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Gary McKinnon (Extradition)

Oral Answers to Questions — Foreign and Commonwealth Office – in the House of Commons at 3:34 pm on 1st December 2009.

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Photo of David Burrowes David Burrowes Shadow Minister (Justice) 3:34 pm, 1st December 2009

(Urgent Question): To ask the Secretary of State for the Home Department if he will make a statement on his decision not to intervene to stop Gary McKinnon's extradition to the United States.

Thank you, Mr. Speaker, for allowing this urgent question on behalf of my constituent.

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Photo of Alan Johnson Alan Johnson The Secretary of State for the Home Department

Gary McKinnon is accused of serious criminal offences. He is alleged to have repeatedly hacked into US Government computer networks over a period of 13 months, including 97 US military computers from which he deleted vital operating systems and then copied encrypted information on to his own computer, shutting down the entire US army's military district of Washington's computer network for 24 hours. During interviews under caution, Mr. McKinnon admitted to much of the conduct he is accused of.

A great deal has been made of the perceived imbalance in UK-US extradition arrangements in respect of probable cause versus reasonable suspicion. While I am clear that no such imbalance exists, as Mr. McKinnon has admitted the conduct which has given rise to the extradition request, this issue is academic in his case. This aside, under the terms of the Extradition Act 2003, I can prevent an extradition only in very specific circumstances: where the person in question could be sentenced to death if convicted; where there is a chance of that person being tried for crimes committed before that extradition which were not specified in the extradition request; or where the person has previously been extradited to the UK from another country, or transferred here by the International Criminal Court, and no consent has been given to their being extradited elsewhere.

Outside of the statutory extradition scheme, the courts have made it clear that the only circumstances in which I could prevent extradition would be where the evidence demonstrates that extradition would be a breach of human rights. If it would breach human rights to proceed with extradition, I would have to halt proceedings. If it would not, it would be unlawful for me to do so.

Mr. McKinnon has challenged his extradition in the district court, the High Court, with the Law Lords, and in the European Court of Human Rights, all of whom have ruled that the extradition should go ahead. Following the diagnosis of Asperger's syndrome in August 2008, he made fresh representations to the then Home Secretary claiming that because of his medical condition his extradition would breach the European convention on human rights. The then Home Secretary decided in October 2008 that the evidence Mr. McKinnon submitted did not meet the threshold needed to constitute a breach of the ECHR. Mr. McKinnon challenged in the High Court this decision and the decision by the Crown Prosecution Service that there were no grounds for him to be tried in this country.

On 31 July 2009, the High Court handed down both judgments. In its judgment on the Director of Public Prosecution's decision that Mr. McKinnon should be tried in the US, Lord Justice Stanley Burnton said this:

"It is true that the Claimant's offending conduct took place in this country. However, it was directed at the USA, and at computers in the USA; the information he accessed or could have accessed was US information; its confidentiality and sensitivity were American; and any damage that was inflicted was in the USA. The witnesses who can address the damage done by his offences are in America...However, it is not for this Court to decide where he should be prosecuted. The decision is that of the DPP. As appears from the preceding paragraphs of this judgment, he cannot be faulted for considering that, other things being equal, the Claimant should be prosecuted in the USA."

He expressed the view that it would be

"manifestly unsatisfactory in the extreme" for Mr. McKinnon to be tried in the UK and refused permission for this aspect to be judicially reviewed.

Secondly, the Court ruled on 31 July that the decision of the Home Secretary that the extradition of Gary McKinnon to the US would not amount to a breach of his human rights was also correct. The Lord Justice said:

"Ultimately, I have to weigh the impressive medical evidence adduced by the Claimant against the severity involved in Article 3. I have no doubt that he will find extradition to, and trial and sentence and detention in the USA, very difficult indeed. His mental health will suffer. There are risks of worse, including suicide. But if I compare his condition with those considered in the authorities to which I have referred above, even taking full account of the (in my view undesirable) possibility of his being prosecuted in this country, his case does not approach Article 3 severity."

Following that decision, Mr. McKinnon's lawyers made fresh representations, including additional medical evidence. I have carefully considered those representations and I am clear that the information that his lawyers have provided is not materially different from that placed before the High Court earlier this year and does not demonstrate that sending Mr. McKinnon to the United States would breach his human rights.

There are legitimate concerns about Mr. McKinnon's health, and the United States authorities have provided assurances, which were before the High Court in July, that his needs will be met. It is also clear from the proceedings to date that there is no real risk that Mr. McKinnon, if convicted, will serve any of his sentence in a supermax prison. Should Mr. McKinnon be extradited, charged and convicted in the US and seek repatriation to the UK to serve his sentence in this country, the Government will progress his application at the very earliest opportunity.

