McKinnon renews appeal for UK trial

NASA hacker Gary McKinnon has renewed his appeal to be tried in the UK and not extradited to the US. McKinnon's lawyer has sent a letter to the Director of Public Prosecutions (DPP) in which he admits to carrying out the hacks.

McKinnon's legal team hopes that if he can be charged and tried in the UK he might be spared extradition to the US, where he was threatened with up to 70 years in jail.

McKinnon has always admitted being responsible for the activity of hacking into NASA and US military computer networks, but has challenged US prosecutors' accounts of what damage was done by his actions.

He has also always asked to be prosecuted in the UK not in the US. He was in London when he carried out the hacks.

McKinnon's lawyer Karen Todner of Kaim Todner told OUT-LAW that the documents sent to the DPP included a medical report diagnosing McKinnon as having Asperger's Syndrome. It was hoped that this diagnosis would result in the authorities taking a different view of the case.

"What has changed is that he has made a signed confession, a statement of exactly what he did, and this has been sent to the DPP," she said. "There is also the diagnosis of Asperger's Syndrome, so it might be looked on more favourably in terms of the way they treat him."

After his arrest in the UK US authorities sought his extradition, accusing him of hacking computers belonging to NASA, the Department of Defense, the army, the navy and the air force. He was accused of causing $700,000 worth of damage.

McKinnon resisted extradition and his case went all the way to the House of Lords, which said that his human rights were not affected by US authorities' plea bargaining. His legal team also asked the Home Office to block the extradition, but it refused.

One litigation expert said that the Home Office's involvement will not help McKinnon's case.

"The Crown Prosecution Service (CPS) is an independent prosecution body which is ultimately answerable to the Attorney General, which is still a Government Office," said Claire Shaw, a former prosecutor and now a litigation expert at Pinsent Masons, the law firm behind OUT-LAW.COM. "It will be expected to operate under a notion of 'unity of government', meaning that one arm of government would not say 'yes we'll prosecute him in the UK' when another arm has said he should be extradited."

"If the UK government has found that he should be extradited, and as a matter of law that decision has been upheld by the courts as a lawful one, then the CPS, which must apply the Code for Crown Prosecutors in coming to its decision, is unlikely to charge that person in this country without the Home Office reversing its original decision," she said.

Todner said that the Home Office had been asked to rule on a different issue.

"The Home Office was not asked the same question. It was asked to not extradite him, the DPP is being asked to prosecute him," she said. "The Home Office was never asked this question. I take the point, though, and there is no doubt that it is a Government body."

The CPS confirmed that it had received correspondence from McKinnon's lawyers and that it is considering its contents.

Todner said that she believed that any prosecution here would halt extradition proceedings. "There would be an abuse of process argument if it didn't," she said.

A spokeswoman for the CPS said that she could not comment on the individual case, but that in general it would not extradite someone in relation to actions for which they had already been punished in the UK.

"Double jeopardy does apply, it isn't proper to prosecute someone for conduct for which they have already been prosecuted," she said. "As a very general rule, if someone committed murder in the US and was prosecuted here for that we would not extradite them on murder charges."

Shaw said that this situation was complicated by the fact that the extradition process had come before any decision to prosecute.