Gary McKinnon was accused of accessing US government computers without authorisation, but will new evidence of his Aspergers Syndrome be a defence for his actions? Would he have acted differently but for his condition?

The facts

The Gary McKinnon litigation concerns a 43-year-old British citizen who, between 2001 and 2002, is accused to have allegedly gained unauthorised access to 97 United States (US) government computers, deleted data and caused damage amounting to $700,000. The US government requested extradition of the defendant after McKinnon rejected a plea bargain in 2003, and this was considered in the House of Lords, in McKinnon v United States [2008]. The defendant argued that the plea bargain constituted ‘unlawful pressure’ and had amounted to an abuse of process. The appeal was unanimously dismissed because the circumstances of the case were not severe enough to resist extradition. However, in June 2009, an appeal went to the Divisional Court, in R. (on the application of McKinnon) v Secretary of State for Home Affairs [2009]) requesting judicial review of decisions made to extradite him after it was discovered that he was suffering from Aspergers Syndrome in August 2008. He had claimed that extradition would breach his rights under Article 3 (the right not to be subject to inhuman or degrading treatment or punishment) and Article 8 (the right to a private and family life) of the European Convention on Human Rights. Again, the appeal was dismissed, and judges affirmed the House of Lords decision in the previous case; the case did not ‘approach Article 3 severity’ (Burton LJ).

Fresh hope

Following years of stressful and expensive litigation, the New Year proves to be a happy one, as it sees High Court judge, Mr Justice Mitting, granting the judicial review of the possible unlawful decision of the Home Secretary to extradite McKinnon. The review will be heard later this year in the divisional courts and will consider the Home Secretary’s decision to ignore new evidence from a consultant psychiatrist, against extraditing McKinnon, that self-harm or even suicide is an ‘almost certain inevitability’. This recent update on the McKinnon case forces us to consider two important legal issues existing between the American and English legal systems: how worthy are plea bargains, and could the Home Secretary’s decision to extradite Gary McKinnon be considered unlawful?

Unfair bargain

A plea bargain is an agreement between the prosecution and the defendant in a criminal case, which means that, if he pleads guilty, he will get, inter alia, a lesser sentence, subject to court approval. Plea bargaining is controversial for many reasons, and perhaps rightly so. In the first McKinnon case, it was argued by defence lawyers that plea bargaining puts unfair pressure on the defendant to give up his legal rights to a trial by jury, so it could be considered unconstitutional and an abuse of process. Victims may consider plea bargaining unfair because, despite being guilty, the defendant may receive a lighter punishment where it is not deserved. The possible long-term consequence of this is that it may result in people having less faith in their justice systems. Plea bargains have been defended by criminal justice systems like the US Supreme Court, alleging that they save court time and therefore more efficient. Are the benefits of plea bargaining purely for the courts, rather than for the individuals concerned?

After considering the lawfulness of plea bargaining in the 2008 case, it is easy and perhaps understandable to feel sceptical and unsympathetic towards McKinnon. In my opinion, the defence were trying to delay the extradition proceedings as much as possible. I agreed with the judge’s decision to dismiss the appeal on the basis that plea bargaining, although not strictly used in the UK, is regulated in the US and therefore lawful. However, what made the case an interesting one to follow was how my views changed when reading as the case progressed, and how I learnt more of McKinnon’s troubling situation. Further, the psychiatrist’s findings in the second case, suggest that Aspergers Syndrome makes him less blameworthy for his crimes. This is possibly due to the ‘obsessions’ or ‘strong narrow interests’ symptomatic of Aspergers Syndrome, which led him to believe that the US government were concealing information that would be in the public interest, and therefore a moral and ethical issue that he felt obliged to reveal. In January, a human rights barrister agreed that his motivations in committing the crime were controlled by an underlying mental disability and claimed that the government, in extraditing McKinnon, would ignore the UK Bill of Rights of 1698, which proposed to ban punishment which does not fit the crime. Perhaps gaining access to these computers became a personal challenge to him, therefore the assumptions that his conduct was ‘intentional and calculated to influence the United States government by intimidation and coercion’ seem less convincing, and perhaps he was unaware that this would be the consequence of his actions. People supporting his extradition might say that having Aspergers Syndrome does not necessarily mean that he cannot distinguish right from wrong.

The alternative

Will McKinnon’s Aspergers Syndrome change his sentencing? Should people with mental disabilities be treated differently under our legal system? Is it fair to give two people who committed the same crime but have different mental states different penalties? Perhaps he could be given an alternative punishment which would not harm him mentally, as he clearly deserves punishment; but the punishment which the US is suggesting could lead to mental distress. If he were to be extradited and imprisoned in the US it could become a moral concern because he could suffer a mental breakdown. Arguably, he would be suffering for a crime where no harm was committed. There are some questions which still remain: should it matter where he is punished, provided that he is? Alternatively, is it fair for the US to punish him there when he committed his crimes in the United Kingdom? And finally, should the decision to extradite McKinnon be held unlawful? This will be decided later in the year.

Clare Taylor is in the first year of a Law LLB with French