As I have said at every stage of these proceedings, we will not commence extradition proceedings until all legal avenues that Mr. McKinnon wishes to pursue have been exhausted. He can lodge a judicial review within seven days of this decision, and he can appeal to the ECHR within 14 days of the same date. I am currently considering a request from Mr. McKinnon's lawyers for an extension of the seven-day time limit.

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Photo of David Burrowes David Burrowes Shadow Minister (Justice)

I do not propose to ask the Home Secretary to use any general discretion that he says he does not have, nor today do I wish to highlight the unfairness of the UK-US extradition treaty. I want him to focus on the medical evidence, which he has considered and not disputed, and the limited human rights discretion that he accepts he has.

Does the Home Secretary not accept that Professor Jeremy Turk's report of 8 October raised new and material evidence, namely that Gary McKinnon

"is now suffering from an exacerbation of his very serious Major Depressive Disorder...aggravated and complicated by anxiety and panic attacks" aligned to his having Asperger's syndrome? Given that he now places Gary McKinnon at an

"even higher risk of self-harm and suicide" than after his earlier report, and concludes that

"suicide is now a real probability and will be an almost certain inevitability should he experience extradition", and that there is a high probability that he

"will require inpatient psychiatric containment", surely he has established a real risk of human rights being breached should extradition proceed. Putting it more bluntly, how ill and vulnerable does Gary McKinnon need to be not to be extradited to the United States?

The Home Secretary wants to rely on previous court judgments. Given that Lord Justice Stanley Burnton indicated that if Gary McKinnon were not extradited he could be prosecuted in this country, how can it be proportionate to allow the extradition of a UK citizen who is suicidal and sectionable? Is it not the case that far from being powerless to stop Gary McKinnon's extradition, in the light of the medical evidence the Home Secretary has shown himself and his Government to be spineless?

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Photo of Alan Johnson Alan Johnson The Secretary of State for the Home Department

This is a difficult decision, and not one that can be made by the hon. Gentleman. I admire him for the way in which he has represented his constituent, and I met him just a couple of weeks ago on a one-to-one basis. I understand that completely, but I am the only person who can make this decision and I have to make it on the basis of the facts, and all the facts. It is a quasi-judicial decision, and Lord Justice Burnton did not say that if Gary McKinnon were not extradited he could be tried in this country. I have quoted what he said-he was absolutely clear that that is a matter for the Director of Public Prosecutions. It is not for politicians to decide whether someone is prosecuted and where, and he said that it would be

"manifestly unsatisfactory in the extreme" were Mr. McKinnon to be tried anywhere other in the US.

On the question of the medical evidence, Professor Turk's diagnosis and opinions were handed to me by Angela Browning, who is sitting next to the hon. Gentleman. I stopped the clock to look at that diagnosis and those opinions very thoroughly and carefully, but they do not raise any issues that are materially, let alone fundamentally, different from those considered by Professor Baron-Cohen and Dr. Berney in the reports that were before the High Court in June 2009.

Lord Justice Burnton said that Gary McKinnon's case

"does not approach Article 3 severity", and the hon. Gentleman asked which conditions did. Lord Justice Burnton pointed out a whole series of decisions in cases involving people with bipolar disorder, and people with other very serious medical conditions indeed-conditions that many would say were much more serious than the medical condition of Gary McKinnon. Those cases did not reach article 3 severity. Difficult though the decision is, I have no menu of options to choose from; there is either a breach of article 3 of the European declaration of human rights or there is not. My view is that there is not. That can be challenged in the courts.

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Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

Throughout this wretched process, and again today, the Home Secretary has sought to minimise the amount of discretion that he has. He told the McKinnon family, and said again today, that the only issue that he could consider was whether Gary McKinnon's human rights were being breached by his extradition. Of course I accept the Home Secretary's version of his powers, and I therefore ask him to consider some questions in that narrow context.

First, is it proportionate or a breach of human rights to extradite someone in the context of what has been alleged? The US prosecutors say that Mr. McKinnon was attempting to

"influence and affect the US government by intimidation and coercion".

He allegedly hacked into US army computers and left messages attacking US foreign policy. Is that really intimidating or coercive to the US military? More to the point, does the Home Secretary seriously believe that that would be the action of a terrorist?

