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Why Mc Kinnon Kept Losing In Court
Before extradition was blocked, McKinnon lost repeated challenges in UK courts and at the European human-rights stage.
On this page
- High Court and House of Lords rulings
- European Court of Human Rights refusal to stop extradition
- How the legal argument shifted after the Asperger's diagnosis
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Introduction
Before the British government blocked Gary McKinnon’s extradition in October 2012, he spent years losing almost every major legal challenge available to him. That long sequence of defeats is essential to understanding why the final decision was so striking. From the High Court to the House of Lords and then the European Court of Human Rights, judges repeatedly concluded that the extradition process was lawful and that the arguments presented at the time were insufficient to stop his transfer to the United States. Only later, when extensive medical evidence concerning Asperger’s syndrome, depression and suicide risk became central to the case, did the legal and political landscape change. [UK Parliament+2GOV.UK]publications.parliament.ukmckinn 1UK ParliamentMckinnon V Government of The United States of America…30 Jul 2008 — On 7 October 2004 the respondent government requested…
For supporters of McKinnon, the repeated defeats illustrated the rigidity of the UK–US extradition system. For courts, however, the issue was not whether McKinnon’s conduct was sympathetic or whether his UFO-related motives were genuine, but whether the legal requirements for extradition had been met. Until the final phase of the case, the answer from the courts was largely yes. [UK Parliament]publications.parliament.ukmckinn 1UK ParliamentMckinnon V Government of The United States of America…30 Jul 2008 — On 7 October 2004 the respondent government requested…
High Court and House of Lords Rulings
McKinnon’s early appeals focused on challenging the legality and fairness of extradition rather than on the medical arguments that later became decisive. His lawyers argued, among other things, that he should be prosecuted in the United Kingdom rather than the United States and that aspects of the American plea-bargaining system created unfair pressure on defendants. They also challenged the extradition process under the Extradition Act 2003. [CaseMine+2The Guardian]casemine.comMcKinnon v USA & Anor | England and Wales High Court…3 Apr 2007 — Contended that the plea bargain negotiations and subsequent…
These arguments failed in the High Court. In 2007 the court upheld the extradition decision, clearing the way for a further appeal. McKinnon then took the case to the House of Lords, which at that time was the UK’s highest appellate court. [The Guardian]theguardian.comLast year, he lost a high court appeal against a government decisionThe GuardianBritish hacker should not be extradited to US, Lords told16 Jun 2008 — McKinnon was first arrested in 2002 but has never been…
The House of Lords’ July 2008 judgment became one of the most important defeats in the entire saga. McKinnon’s legal team argued that the disparity between potential sentences after a guilty plea and those following a contested trial amounted to an abuse of process. The Law Lords rejected that argument. Lord Brown stated that extradition arrangements necessarily required British courts to accommodate differences between legal systems and that those differences did not justify blocking extradition in McKinnon’s case. [UK Parliament+2UK Parliament]publications.parliament.ukmckinn 1UK ParliamentMckinnon V Government of The United States of America…30 Jul 2008 — On 7 October 2004 the respondent government requested…
The ruling was significant because it removed one of the strongest legal avenues available at the time. It also reinforced a broader judicial principle: courts would generally not refuse extradition simply because another country’s criminal justice system operated differently from Britain’s. [UK Parliament]publications.parliament.ukmckinn 1UK ParliamentMckinnon V Government of The United States of America…30 Jul 2008 — On 7 October 2004 the respondent government requested…
Why the Courts Were Unpersuaded
Several recurring themes explain why McKinnon kept losing during this period:
- Judges treated the case primarily as an extradition matter, not as a referendum on the fairness of US cybercrime laws.
- The alleged offences were regarded as serious enough to justify prosecution in the United States.
- The courts found that existing extradition treaties and legislation had been properly followed.
