Urgent Question: Gary McKinnon (Extradition)
1st December 2009
Raising an 'urgent question' in the House of Commons, David Burrowes calls on the Home Secretary to make a statement on his decision not to intervene to stop Gary McKinnon's extradition to the United States.
3.34 pm
Mr. David Burrowes (Enfield, Southgate) (Con) (Urgent Question): To ask the Secretary of State for the Home Department if he will make a statement on his decision not to intervene to stop Gary McKinnon's extradition to the United States.
Thank you, Mr. Speaker, for allowing this urgent question on behalf of my constituent.
The Secretary of State for the Home Department (Alan Johnson): Gary McKinnon is accused of serious criminal offences. He is alleged to have repeatedly hacked into US Government computer networks over a period of 13 months, including 97 US military computers from which he deleted vital operating systems and then copied encrypted information on to his own computer, shutting down the entire US army's military district of Washington's computer network for 24 hours. During interviews under caution, Mr. McKinnon admitted to much of the conduct he is accused of.
A great deal has been made of the perceived imbalance in UK-US extradition arrangements in respect of probable cause versus reasonable suspicion. While I am clear that no such imbalance exists, as Mr. McKinnon has admitted the conduct which has given rise to the extradition request, this issue is academic in his case. This aside, under the terms of the Extradition Act 2003, I can prevent an extradition only in very specific circumstances: where the person in question could be sentenced to death if convicted; where there is a chance of that person being tried for crimes committed before that extradition which were not specified in the extradition request; or where the person has previously been extradited to the UK from another country, or transferred here by the International Criminal Court, and no consent has been given to their being extradited elsewhere.
Outside of the statutory extradition scheme, the courts have made it clear that the only circumstances in which I could prevent extradition would be where the evidence demonstrates that extradition would be a breach of human rights. If it would breach human rights to proceed with extradition, I would have to halt proceedings. If it would not, it would be unlawful for me to do so.
Mr. McKinnon has challenged his extradition in the district court, the High Court, with the Law Lords, and in the European Court of Human Rights, all of whom have ruled that the extradition should go ahead. Following the diagnosis of Asperger's syndrome in August 2008, he made fresh representations to the then Home Secretary claiming that because of his medical condition his extradition would breach the European convention on human rights. The then Home Secretary decided in October 2008 that the evidence Mr. McKinnon submitted did not meet the threshold needed to constitute a breach of the ECHR. Mr. McKinnon challenged in the High Court this decision and the decision by the Crown Prosecution Service that there were no grounds for him to be tried in this country.
On 31 July 2009, the High Court handed down both judgments. In its judgment on the Director of Public Prosecution's decision that Mr. McKinnon should be tried in the US, Lord Justice Stanley Burnton said this:
He expressed the view that it would be
for Mr. McKinnon to be tried in the UK and refused permission for this aspect to be judicially reviewed.
Secondly, the Court ruled on 31 July that the decision of the Home Secretary that the extradition of Gary McKinnon to the US would not amount to a breach of his human rights was also correct. The Lord Justice said:
Following that decision, Mr. McKinnon's lawyers made fresh representations, including additional medical evidence. I have carefully considered those representations and I am clear that the information that his lawyers have provided is not materially different from that placed before the High Court earlier this year and does not demonstrate that sending Mr. McKinnon to the United States would breach his human rights.
There are legitimate concerns about Mr. McKinnon's health, and the United States authorities have provided assurances, which were before the High Court in July, that his needs will be met. It is also clear from the proceedings to date that there is no real risk that Mr. McKinnon, if convicted, will serve any of his sentence in a supermax prison. Should Mr. McKinnon be extradited, charged and convicted in the US and seek repatriation to the UK to serve his sentence in this country, the Government will progress his application at the very earliest opportunity.
As I have said at every stage of these proceedings, we will not commence extradition proceedings until all legal avenues that Mr. McKinnon wishes to pursue have been exhausted. He can lodge a judicial review within seven days of this decision, and he can appeal to the ECHR within 14 days of the same date. I am currently considering a request from Mr. McKinnon's lawyers for an extension of the seven-day time limit.
Mr. Burrowes: I do not propose to ask the Home Secretary to use any general discretion that he says he does not have, nor today do I wish to highlight the unfairness of the UK-US extradition treaty. I want him to focus on the medical evidence, which he has considered and not disputed, and the limited human rights discretion that he accepts he has.
Does the Home Secretary not accept that Professor Jeremy Turk's report of 8 October raised new and material evidence, namely that Gary McKinnon
"is now suffering from an exacerbation of his very serious Major Depressive Disorder...aggravated and complicated by anxiety and panic attacks"
aligned to his having Asperger's syndrome? Given that he now places Gary McKinnon at an
than after his earlier report, and concludes that
and that there is a high probability that he
surely he has established a real risk of human rights being breached should extradition proceed. Putting it more bluntly, how ill and vulnerable does Gary McKinnon need to be not to be extradited to the United States?
The Home Secretary wants to rely on previous court judgments. Given that Lord Justice Stanley Burnton indicated that if Gary McKinnon were not extradited he could be prosecuted in this country, how can it be proportionate to allow the extradition of a UK citizen who is suicidal and sectionable? Is it not the case that far from being powerless to stop Gary McKinnon's extradition, in the light of the medical evidence the Home Secretary has shown himself and his Government to be spineless?
Alan Johnson: This is a difficult decision, and not one that can be made by the hon. Gentleman. I admire him for the way in which he has represented his constituent, and I met him just a couple of weeks ago on a one-to-one basis. I understand that completely, but I am the only person who can make this decision and I have to make it on the basis of the facts, and all the facts. It is a quasi-judicial decision, and Lord Justice Burnton did not say that if Gary McKinnon were not extradited he could be tried in this country. I have quoted what he said-he was absolutely clear that that is a matter for the Director of Public Prosecutions. It is not for politicians to decide whether someone is prosecuted and where, and he said that it would be
were Mr. McKinnon to be tried anywhere other in the US.
On the question of the medical evidence, Professor Turk's diagnosis and opinions were handed to me by the hon. Member for Tiverton and Honiton (Angela Browning), who is sitting next to the hon. Gentleman. I stopped the clock to look at that diagnosis and those opinions very thoroughly and carefully, but they do not raise any issues that are materially, let alone fundamentally, different from those considered by Professor Baron-Cohen and Dr. Berney in the reports that were before the High Court in June 2009.
Lord Justice Burnton said that Gary McKinnon's case
and the hon. Gentleman asked which conditions did. Lord Justice Burnton pointed out a whole series of decisions in cases involving people with bipolar disorder, and people with other very serious medical conditions indeed-conditions that many would say were much more serious than the medical condition of Gary McKinnon. Those cases did not reach article 3 severity. Difficult though the decision is, I have no menu of options to choose from; there is either a breach of article 3 of the European declaration of human rights or there is not. My view is that there is not. That can be challenged in the courts.
