Editorial: Our extradition rules need the shake-up that the Gary McKinnon reprieve has delivered

Computer hacker Gary McKinnon may still face charges in a British court. Quite right

Click to follow
The Independent Online

After 10 years, Gary McKinnon finally has the reprieve he has been fighting for. Although the computer hacker may still face charges in British courts for his multiple breaches of US government systems in 2001 and 2002, he will not be extradited to America.

The Home Secretary's decision, unsurprisingly, met with cheers from Mr McKinnon's phalanx of supporters. The 46-year-old – who has Asperger's syndrome and claims his activities were a hunt for information on UFOs rather than terrorism – faced up to 60 years in a US prison. Ignoring the irony of a Conservative turning to human rights rules on such an issue, Theresa May concluded that there was sufficient risk of suicide to halt the extradition.

Regardless of the campaigns on Mr McKinnon's behalf, Ms May's ruling is far from uncontroversial. It cannot but raise questions as to how far either a medical condition or the threat of self-harm are relevant in law, and it sets a potentially far-reaching precedent. Meanwhile, supporters of other, even more contentious, extraditees – such as Babar Ahmad and Talha Ahsan (who also has Asperger's), who were handed over to the US earlier this month for allegedly running terrorist websites – are outraged at the perceived double standard.

Individual cases must, of course, be assessed on their individual merits. But against the backdrop of any number of crusades for Mr McKinnon and against Britain's extradition rules, Ms May's judgment – which overturns those of no fewer than three home secretaries before her – starts to look like a fudge.

Her decision is, however, still the right one. Not because Mr McKinnon's psychiatric issues obviate any crime he might have committed; nor even because the US legal system can reasonably be considered less judicious than our own; but because the hacking took place in this country, broke this country's laws, and should therefore be prosecuted here.

With the threat of extradition lifted, it is now up to Keir Starmer, the Director of Public Prosecutions, to decide whether Mr McKinnon is to face British justice. And it is this principle which is – rightly – at the heart of the broader reforms set out by the Home Secretary yesterday. Not a moment too soon. A series of extradition disputes, of which the McKinnon case is only one, has created an impression of a system tilted in favour of the US and eroded both public and parliamentary confidence.

Given the diplomatic implications, it is little surprise that Ms May has stuck by the conclusion of Lord Justice Scott Baker's official review that, in practice, there is little distinction between the evidence required to support extradition on either side of the Atlantic. At least as important, however, are her proposals to introduce a "forum bar" under which British courts can block extradition in cases where the suspect could stand trial in the UK instead. Quite right. Suspects who are accused of illegal activity in Britain should be tried by British courts, and the process by which decisions on extradition are reached must be open to public scrutiny.

Ms May also plans to hand the power to review human rights concerns from the Home Secretary to the High Court. It can only be hoped that, between that and the forum bar, some of the more egregious delays that dog extradition cases can be ameliorated. The back and forth over Mr McKinnon lasted a decade. The radical cleric Abu Hamza was finally put on a plane to New York this month after more than eight years of legal battles. Innocent or guilty, such delays are barbaric. For justice to be done fairly, it must be done quickly. And, where possible, it should be done here.