- Arguments about forum—the question of whether the case should be tried in Britain instead—had limited legal force under the rules then in place. [UK Parliament+2The Guardian]publications.parliament.ukmckinn 1UK ParliamentMckinnon V Government of The United States of America…30 Jul 2008 — On 7 October 2004 the respondent government requested…
Critics later argued that this approach gave insufficient weight to proportionality and to the fact that McKinnon was a British citizen accused of actions carried out from his home in London. Yet those criticisms largely emerged in the political debate rather than succeeding in court. [Hansard]hansard.parliament.ukHansard Gary Mc Kinnon (ExtraditionGary McKinnon (Extradition) - Hansard - UK Parliament1 Dec 2009 — Given that Lord Justice Stanley Burnton indicated that if Gary M…
The European Court of Human Rights Refusal
After the House of Lords defeat, McKinnon turned to the European Court of Human Rights (ECHR), hoping that human-rights protections would stop extradition. This was widely viewed by supporters as one of his last realistic legal options. [The Guardian]theguardian.comMc Kinnon turned to the European court of human rightsThe GuardianHacker Gary McKinnon loses appeal against extradition to…28 Aug 2008 — Last month, he lost his battle against extradition…
The Strasbourg court initially imposed a temporary stay while it considered the application. However, in August 2008 the court refused to halt the extradition permanently. The refusal was a major setback because it indicated that the judges did not believe the human-rights arguments presented at that stage justified intervention. [The Guardian]theguardian.comMc Kinnon turned to the European court of human rightsThe GuardianHacker Gary McKinnon loses appeal against extradition to…28 Aug 2008 — Last month, he lost his battle against extradition…
For campaigners, the decision was particularly disappointing because the ECHR is often seen as a final safeguard against disproportionate state action. In McKinnon’s case, however, the court declined to become the mechanism that would block extradition. That left him facing the prospect of surrender to US authorities despite years of litigation. [The Guardian]theguardian.comMc Kinnon turned to the European court of human rightsThe GuardianHacker Gary McKinnon loses appeal against extradition to…28 Aug 2008 — Last month, he lost his battle against extradition…
The result also reinforced a perception among critics that conventional legal arguments had been exhausted. By late 2008, the case appeared to be moving steadily toward extradition rather than away from it. [The Guardian]theguardian.comgary mckinnon timeline extraditionEuropean court of human rights to stay the extradition on 28 August. Then-home secretary Jacqui Smith rejects a request from McKinnon's…
How the Legal Argument Shifted After the Asperger’s Diagnosis
The turning point was not a sudden change in extradition law but a gradual shift in the evidence being presented. In 2008 McKinnon was diagnosed with Asperger’s syndrome, a condition on the autism spectrum. His lawyers increasingly argued that extradition would have severe consequences for his mental health and could create a substantial risk of suicide. [The Guardian+2GOV.UK]theguardian.comgary mckinnon timeline extraditionEuropean court of human rights to stay the extradition on 28 August. Then-home secretary Jacqui Smith rejects a request from McKinnon's…
Initially, those arguments did not immediately succeed. In November 2008 the Home Secretary concluded that extradition would not breach McKinnon’s human rights. A subsequent judicial challenge was dismissed by the High Court in 2009, and further attempts to appeal were rejected. From a legal perspective, the losing streak continued. [GOV.UK]GOV.UKlatest on gary mckinnon case4 Nov 2010 —… Asperger's Syndrome November 2008 - the then Home Secretary decides that extradition would not breach Mr McKinnon's huma…
What changed was the quality and weight of the medical evidence. Over time, psychiatrists produced increasingly detailed assessments suggesting that extradition posed an exceptional danger to McKinnon’s mental wellbeing. By 2010, parts of the judiciary were acknowledging that the suicide-risk evidence deserved closer scrutiny. A High Court judge later held that there were arguable grounds to reconsider whether extradition would be compatible with McKinnon’s human rights in light of the medical evidence. [The Guardian]theguardian.comgary mckinnon medical report us extraditionThe GuardianGary McKinnon medical report offers hope against US…12 Oct 2012 — 13 January 2010 A high court judge says McKinnon would b…