Secondly, does Mr. McKinnon really need to be extradited to stand trial? As the Home Secretary will have seen, there are reports that the Crown Prosecution Service wanted to prosecute Mr. McKinnon in this country for computer misuse, but that those efforts were blocked. Is that true? Thirdly, is it not a breach of his human rights to send a man with Asperger's and depression to face a possible 60-year sentence? The Home Secretary will have seen the opinion of one psychiatrist that that will amount to a death sentence. It is, of course, horribly ironic that it would be illegal to send someone to another country to face an explicit death sentence.

Fourthly, will the Home Secretary not accept that the imbalance in the Extradition Act 2003 means that a British citizen facing extradition has fewer human rights than a US citizen would have if the position were reversed? Baroness Scotland, the Government's Attorney-General, said in 2003:

"when we make extradition requests to the United States we shall need to submit sufficient evidence to establish 'probable cause'. That is a lower test than prima facie but a higher threshold than we ask of the United States"-[ Hansard, House of Lords, 16 December 2003; Vol. 655, c. 1063.]

Why does the Home Secretary disagree with his Attorney-General that the extradition treaty is unbalanced and unfair?

Finally, does the Home Secretary not recognise that the Extradition Act 2003 was put in place to ensure that terrorists did not escape justice? It was never intended to deal with a case such as the one that we are discussing. Can he not see that his actions regarding Gary McKinnon have damaged this country's reputation, damaged relations between Britain and our most important ally and, most importantly, damaged a very vulnerable and sick young man?

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Photo of Alan Johnson Alan Johnson The Secretary of State for the Home Department

I am pleased that the hon. Gentleman accepts the fact about the so-called discretion. My discretion-if the word is suitable-allows me to look at Gary McKinnon's case against the tests that are set out in law. As it was after Gary McKinnon had been through the district court, the High Court, the House of Lords and the European Court of Human Rights that he was diagnosed as having Asperger's, that was a supervening diagnosis, which meant that the then Home Secretary had to look at the matter against the European declaration on human rights.

The hon. Gentleman talked about Gary McKinnon's offences. This is not a matter of my finding Gary McKinnon innocent or guilty. There are very serious charges against Mr. McKinnon-the hon. Gentleman does not contest that and neither, incidentally, does Mr. Burrowes, Mr. McKinnon's constituency MP. They are serious charges and Mr. McKinnon has to answer those charges. The Director of Public Prosecutions has decided that that has to take place in the US. There is no further right of appeal-the High Court would not allow a judicial review. So we come to whether that breaches Gary McKinnon's human rights. All the legal cases quoted by Lord Justice Burnton relate to medical conditions and mental health conditions that are far worse than those that apply to Mr. McKinnon.

Damian Green asked whether there is truth in the rumour that we were going to prosecute Mr. McKinnon in the UK. No, there is no truth in that rumour. All the actions in this case are clear for anyone to see from the time Mr. McKinnon was charged onwards through all the processes of the law and then through the processes of the law again.

The hon. Gentleman talked, once again, about an imbalance between the level of evidence that the US must apply to the UK in order to get someone extradited and the evidence that we must put before the US courts. He said that there is an imbalance between probable cause and reasonable suspicion. I pointed out that that is academic in the case of Mr. McKinnon because he has admitted the charges. However, members of both main Opposition parties have argued about this point. That argument was made in 2003, when the treaty was being concluded. What has happened since? In how many cases have we failed to get extradition from the US? None. Zilch. Nil. None whatsoever. Every case we have made to the US using probable cause has been successful. In contrast, there are seven cases in which the US has sought extradition from this country that are still held up in the system.

The hon. Gentleman said that my decision damages relationships between this country and the US. That is a bizarre interpretation given the serious nature of these crimes and the fact that America, a friendly state with a mature democratic judicial system, wants to extradite Gary McKinnon to face trial. The interpretation, were that to affect our relationship with the US in any way, should be the other way around.

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Photo of Christopher Huhne Christopher Huhne Shadow Home Secretary

The Home Secretary is, in my view, a very brave man to hold out his judgment of the medical condition-and of the worsening of the medical condition-of Gary McKinnon against such overwhelming evidence as we have heard from Mr. Burrowes. Gary McKinnon is a vulnerable British citizen who has become more vulnerable and whose interests are being ignored in favour of an unequal treaty with the United States. Nobody contests that he has Asperger's or that that condition has been diagnosed since the beginning of the process and has got substantially worse. That alone should be enough to merit some compassion for his condition and mitigation of the penalty for a crime that he admits, as the Home Secretary knows.

