Prosecutions chief 'has failed hacker' over charges

Published on Tuesday 14 July 2009 20:36

A SENIOR government law officer has been accused of "failing to confront the human rights arguments" against forcing a Scottish "UFO eccentric" to face trial in America for hacking into US military networks.

A QC told two judges that extraditing Gary McKinnon, 43, who suffers from Asperger syndrome, would lead to "disastrous consequences" due to his medical condition, including possible psychosis and suicide.

Mr McKinnon, who was born in Glasgow but now lives in north London, is asking the High Court judges to overturn a refusal by Keir Starmer, QC, the director of public prosecutions (DPP), to put him on trial in the UK on charges of computer misuse.

If there is no UK prosecution, Mr McKinnon would inevitably be extradited to stand trial in the US, the judges heard.

Edward Fitzgerald, QC, appearing for Mr McKinnon, accused the DPP of misapplying the law when he decided there was "insufficient evidence" to support a UK prosecution under the Computer Misuse Act – even though the hacker had admitted his crimes. Mr Fitzgerald said the DPP had also failed to confront the new evidence concerning Mr McKinnon's medical condition and deal with the human rights issues it raised.

Mr Fitzgerald argued that both the DPP and Crown Prosecution Service were failing in their duties to take account of the humanitarian factors.

The CPS had also failed totally to explain the difference in treatment between Mr McKinnon and other defendants who had targeted US computer systems and committed similar offences but were tried in the UK.

Lawyers for the DPP are arguing that the decision not to prosecute was "entirely rational" and was "manifestly not one which is susceptible to judicial review".

A key issue is that, although Mr McKinnon has admitted computer hacking, his lawyers say his intention was only to cause "temporary impairment".

The Americans say that the offences were much graver, and the DPP and CPS argue there is insufficient evidence in the UK for a trial that would "reflect the full gravity" of the charges the Americans wish to bring.

Mr McKinnon's mother, Janis Sharp, who was at yesterday's hearing with her son, said: "I will not give up this fight until the government intervenes to protect my vulnerable son."

The actress Trudie Styler, wife of rock star Sting, who has campaigned against the extradition, said: "Someone at the highest levels of government must now say enough is enough."

Lord Justice Stanley Burnton and Mr Justice Wilkie reserved their judgment and said they hoped to give their decision in writing by the end of July.

HIDDEN ISSUE

ASPERGER syndrome is a form of autism, a lifelong condition affecting how a person makes sense of the world, processes information and relates to other people.

It is mostly a "hidden disability", the characteristics of which are mainly difficulties in social communication and interaction.

People with Asperger syndrome are often of average, or above average, intelligence. They don't usually have the accompanying learning disabilities associated with autism, but they may have specific learning difficulties, including dyslexia and dyspraxia, or other conditions such as attention deficit hyperactivity disorder and epilepsy.