This marked a fundamental shift in strategy. Earlier appeals had concentrated on extradition law, forum questions and procedural fairness. The later phase focused on human rights, mental health and the state’s obligation not to expose an individual to a serious risk of self-harm. The argument was no longer primarily that extradition was legally flawed; it was that extradition, in this particular case, would be disproportionately harmful. [The Guardian+2GOV.UK]theguardian.comgary mckinnon medical report us extraditionThe GuardianGary McKinnon medical report offers hope against US…12 Oct 2012 — 13 January 2010 A high court judge says McKinnon would b…
Why the Earlier Defeats Made the 2012 Decision So Remarkable
By the time Home Secretary Theresa May blocked extradition in October 2012, McKinnon had already lost before the High Court, lost before the House of Lords, failed to obtain lasting relief from the European Court of Human Rights, and seen multiple government decisions uphold extradition. The prevailing expectation for years had been that the legal process would eventually end with his removal to the United States. [UK Parliament+2The Guardian]publications.parliament.ukmckinn 1UK ParliamentMckinnon V Government of The United States of America…30 Jul 2008 — On 7 October 2004 the respondent government requested…
May’s decision therefore did not arrive after a string of courtroom victories. It arrived after a decade in which the courts had mostly rejected McKinnon’s arguments. The final reversal rested on a different assessment: that the medical evidence demonstrated such a high risk of suicide that extradition would be incompatible with his human rights. [GOV.UK]gov.ukHe has asperger's syndrome, and suffers …Read moreGary McKinnon extradition case: Home Secretary's statement16 Oct 2012 — Statement made on 16 October 2012 by Home Secretary Theresa May o…
That contrast explains why the 2012 outcome remains one of the most debated aspects of the McKinnon saga. The years of failed appeals created the impression that every legal door had closed. The eventual decision to halt extradition was dramatic precisely because it came after so many authoritative institutions had previously refused to stop it. [GOV.UK+2GOV.UK]gov.ukHe has asperger's syndrome, and suffers …Read moreGary McKinnon extradition case: Home Secretary's statement16 Oct 2012 — Statement made on 16 October 2012 by Home Secretary Theresa May o…
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Endnotes
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Source: publications.parliament.uk
Title: mckinn 1
Link: https://publications.parliament.uk/pa/ld200708/ldjudgmt/jd080730/mckinn-1.htmSource snippet
UK ParliamentMckinnon V Government of The United States of America...30 Jul 2008 — On 7 October 2004 the respondent government requested...
Published: October 2004
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Source: GOV.UK
Title: latest on gary mckinnon case
Link: https://www.gov.uk/government/news/latest-on-gary-mckinnon-caseSource snippet
4 Nov 2010 —... Asperger's Syndrome November 2008 - the then Home Secretary decides that extradition would not breach Mr McKinnon's huma...
Published: November 2008
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Source: GOV.UK
Link: https://www.gov.uk/government/speeches/gary-[mckinnon-extraditionSource snippet
Gary McKinnon extradition case: Home Secretary's statement16 Oct 2012 — Statement made on 16 October 2012 by Home Secretary Theresa May o...
Published: October 2012
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Source: casemine.com
Link: https://www.casemine.com/judgement/uk/5a8ff75e60d03e7f57eabd29Source snippet
McKinnon v USA & Anor | England and Wales High Court...3 Apr 2007 — Contended that the plea bargain negotiations and subsequent...
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Source: publications.parliament.uk
Link: https://publications.parliament.uk/pa/ld200708/ldjudgmt/jd080730/mckinn-2.htmSource snippet
having insisted on exercising [his] rights under [English] law"? These are...
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Source: hansard.parliament.uk
Title: Hansard Gary [Mc Kinnon]({{ ‘mc-kinnon/’ | relative_url }}) (Extradition)
Link: https://hansard.parliament.uk/commons/2009-12-01/debates/09120144000002/GaryMckinnon%28Extradition%29Source snippet
Gary McKinnon (Extradition) - Hansard - UK Parliament1 Dec 2009 — Given that Lord Justice Stanley Burnton indicated that if Gary M...
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Source: GOV.UK
Title: theresa may statement on gary mckinnon extradition
Link: https://www.gov.uk/government/news/theresa-may-statement-on-gary-mckinnon-extraditionSource snippet
But there is also no doubt that he is seriously ill. He has asperger's syndrome, and suffers from...Read more...
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Source: committees.parliament.uk
Link: https://committees.parliament.uk/writtenevidence/53322/html/Source snippet
parliament.ukEXL0062 - Evidence on Extradition LawHome Secretary Teresa May blocked the extradition of Gary McKinnon. Gary McKinnon conte...