Does the Home Secretary recognise that the clear risks to Mr. McKinnon's health and even life have increased since the beginning of the process and will increase further if he is not tried here but is extradited? Does he recognise from the additional medical evidence that the problems faced by Gary McKinnon are more substantial than they were at the beginning? Does that risk not worry him, particularly given the fine balance that he has to strike in deciding when there is a breach of someone's human rights?

May I also ask whether the Prime Minister has considered this case? Will the Government now put the interests of justice for an increasingly vulnerable British citizen ahead of their relations with a foreign Government? Is the Home Secretary prepared to accept the real risk that he will have the life of a man on his hands?

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Photo of Alan Johnson Alan Johnson The Secretary of State for the Home Department

I appreciate the hon. Member's concern. He came to see me with David Davis and my right hon. Friend Mr. Meacher in the summer, and we discussed this issue, as I am willing to do on every occasion. I accept the vulnerability of Gary McKinnon, as I accept the vulnerability in many cases that go through the courts and in which a decision on extradition has to be taken. I note that I have been called spineless and a brave man within five minutes.

I do not argue that these decisions do not need very careful contemplation, and I have thought about this one long and hard. I have looked at every single word submitted by Gary McKinnon's lawyers on the evidence of his medical condition. As I have said previously, that is not materially different from the evidence that was before Lord Justice Burnton in June and on which he made his pronouncement on 30 July. I quoted Lord Justice Burnton in my statement saying that he accepts that there is a risk of suicide, and that is a heavy burden on any Home Secretary's shoulders-as Chris Huhne said in his final point. Nevertheless, my job is to uphold the law-to look at the European convention on human rights and decide whether article 3 is being breached in this case. My decision, based on all the evidence, is that article 3 rights are not being breached in the case of Gary McKinnon. Hon. Members may disagree, but I hope they do not think that that decision was made in any other circumstances than after the most careful contemplation.

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Several hon. Members:

rose -

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Photo of John Bercow John Bercow Chair, Members Estimate Committee, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons, Speaker of the House of Commons

Order. No fewer than 23 Members are seeking to catch my eye. Naturally, I am keen to accommodate as many as a reasonable allocation of time will allow, but I appeal to each right hon. and hon. Member to ask a single, short supplementary question and, of course, to the Home Secretary to provide an economical reply.

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Photo of Liz Blackman Liz Blackman Labour, Erewash

My right hon. Friend mentioned a brief conversation that he had with the US authorities about how Gary McKinnon might be supported, should he be extradited. Could he flesh that out in a great deal more detail? Unconnected, but a point worth making, is the fact that many adults with Asperger's are never diagnosed, and a late diagnosis is not unusual.

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Photo of Alan Johnson Alan Johnson The Secretary of State for the Home Department

My hon. Friend is right in her final comment. It is not unusual to have a late diagnosis. I did not mention any conversation with the US authorities. The question of bail would be entirely for the independent judiciary. If Gary McKinnon were extradited and if he were convicted-and all the evidence would have to be placed before a court-and if he were given a custodial sentence, the procedure under the transfer of sentenced persons convention would kick in. As I said in the letter to Gary McKinnon's mother and to his lawyers, we stand ready to implement that procedure at the appropriate time. That time is a long way away, because at the moment Gary McKinnon has not been convicted of anything.

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Photo of Angela Browning Angela Browning Conservative, Tiverton and Honiton

I hope that the Home Secretary will accept that Gary McKinnon was born with Asperger's syndrome, and that will have contributed to his behaviour with the computers in the first place. It would help Gary McKinnon's state of mind if he knew now that if he were to receive a custodial sentence, he would serve it in the UK. Instead of the Home Secretary saying that that is down the track, if he would make it clear now that the Home Office would support that, it might help Gary McKinnon's state of mind.

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Photo of Alan Johnson Alan Johnson The Secretary of State for the Home Department

I appreciate what the hon. Lady says, and much of the medical evidence was about Gary McKinnon's fear of serving time in a US jail. The problem at the moment is that the case is still in the judicial process. Gary McKinnon's lawyers still have an opportunity to appeal, not only for judicial review of my decision, but to the courts. I do not want to get into that level of detail. It must be right, just as with other extradition cases, that we let matters unfold and cross each appropriate bridge when we come to it. I am well aware of the concerns that the hon. Lady expresses. At the moment, we have an extradition case, not a trial or a conviction.

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

I have respect for the Home Secretary, but I believe that he has made the wrong decision for the wrong reasons. He gave evidence to the Home Affairs Committee, and I wrote to him expressing the Committee's unanimous view that his scope for discretion was wider. We are prepared to publish our legal advice; will he do the same? If fresh evidence comes before him, is he prepared to do what he did on a previous occasion, and for which we were grateful, and stop the clock and consider that evidence?

