Computer hacker Gary McKinnon will finally find out tomorrow whether he will be extradited to the United States following a lengthy legal battle which his mother has likened to a “waterboarding of the mind”.
The decision, which will be announced by the Home Secretary, comes more than ten years after he was first arrested for breaking into a string of American military networks from his north London bedsit.
The 46-year-old, who suffers from Asperger’s Syndrome, desperately wants to avoid being sent across the Atlantic where he faces the possibility of 60 years behind bars. Over the past decade his lawyers have argued that the sentence he faces is disproportionate to the offence, that he should have been tried in a British court for cyber offences committed on UK soil and - more recently – that his Asperger’s diagnosis would put him at acute risk of suicide where he to be locked up.
As the case progressed through the courts he lost at every stage. The final say now rests with Home Secretary Theresa May who will announce her decision to Parliament this morning. McKinnon’s family have had their hopes raised by the recent revelation that a trio of Home Office appointed psychiatrists have warned that he would be likely to attempt suicide if held in an American prison.
However that optimism has been tempered by the fact that the government went ahead last week with the extradition last week of terror suspect Talha Ahsan, despite a similar Asperger’s diagnosis and concerns that he would be at risk of suicide.
Speaking today McKinnon’s mother Janis Sharp said her son had been so many “ups and downs” over the past decade that it felt like torture. “It's like waterboarding of the mind - you're elated you're down, it's so cruel,” she said. “I'm still scared and will be waking up at 3am tomorrow.”
Asked how her son was holding up in the run up to today’s decision she replied: “It's been so hard. People don't realise it's the only thing on your mind, there's nothing else in your life. He's lost 10 years of his youth. He just sits there. He's scared, he can't go out because people recognise him. He sits in the dark with his two cats.“
Today’s decision will be a real test case for whether the Government is willing to rethink its controversial extradition agreement with the United States, which insists that Britain must provide prima facie evidence of wrong doing before making an extradition request but does not expect the same level of proof from American prosecutors.
Last week the government had no qualms about extraditing terrorism suspects, even though two of the cases were similarly controversial to McKinnon’s because they involved alleged cyber offences committed on UK soil.
However while Babar Ahmad and Talha Ahsan received little support from politicians both David Cameron and Nick Clegg publicly stated that McKinnon should not be extradited when they were campaigning during the last General Election. Since getting into power, however, the coalition government has delayed making a decision on Mr McKinnon, commissioning numerous medical reports and testing the potential diplomatic fallout with the United States if they refuse their extradition request.
Michael Caplan QC, an extradition specialist at Kingsley Napley LLP, said the extradition arrangements should be changed to enable the UK courts to decide where best to try a case.
”Whatever the Home Secretary's decision tomorrow, in my view there's a clear case for legislative amendment to include a forum test by the courts to determine the fairest jurisdiction for trial,“ he said. ”It should be for a British judge to hear all the arguments in favour of domestic prosecution and balance those against the requesting country's application for extradition. He will have in mind where most of the conduct took place and where the trial should take place in the interests of justice. A forum test could prevent the delays and controversies we have seen in recent extradition cases.“
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