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Source: committees.parliament.uk
Link: https://committees.parliament.uk/committee/83/home-affairs-committee/news/179615/chair-writes-to-home-secretary-regarding-gary-mckinnon-and-extradition/Source snippet
writes to Home Secretary regarding Gary McKinnon...Committee Chair Rt Hon Keith Vaz MP has written to the Home Secretary following her s...
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Source: parliament.uk
Link: https://www.parliament.uk/business/news/news-by-year/2012/october/statement-on-gary-mckinnon/Source snippet
Statement on Gary McKinnonSecretary of State for the Home Department, Theresa May made a statement in the House of Commons on Tuesday 16...
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Source: edm.parliament.uk
Title: extradition of gary mckinnon
Link: https://edm.parliament.uk/early-day-motion/36777/extradition-of-gary-mckinnonSource snippet
OF GARY MCKINNON - Early Day MotionsUrges the Home Secretary not to permit the extradition to the United States of Mr Gary McKinnon of Pa...
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Source: assets.publishing.service.gov.uk
Title: public views 3
Link: https://assets.publishing.service.gov.uk/media/5a7af96ae5274a319e77c120/public-views-3.pdfSource snippet
Views27 Jan 2011 — In the case of Gary McKinnon, he should undoubtedly be released from the threat of extradition to the. United States...
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Source: criminal.laws.com
Title: gary mckinnon
Link: https://criminal.laws.com/gary-mckinnonSource snippet
McKinnon - LAWS.com - Criminal22 Dec 2019 — Gary McKinnon appealed this decision, losing an appeal in British high court in 2007 and in t...
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Source: theguardian.com
Title: Last year, he lost a high court appeal against a government decision
Link: https://www.theguardian.com/technology/2008/jun/16/hacking.internationalcrimeSource snippet
The GuardianBritish hacker should not be extradited to US, Lords told16 Jun 2008 — McKinnon was first arrested in 2002 but has never been...
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Source: Wikipedia
Title: Gary Mc Kinnon
Link: https://en.wikipedia.org/wiki/Gary_McKinnonSource snippet
Gary McKinnonOn 16 October 2012, after a series of legal proceedings in Britain, then Home Secretary Theresa May blocked extradition t...
Published: October 2012
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Source: theguardian.com
Title: gary mckinnon case double standards
Link: https://www.theguardian.com/world/blog/2012/oct/17/gary-mckinnon-case-double-standardsSource snippet
Gary McKinnon: a case of double standards?17 Oct 2012 — The home secretary's decision not to extradite the Crouch End Asperger's sufferer...
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Source: theguardian.com
Title: Mc Kinnon turned to the European court of human rights
Link: https://www.theguardian.com/technology/2008/aug/28/hacking.securitySource snippet
The GuardianHacker Gary McKinnon loses appeal against extradition to...28 Aug 2008 — Last month, he lost his battle against extradition...
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Source: theguardian.com
Title: gary [mckinnon timeline]({{ ‘timeline/’ | relative_url }}) extradition
Link: https://www.theguardian.com/world/2012/oct/16/gary-mckinnon-timeline-extraditionSource snippet
European court of human rights to stay the extradition on 28 August. Then-home secretary Jacqui Smith rejects a request from McKinnon's...
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Source: theguardian.com
Title: gary mckinnon medical report us extradition
Link: https://www.theguardian.com/world/2012/oct/12/gary-mckinnon-medical-report-us-extraditionSource snippet
The GuardianGary McKinnon medical report offers hope against US...12 Oct 2012 — 13 January 2010 A high court judge says McKinnon would b...
Published: January 2010
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Source: theguardian.com
Title: gary mckinnon theresa may claims
Link: https://www.theguardian.com/world/2012/oct/19/gary-mckinnon-theresa-may-claimsSource snippet
Theresa May accused of taking 'easy way out' over Gary...18 Oct 2012 — Theresa May told US authorities in July that there were no legal...
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Source: theguardian.com
Title: gary mckinnon no [uk charges]({{ ‘uk-charges/’ | relative_url }})
Link: https://www.theguardian.com/world/2012/dec/14/gary-mckinnon-no-uk-chargesSource snippet
Gary McKinnon will face no charges in UK14 Dec 2012 — No further legal action will be taken in Britain against the computer hacker Gary M...