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Photo of Alan Johnson Alan Johnson The Secretary of State for the Home Department

My right hon. Friend, in his Select Committee report, did not unearth a different view on whether I had discretion. Two lawyers from Matrix Chambers gave evidence to the Committee and said exactly what I have said today: if there were a supervening diagnosis-it was not in these words, but this is the gist of what they said-I, like my predecessor, have the discretion, when all the court cases are finished and if something new arises, to decide whether the case meets article 3 severity. That is what Matrix Chambers said in its evidence to the Committee, and that is what I am saying, so there is absolutely no difference between us.

I think we have established, with the very honest remarks of the hon. Member for Ashford, that actually we all accept where my discretion-if we want to call it that-lies. There might arise fresh evidence. When the hon. Member for Tiverton and Honiton gave me the evidence on Gary McKinnon and what was said to be his worsening condition, of course I looked at the matter again. That is what my predecessor did as well. Incidentally, we have now had three Home Secretaries making the same decision. This is a matter for the Home Secretary, of course, but I believe that anyone in my position would have come to the same conclusion, irrespective of how difficult it might be.

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Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

This year, the House passed a groundbreaking Act on autism, which was the first ever disability-specific legislation and recognised the unique nature and needs of people diagnosed with autism. How can a Government on the one hand legislate to recognise that unique condition, but on the other discount the expert medical advice reinforcing the point that, in this case, extradition is wholly inappropriate and potentially lethal to Gary? Quite frankly, is there no logic, justice or humanity left in the Government?

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Photo of Alan Johnson Alan Johnson The Secretary of State for the Home Department

My right hon. Friend Mr. Blunkett, who holds a position within the National Autistic Society, previously made it clear to those who were lobbying him over this case that he appreciated the problems of autism. I, too, appreciate them. I was Secretary of State for Health and understand completely why that legislation was passed. However, the hon. Lady is too sensible and intelligent to suggest, evenly remotely, that because someone has autism, they do not have to face the consequences of their-alleged-offences. That is not the case. As I have mentioned, we have before us the case of someone with bipolar disorder fighting a similar case, and there are other cases of people with very serious medical complaints. We have to look at Gary McKinnon's case with compassion and test it through the courts. We have done that, and I believe our decision is the right one.

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Photo of Kate Hoey Kate Hoey Labour, Vauxhall

Does the Home Secretary not appreciate that the vast majority of the public, listening to his fine words, will not understand a word of the way in which he has used one bit of an article and another bit of an article? They will see the Government not standing up for a British citizen in a very difficult situation-not someone who does not want to be tried, but someone who wants to be tried in this country. Will they not regard the French Government's treatment of someone such as Roman Polanski, who is not even in their country, as the way in which citizens should be stood up for? Will the Home Secretary not see that, even at this stage, he could find a way around this if he really wanted to prevent Gary McKinnon from being extradited?

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Photo of Alan Johnson Alan Johnson The Secretary of State for the Home Department

My hon. Friend is wrong to say that I am trying to take one bit from here and one bit from there. Those bits and pieces are the European convention on human rights-they are very important, are now part of our law through the Human Rights Act 1998 and are crucial. Cases have to be judged against it.

My hon. Friend states the opinion of the public as if she is the arbiter of public opinion. People in this country want to see a proper extradition that is fair and that not only allows us to bring criminals back from abroad-as we have done on many occasions, including from America-but allows other countries where offences are committed to have the same benefits.

In the case of America, I have already set out the clear views of the courts. It is not for me or any other politician to decide whether to prosecute. The Law Lord, Lord Justice Lloyd said in the other place that it is absolutely wrong for any politician to decide whether to prosecute-and, by definition, where to prosecute-any individual. That was not a matter for me; it was a matter for the prosecuting authorities. They have decided that Gary McKinnon should stand trial in America.

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Photo of John Randall John Randall Conservative, Uxbridge

Will the Home Secretary acquaint himself with the case of a young man in the London borough of Hillingdon who suffered from the same condition as Gary McKinnon and who hacked into BT's system? He was arrested, but BT decided to drop the charges and instead invited him to work on its security. He is now successfully undertaking a degree in IT. Perhaps the way forward might be to try to persuade the US authorities to drop the charges, in order for Gary McKinnon's undoubted skills to be used for good instead of bad.

