Hacker wins permission to challenge extradition

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A British computer expert today won permission to launch a fresh High Court challenge over moves to extradite him to America on charges of hacking into US military networks.

Lawyers for Gary McKinnon, 42, from Wood Green, north London, argued his health would suffer and he would be at real risk of suicide if extradited.

Two judges ruled that his case "merits substantive consideration" and granted him permission to seek judicial review of Home Secretary Jacqui Smith's decision last October that extradition should take place.

Lord Justice Maurice Kay and Mr Justice Simon, sitting at the High Court in London, said it might be that Ms Smith's decision was "unassailable" - but ruled that Mr McKinnon had an arguable case that should be tested in court.

Mr McKinnon faces a lifetime in jail if he is found guilty in the US of sabotaging vital defence systems after the September 11 terror attacks.

His supporters said he acted through "naivety" as a result of his Asperger's Syndrome - a form of autism - and should not be considered a criminal.

His lawyers argued his medical condition - diagnosed last August - was likely to give rise to psychosis or suicide if removed to the US, far away from his family, and should be tried in the UK.

Keir Starmer QC, the new director of public prosecutions, is considering a request for Mr McKinnon to be prosecuted in Britain rather than the US, where his legal team believe he would receive a much shorter sentence.

He has signed a statement accepting that his hacking constituted an offence under the UK's Computer Misuse Act 1990.

The court heard the Home Secretary had already agreed not to extradite pending the director's decision, expected within the next four weeks.

Outside court, Mr McKinnon's solicitor Karen Todner expressed her delight with the judges' decision.

She said: "The judges have granted permission for a review of our claim that the Home Secretary has not sufficiently taken account of the effects of Asperger's, and particularly the effect it will have upon him if he were to be extradited.

"It is the right decision. This case has been going on since 2002 and finally we have got the first right decision."

Outside court Gary's elated mother, Janis Sharp, phoned her son who was not in court, to talk about the case, saying to him: "It's great isn't it, Gary?"

She also said: "We are overjoyed that the British courts have shown sense and compassion by allowing our son Gary, a young man with Asperger's syndrome, this judicial review.

"We have always been outraged by the Home Office's decision to have him extradited to stand trial in a foreign land where he would face an out of proportion sentence for what is essentially a crime of eccentricity.

"We also have high hopes for a just outcome of the decision to be made by Keir Starmer, the Director of Public Prosecutions, on whether Gary can be tried in the UK.

"Perhaps now that Obama is in power in America, our world might really become a more compassionate place where consideration, a sense of perspective and individuals' human rights are brought to the fore."

Mr McKinnon's full application for judicial review is expected to be heard after March 16, the date by which time the DPP will have decided whether to prosecute him in the UK.

The McKinnon victory was extraordinary because the hacker had already fought over many years against extradition, losing every step of the way in statutory appeal proceedings.

His case was rejected by a district judge, the High Court and then, in July last year, by the House of Lords. The European Court of Human Rights in Strasbourg also refused to intervene.

Today Lord Justice Maurice Kay described how, within four weeks of the law lords' ruling against him, there came evidence that he was suffering from Asperger's syndrome.

"Until then it had not been suspected. It seems a late diagnosis is not uncommon," the judge said.

That fresh evidence had led to further unsuccessful pleas to the Home Secretary to halt extradition, and so to today's new application for judicial review.

The judge said it had been argued by Edward Fitzgerald QC, appearing for Mr McKinnon, that the Home Secretary had failed to give adequate consideration to expert evidence, including that from Professor Simon Baron-Cohen, a leading expert on Asperger's syndrome, that extradition, in Mr McKinnon's case, could create anxiety leading to psychosis and suicide.

Mr Fitzgerald said the evidence was that extradition could amount to inhuman and degrading treatment, infringing Article 3 of the European Convention on Human Rights.

The judge said Hugo Keith QC, appearing for the Home Secretary, had referred to the "stringency" of the test that had to be passed for an Article 3 challenge to be brought.

Mr Keith had described the Home Secretary's reasoning on the issue as "unassailable".

The judge said: "He may be right. However in our judgment this part of the claimant's case merits substantive consideration after full argument and we grant leave (for a judicial review hearing."

The judges had earlier rejected arguments that Mr McKinnon, if extradited, was likely to be incarcerated at the Supermax in Florence, Colorado, a notorious fortress-like prison for America's most dangerous criminals.

Lord Justice Maurice Kay said: "We don't find an arguable ground for judicial review on this issue."

Turning to the possibility of Mr McKinnon being tried in the UK, the judge said that, if the DPP decided not to bring charges against him, it was "fanciful" to envisage he would succeed in challenging a decision not to prosecute him.

If the DPP did decide to prosecute, then the full hearing of the present application for judicial review might become premature.

In any event, the extradition procedure would be delayed until after the end of the UK court hearings.

Mr McKinnon's counsel told the judges he was unable to say at present whether he would seek to challenge a decision not to prosecute.

Mr McKinnon insists he was only looking for evidence of UFOs when he hacked into the US military networks in 2001 and 2002.

He has signed a statement accepting that his hacking constituted an offence under the UK's Computer Misuse Act 1990.

But the US military alleges that he caused 800,000 dollars-worth (£550,000) of damage and left 300 computers at a US Navy weapons station unusable immediately after the September 11 atrocities.

Mr McKinnon is accused of hacking into 53 US Army computers and 26 US Navy computers, including those at US Naval Weapons Station Earle in New Jersey, which is responsible for replenishing munitions and supplies for the Atlantic fleet.

He is also accused of hacking into 16 Nasa computers, one US Department of Defence computer and one machine belonging to the US Air Force.

Mr McKinnon was caught in 2002 as he tried to download a grainy black and white photograph which he believed was an alien spacecraft from a Nasa computer housed in the Johnson Space Centre in Houston, Texas.

He was easily traced by the authorities because he used his own email address.

Mr McKinnon has said he believes he would get a fairer trial in the UK than in America.

He also admitted to being "extremely stressed", adding: "I am very controlled, which is probably not a good thing, but inside the fires of hell are burning. It's not a good place to be."