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Source: theguardian.com
Title: gary mckinnon feels set free
Link: https://www.theguardian.com/world/2012/oct/17/gary-mckinnon-feels-set-freeSource snippet
Gary McKinnon feels 'set free' after US extradition decision17 Oct 2012 — The computer hacker whose extradition to the US was blocked by...
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Source: theguardian.com
Link: https://www.theguardian.com/world/video/2012/oct/16/gary-mckinnon-extradition-theresa-may-videoSource snippet
Gary McKinnon extradition halted by Theresa May – videoThe home secretary announces the withdrawal of an extradition order to the United...
Additional References
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Source: ukhumanrightsblog.com
Title: gary mckinnon price charles letters and free speech the human rights roundup
Link: https://ukhumanrightsblog.com/2012/10/22/gary-mckinnon-price-charles-letters-and-free-speech-the-human-rights-roundup/Source snippet
Gary McKinnon, Prince Charles' letters and free speech22 Oct 2012 — Gary McKinnon will not be extradited to the US for hacking into the P...
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Source: vlex.co.uk
Link: https://vlex.co.uk/vid/r-mckinnon-v-secretary-793475865Source snippet
R (McKinnon) v Secretary of State for the Home DepartmentThe District Judge has sent the case to the Secretary of State pursuant to secti...
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Source: hrlc.org.au
Link: https://www.hrlc.org.au/case-summaries/european-court-rejects-extradition-request-on-basis-of-acute-mental-illness/Source snippet
igh Court upholds lawfulness of refugee deportation to Nauru, despite [health risks]({{ 'health-risk/' | relative_url }}). Read more...
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Source: journals.law.unc.edu
Title: u k ends 10 year extradition battle of hacker gary mckinnon
Link: https://journals.law.unc.edu/ncjolt/blogs/u-k-ends-10-year-extradition-battle-of-hacker-gary-mckinnon/Source snippet
Ends 10 Year Extradition Battle of Hacker Gary McKinnon17 Oct 2012 — Theresa May announced on Tuesday that British hacker Gary McKinnon w...
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Source: news.sky.com
Title: hacker gary mckinnon faces no further action 10460721
Link: https://news.sky.com/story/hacker-gary-mckinnon-faces-no-further-action-10460721Source snippet
Gary McKinnon Faces No Further Action14 Dec 2012 — The decision follows a review after the Government decided he should not be extradited...
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Source: libertyhumanrights.org.uk
Link: https://www.libertyhumanrights.org.uk/wp-content/uploads/2020/04/Libertys-submission-to-the-JCHR-extradition-inquiry-Jan-2011.pdfSource snippet
ition law and practice in the UK and identify what we consider to be the key flaws...
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Source: mentalhealthlaw.co.uk
Title: R (McKinnon) v SSHA (2009) EWHC 2021 (Admin)
Link: https://www.mentalhealthlaw.co.uk/R_%28McKinnon%29v_SSHA%282009%29EWHC_2021%28Admin%29Source snippet
R (McKinnon) v SSHA [2009] EWHC 2021 (Admin)Because of the claimant's Asperger's Syndrome, extradition to the US would cause his mental h...
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Source: journals.sagepub.com
Link: https://journals.sagepub.com/doi/10.1177/0022018320902544Source snippet
[Forum Bar]({{ 'forum-bar/' | relative_url }}) in UK Extradition Law: An Unnecessary...30 Jan 2020 — Upon appeal, the High Court barred his extradition on the grounds of for...
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Source: learningdisabilitytoday.co.uk
Title: home secretary blocks gary mckinnons extradition to us
Link: https://www.learningdisabilitytoday.co.uk/news/home-secretary-blocks-gary-mckinnons-extradition-to-us/Source snippet
Home Secretary blocks Gary McKinnon's extradition to US19 Oct 2012 — Secretary Theresa May has blocked the proposed extradition to the US...
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Source: theregister.com
Title: mckinnon loses lords appeal
Link: https://www.theregister.com/offbeat/2008/07/30/mckinnon-loses-lords-appeal/827846Source snippet
30 Jul 2008 — A House of Lords hearing heard that McKinnon was told he'd face a sentence of between three and four years if he pleaded gu...
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