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Photo of Alan Johnson Alan Johnson The Secretary of State for the Home Department

All that can come out at the trial. As for whether that case was serious or trivial, all I know is that no one has argued that the criminal charges in this case are not very serious. It happened just after the 3,000 deaths on 9/11, at a time when America was particularly sensitive. The Americans will decide, but the decision of the public prosecutors in this country is that Gary McKinnon should be tried in America. That has been upheld in the courts; indeed, the High Court refused to give a judicial review and it was aware of all the other cases, including the one that the hon. Gentleman mentioned. Nevertheless, the court decided that America is the proper place for Gary McKinnon to be tried. As for his defence at that trial, I am sure that the hon. Gentleman's comments will form part of it.

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Photo of Mark Lazarowicz Mark Lazarowicz Labour, Edinburgh North and Leith

Nobody reasonable in the House could dispute that the Home Secretary has a difficult decision to make in this case, and he has clearly considered it carefully. However, given that there is so much public concern about Gary McKinnon's possible extradition, I urge my right hon. Friend to consider again whether there is any way in which he can take steps to prevent his being extradited. Many people in this country would certainly welcome that. I urge my right hon. Friend to think again and try to find some way of making it happen.

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Photo of Alan Johnson Alan Johnson The Secretary of State for the Home Department

It is just not good enough for a Home Secretary to be told to find "some way", irrespective of what the European Court of Human Rights or the law says. It is not the Home Secretary's job to be popular or to please whatever media campaign happens to be on the go; it is the Home Secretary's job to uphold the law-to look at things carefully and make the right judgment. That is what I have done.

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Photo of Menzies Campbell Menzies Campbell Chair, Committee on Issue of Privilege (Police Searches on Parliamentary Estate)

As the Home Secretary knows, extradition is based on the principle of reciprocity. Let me ask him this question: does he think there would be the slightest chance of an American citizen being extradited to the United Kingdom in similar circumstances and on similar evidence?

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Photo of Alan Johnson Alan Johnson The Secretary of State for the Home Department

I hear this kind of argument all the time. Yes is absolutely my answer to that question. Just as we have extradited more than 30 people since the treaty came in, we have not been refused on any occasion, so this kind of faint anti-Americanism-as if the Americans' system is totally corrupt and our system is brilliant-is not something I accept. Nor do I accept that America would not extradite somebody over here in exactly the same circumstances.

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Photo of Andrew MacKinlay Andrew MacKinlay Labour, Thurrock

I listened carefully to the closing sentences of the Secretary of State's statement, which I want to look at in detail. He has basically inherited a Blunkett blunder, which is the treaty. The mood of the House is such that we want to revisit that treaty, in order that caveats can be put in. Will he consider bringing forward emergency legislation so we can address that issue?

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Photo of Alan Johnson Alan Johnson The Secretary of State for the Home Department

No, and for three reasons. Number one, no one has given an argument explaining why probable cause is less of a hurdle to cross than reasonable suspicion; none. Number two, there is not a single case- [ Interruption. ] An hon. Member on the Opposition Front Bench says that the Attorney-General said that. In a debate in another place on precisely this issue just two weeks ago, when an amendment was tabled to the then Policing and Crime Bill to say that we should revisit the issue in relation to forum-where an individual would be prosecuted-and when the House of Lords successfully overturned an amendment of that nature, the Attorney-General made it absolutely plain that it is a matter of form against fact.

When the Attorney-General was a Home Office Minister, she talked at this Dispatch Box about the legislation that we were debating, but which was not then in place. We now have four or five years' experience of this legislation, and my hon. Friend Andrew Mackinlay cannot point to one single case-and nor could my right hon. Friend Keith Vaz at the Home Affairs Committee-or any argument in fact showing that there was an imbalance between the two Acts. I repeat: they could not point to one single argument. In relation to Gary McKinnon, of course, the issue is academic because he has admitted to the charges.

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Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

The right hon. Gentleman really must understand that there is a fundamental difference between the situation in the United States and here. The extradition of the UK citizen to the United States does not require prima facie evidence that the offence has been committed; the extradition of a US citizen to the United Kingdom requires probable cause. These things are different, and the matter must be looked at afresh.

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Photo of Alan Johnson Alan Johnson The Secretary of State for the Home Department

I have been patronised by less wealthy people than the right hon. and learned Gentleman. Let me say to him that probable cause is defined in the US courts as

"reasonable grounds for belief of guilt"; while reasonable suspicion is defined by Lord Devlin like this:

"The circumstances of the case should be such as a reasonable man acting without passion or prejudice would fairly have suspected the person of having committed the offence".

