Friday, July 31, 2009

Too many strange unanswered questions in the McKinnon extradition case

On Friday the English High Court ruled that Gary McKinnon, who fought a long legal battle to avoid being extradited to the U.S. after he was charged with breaking into 97 computers belonging to different branches of the US Government and military in 2001, should face extradition because that represented ''a lawful and proportionate response to his offending.'' Did it?
When one starts to analyse the case there are far too many questions that remain unanswered and make difficult to explain the willingness of English judges to pay such a deference to the US government, which would clearly and legally not do the same if the situation was the other way around. It is important to begin by pointing out that the judiciary is part or a branch of the state that has, as explicit and historic purpose, to serve the interest of the nation (of which its citizens are part). Within that context, even in this world of complex interdependence, the international relations and international agreements of a country have, as ultimate purpose, to give some benefit to a nation and its citizens. Accordingly, to send a country’s citizen to be tried abroad for a crime that has been committed, very likely, both in England and abroad seems very, highly, strangely unusual and it would take from a judge an exercise of imaginative interpretation that would put him very close to disregarding the right to a fair trail, as established by article 6 of the European Convention of Human Rights and incorporated into English law by the Human Rights Act 1998.
There is little doubt about the fact that what McKinnon did in 2001 was and is a crime under both American and English law and, again, it is not easy to explain, regardless the judge and CPS 's spin on it, why a UK national is not tried within UK.
Now, in the unlikely, but possible situation where it is decided that the crime was committed only in the US, can the defendant still be tried in the UK?
Under international law principles, courts can assert jurisdiction over a defendant based on the nexus between the court, the defendant and the crime. Courts can (and normally do) follow the territoriality nexus where the defendant is tried in the forum where the crime was committed. In this particular scenario, deciding where the crime took place would be paramount to know where McKinnon should be tried. Here again, the proper application of statutory and case law to the facts of the case seems to lead to the unequivocal conclusion that a crime has also been committed in the UK. Jurisdiction can also be established based on the nationality nexus, where the defendant is tried within its own country regardless of the place where the offence has been committed. Here again, taking into account that the ultimate purpose of the organization of the state is to act for the benefit of the country and its citizens, courts would normally use this form of asserting jurisdictions where by doing so they understand that a national would not be punished for a crime committed abroad that the home country considers to be serious enough or, on the contrary, the citizen would receive a punishment that results too harsh or disproportionate for that country’s standards. In the case of English law, when dealing with murder and manslaughter, the English courts have jurisdiction over offences committed abroad, if it was committed by a British citizen as established by section 9 of the Offences against the Person Act 1861 and section 3 of the British Nationality Act 1948, and confirmed in R v Cheong (2006) AER (D) 385. There have been also plenty of cases recently where the British Government has requested a British national to be sent to England to be tried for crimes committed abroad but that would have a disproportionate sentence in other country. In the case of McKinnon, even in the unlikely case that it is understood that his crime was committed only in the US, English courts have the legal basis to assert jurisdiction over him and try him here, and taking into account the ultimate purpose of the state, already mentioned before, they must do so.
And all of that without entering into the many other questions that the case arises…
Why, taking into account that the article 8 of the US-UK extradition treaty is so imbalanced in favour of the US and also taking into account the known and acknowledged lack of respect for international law and due process to foreigners and in some cases American citizen (has the judge heard about Guantanamo, the Salgado case, Padilla and hundred of others), the judge still thinks that the response is proportionate? Last week a paedophile that raped a boy was sentenced to 4 years of prison here in England while McKinnon could get a sentence several times longer in the US for entering into those computers looking for information about UFOs, is that proportional? Why the press keeps referring to the hacker “breaking” into the American sites when the hacker actually “entered” into them? (the difference is fundamental because in the non-virtual space it is radically different to be accused of trespass than to be accused of burglary and in the present case McKinnon entered into sites that had the password left blank so he actually did not "break" into those computers). Why the judge is so keen to extradite a British citizen with such a dubious legal basis when higher English courts have refused to extradite foreigners that committed crimes much more serious? In sum, in most countries (developed and not) a ruling that leaves so many strangely unanswered questions would merit an investigation into the judge’s conduct…

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