‘Duty to Make Adjustments’ it seems clear to any right minded person that it would be oppressive to extradite Gary ten years on from the offence.
I note that a precedent has virtually been set in regard to mental health in the case of Mrs Beatrice Tollman an American citizen fighting Extradition to her own country ‘America’ , when in 2006 a British court refused to extradite Mrs Tollman to America “her own country” because of her fragility, depression and state of mind.
Unlike Gary, I believe that Mrs Tollman had no personal history of mental illness existing prior to her legal difficulties and no history of mental illness in her family. As Gary is a British citizen and his case is not exclusively a foreign one and including all the evidence and including examples given of the high bar set by the HRA being able to be lowered in Gary’s case, I believe gives Gary a significantly stronger case than Mrs Tollman.
Extradition of Mrs. Tollmans husband Mr Stanley Tollman to America “his own country” was also refused by British Courts in 2007, despite Mr Tollman also being an American citizen. Mr and Mrs. Tollman were friends of Mrs Thatchers
(In 2007 a British Court in Northern Ireland refused to Extradite suspected IRA terrorist Roisin McAliskey who was accused of blowing up a British Barracks in Germany.)
Hopefully it does not take the millions of dollars Mr. Tollman paid to the U.S Government, or having good connections, or being Irish, American or Latvian,to prevent Extradition from Britain taking place, as it seems British citizens of previous good character and often with significantly more rights, are nevertheless regularly being thrown to the dogs, even when their alleged crimes are non violent and they have not gained or even tried to gain financially. Gary could not possibly have a fair trial in America when the now Governor of New Jersey said in 2002 he’d like to see McKinnon ‘FRY’ and in May 2011, the American Attorney GeneralEric Holderpronounced Gary guiltyon television (prior to any trial) and simultaneously falsely announced that the alleged damages were one million dollars.
As Mr Holder must know full well, the alleged damages are listed in court papers as 700,000 dollars which was equal to approx. four hundred thousand pounds in 2002 and computer expert Professor Peter Sommer from the London School of Economics believes that even that is an exaggeration. Why did the DPP/CPS refuse to try Gary in the U.K, yet was happy to try Aaron Caffrey accused of hacking into American Military systems and bringing Port Houston to a halt immediately after 9/11. Why was the DPP/CPS happy to try the British hacker in the link below who broke into American systems and despite fraud and stealing a massive 7.4 million pounds, was not extradited but was tried in the U.K this year in 2011 and was sentenced to two years in a U.K prison. http://www.thisissouthdevon.co.uk/news/Prison-hacker-stole-online-poker-chips/article-3349079-detail/article.html Why is an example being madeof a vulnerable man such as Gary who was arrested in March 2002 prior to the 2003 U.K/U.S Extradition Treaty even being written and has effectively lost ten years of his life. Gary was just over 35 years old when he was arrested and has had a sentence of nine years of mental torment.
Janis Sharp (Gary McKInnon’s Mum)
The Justification for Extradition was based mainly on British Police Interviews given in March 2002 by Gary a vulnerable man with Aspergers without a lawyer being present.
American Prosecutor Paul McNulty has said in recent interviews that if Gary is extradited, the most difficult thing to prove would be the alleged damage.
However as evidence of five thousand dollars of damage on each machine was legally required to be shown by America in order to make Gary’s crime Extraditable, this statement by Mr McNulty also made by another American prosecutor named Christie, is of great concern.
The Extradition case against Gary has been a travesty of Justice from the very beginning.
CHOICE of PSYCHIATRIST and ‘DUTY to MAKE ADJUSTMENTS’. Under the terms of THEEQUALITY ACT 2010 c. 15Part 2 Chapter 2Adjustments for disabled persons Section 20 subsection 3. “Duty to make adjustments”
I understand that the Home Secretary, The Attorney General and the DPP all have a statutory "duty to make adjustments" in Gary’s case. In order to avoid Gary suffering a substantial disadvantage,only a Psychiatrist with the required expertise in bothAspergers and suicide risk shouldbe used toassess Gary for suicide risk.
We believe that a joint assessment and a report written by a Psychiatrist who does not have the required expertise in Aspergers would place Gary at a substantial disadvantage when his life depends on it.
A suicide risk assessment of a person with Aspergers by an assessor without the required expertise in ASD is inherently flawed, and this flaw is not cured with an Aspergers qualified assessor observing or advising.
Lord Maginnis raised this via PQ’s in the Lords and in the response given, the Home Office conceded that a ‘Duty to Make Adjustments’ in Gary’s case may arise’ and that Gary has legal representation.
However it is clear that a Duty to make Adjustments’ has already arisen in Gary’s case, in many areas, which includes regard to the choice of Psychiatrist appointed and the choice of venue for trial. In light of President Obama’s announcement that the decision on Gary is exclusively a British decision that America will accept and will not challenge.... and in light of the new evidence served on the Home Office in 2010 and 2011 and including the 2010 Equality Act re-Disability ‘Duty to make Adjustments’ and that the threshold re the HRA is lowered in Gary’s case: The Attorney General/DPP could now order a U.K Trial and could charge Gary for the section 2 Computer Misuse offences the CPS say they have proof of and the courts could take into account the full extent of all of the allegations made by the American authorities.
Unlike Mr & Mrs Tollman, Roisin McAliskey and Mr Janson, Gary is a British citizen and can be tried in the U.K and has never tried to avoid trial but merely wishes to be tried in his own country as is his right under the Magna Carta which is still valid to this day.
Gary’s crime was one of autistic obsession and eccentricity and unlike the case of the Russian hackers, there was no malicious intent on Gary’s part and no attempt to gain financially or otherwise.
Gary searched for evidence of UFO’s and left cyber notes warning the U.S that their security was totally inadequate and that they should do something about it and that he would continue to disrupt by leaving cyber notes until someone from the very top listened and did something about their lax security. Gary also left a polite cyber peace protest.
Even the U.S prosecutors including Paul McNulty said that Gary’s motives were difficult to understand as he did not try to gain financially or otherwise. No Precedent can be set: As Gary has the lifelong condition of Asperger’s Syndrome, and has NHS records proving Mental Health issues pre-any legal difficulties; refusing to extradite Gary would not set a precedent as no one can invent a personal history of mental illness, or of serious mental illness on both sides of their family spanning three generations, all backed up by NHS records. This is unique to Gary so refusing to extradite would not set a Precedent. (Gary was also in the U.K at all times).
We’re so happy that at last an end to Gary’s ten years of mental torture is in sight, for a crime that in 2002 the High Tech Crime Unit said would likely attract a sentence of 6 months community service, and that he and we his family can have our lives back again.
Gary is a vulnerable British citizen who has no criminal record, has never hurt anyone, has never tried to avoid responsibility, but has merely asked to be tried in his own country.