The first point, then, is that that is as close as two different legal systems could be. The second point is that in all the years during which this treaty has been in place, there has not been an issue of fact that backs up the right hon. and learned Gentleman's argument. The third point is that this has nothing to do with Gary McKinnon's case because no one had to prove reasonable suspicion or probable cause, as he has admitted at least to a large chunk of the offences.

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Photo of Tom Watson Tom Watson Member, Labour Party National Executive Committee

I do not envy my right hon. Friend, who for the many years I have known him has always campaigned for justice. Is not the lesson from this case that there is at best a cross-jurisdictional opacity in the way we interpret treaties for alleged crimes conducted in cyberspace, which will be an increasing problem in the years to come, so we need a piece of work that looks at all our treaties and how we interpret this problem?

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Photo of Alan Johnson Alan Johnson The Secretary of State for the Home Department

I, too, have great respect for my hon. Friend, and certainly for his expertise in this area. I have seen nothing, however, that suggests that there is any need for such an investigation or examination. Many cases now take place in cyberspace, and I think the courts are perfectly able to decide them and the prosecuting authorities to handle them. I see no need either in this case or in other cases of a similar nature under consideration at the moment, particularly those concerning extradition, to review how the law works in these circumstances.

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Photo of David Davis David Davis Conservative, Haltemprice and Howden

I am not going to be rude to the Home Secretary because he is in a very difficult position-one forecast by Conservative Members in 2003 and then in 2006, when the right hon. Gentleman's Government put this foolish law in place. Much of what he said rested on legal advice. He will have seen from today's newspapers the comment from Geoffrey Robertson, the senior-very senior-human rights lawyer who said:

"To send a British citizen to the US, without any right to bail, to face 10 years in prison for a crime for which he would be unlikely to receive any custodial sentence if tried here amounts to 'cruel and unusual punishment' in breach of our 1689 Bill of Rights. The home secretary should not hide behind the weasel words of the European Convention when he should be following the law laid down by our own historic bill of rights."

Will the right hon. Gentleman please answer that?

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Photo of Alan Johnson Alan Johnson The Secretary of State for the Home Department

Yes, I read that piece. The courts-the district court, the High Court, the Law Lords, the European Court in Strasbourg-have all looked at this case and they have looked at it as against the law. Now there is an opportunity for them to look at it again. The right hon. Gentleman needs to recognise that the same arguments applied to the NatWest three. We were told about them that they would not get bail, but they did; we were told that they would spend two years in a maximum security prison, which they did not; and we were told that they would face 20 years in jail, which they did not. All the terrible things predicted to take place in the case of the NatWest three did not take place. The hon. Members for Chesham and Amersham (Mrs. Gillan) and for Tiverton and Honiton made the right point about what was the right time to look at those specific issues. At the moment, I believe that it is absolutely right that this extradition proceed, but there will be a time for a legal challenge.

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Photo of Andrew Miller Andrew Miller Chair, Regulatory Reform Committee

I recognise the very difficult dilemma faced by my right hon. Friend, but is it not about time that we asked our American friends-I use the word "friends" deliberately-to examine the case again in the context of the benefits they have accrued through Gary McKinnon's work? Had he not masterfully broken through their security systems, those systems would be vulnerable today. It is about time the Americans recognised that. I am not in favour of people "testing" my burglar alarm, but in this instance Gary McKinnon has done a huge favour to the American state.

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Photo of Alan Johnson Alan Johnson The Secretary of State for the Home Department

I do not accept that argument. It is akin to the argument that if people left their windows open-

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Photo of Alan Johnson Alan Johnson The Secretary of State for the Home Department

Please. The argument is that if someone is accused of serious criminal offences-and no one doubts that that applies to Gary McKinnon-

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Photo of Alan Johnson Alan Johnson The Secretary of State for the Home Department

My hon. Friend keeps saying that Gary McKinnon did not steal anything; I am not saying he did. What I am saying is that we do not judge such cases on the basis of whether or not it was easy to commit the crime, or whether the person involved made it easier for the crime to be committed. We do not do that in relation to any kind of offence, and we should not do it in relation to offences in cyberspace.

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Photo of Crispin Blunt Crispin Blunt Shadow Minister (Home Affairs)

Having listened carefully to the Home Secretary, I conclude that he thinks that the actions of the United States authorities are reasonable in the circumstances. Does he also think that they are wise?

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Photo of Alan Johnson Alan Johnson The Secretary of State for the Home Department

I think that they are reasonable actions. As for whether we would be in exactly the same position if someone had been hacking into the United Kingdom's defences over a 12-month period, with the same effect and at that particular time, and if that person had left the messages that were left at that particular time, I am absolutely sure that Members would be outraged if the United States refused to extradite the person responsible to this country.

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Photo of Rob Marris Rob Marris Labour, Wolverhampton South West

This is the sad case of a sad middle-aged man who is alleged to have deleted part of American security computer systems. That has led both Opposition Front-Bench spokespersons today to state in terms that anyone with Asperger's should never be extradited or tried. Does my right hon. Friend agree that that approach is an insult to people with Asperger's, who have a range of responsibilities and capabilities including, in some cases, criminal responsibility and criminal capability?

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Photo of Alan Johnson Alan Johnson The Secretary of State for the Home Department

I agree that a diagnosis of Asperger's does not mean that it is a breach of human rights to be extradited to face trial for serious criminal offences. Every court in the land has said that, and it has been said by the highest court authority-the High Court. We will look at the facts again. We have looked at the fresh medical and psychiatric evidence, and that is open to be tested in the courts as well, but as yet the courts have decided that this does not approach article 3 severity.

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Photo of Iris Robinson Iris Robinson DUP, Strangford

The decision will grate on the people of Northern Ireland, who for years have witnessed political and judicial protection for IRA terrorist murderers who fled to America and were never extradited despite many requests. In the light of that, will the Secretary of State reconsider his view?

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Photo of Alan Johnson Alan Johnson The Secretary of State for the Home Department

I understand how deeply the hon. Lady feels about the issue, given her experience, but it is not my job or that of the courts-and I do not think any Member would suggest that it was-to make such quasi-judicial decisions on the basis of anything other than the law and anything other than the European declaration of human rights. It is absolutely not the case, in my view, that a decision such as this should be made on any kind of tit-for-tat basis which may or may not exist in respect of decisions that America may have made in the past.

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Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

As the Home Secretary is apparently looking again at all the medical evidence and the issues surrounding the case, will he look again at the possibility of a prosecution being mounted in the United Kingdom to avoid the whole issue of extradition? That would obviously bring an end to what is a very stressful experience for this young man.

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Photo of Alan Johnson Alan Johnson The Secretary of State for the Home Department

At the risk of repeating myself, let me say that I will not look at all the medical evidence again. I have already looked at it; that is why the hon. Member for Enfield, Southgate has laid an urgent question in the House. Secondly, it is the job of the Director of Public Prosecutions to decide whether, and where, to prosecute. That has been upheld in the courts, and on 31 July the High Court refused permission to go to judicial review. That issue has now gone; the only issue left is whether extradition would breach Mr. McKinnon's human rights.

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Photo of John Mason John Mason Spokesperson (Work and Pensions)

Tomorrow, we will debate the Equality Bill, which I support and whose aim is to protect people who are disabled. Does the Home Secretary not see an inconsistency between what the Equality Bill is intended to achieve and this decision?

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Photo of Alan Johnson Alan Johnson The Secretary of State for the Home Department

I do not see any contradiction whatever. I am making a decision based on whether Mr. McKinnon's article 3 human rights would be breached. I am glad the hon. Gentleman and his party support the Equality Bill, but so far as I am aware, nobody is suggesting that people who are disabled should never be prosecuted.

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Photo of Alistair Carmichael Alistair Carmichael Shadow Secretary of State for Northern Ireland, Shadow Secretary of State for Scotland, Liberal Democrat Spokesperson (Northern Ireland), Liberal Democrat Spokesperson (Scotland)

When I was employed as a public prosecutor, it was my duty to make decisions on whether or not to prosecute based on what was in the public interest. The Home Secretary has got compelling evidence today that the decision not to prosecute exposes Gary McKinnon to the probable-if not the inevitable-risk of his committing suicide. I do not see how that can be in the public interest, and regardless of the question of judicial review, why, in these circumstances and with that evidence, is the DPP not being invited to reconsider his decision not to prosecute?

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Photo of Alan Johnson Alan Johnson The Secretary of State for the Home Department

Because the High Court ruled, for the reasons I explained in my statement- [Interruption.] The High Court ruled that it was a matter for the DPP to decide- [Interruption.] Well, if the hon. Gentleman will just be quiet, I will give him the answer. The High Court decided, quite rightly, that it was the DPP's decision. He felt that the decision in this case was right. He set out the reasons why it was right-and I have set them out again in my statement-and he refused to allow judicial review. My deliberations have nothing to do with the decision to prosecute, or where to prosecute. My deliberations are about whether this decision breaches Gary McKinnon's human rights.

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