Why Mc Kinnon Kept Losing In Court

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.[parliament.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…Published: October 2004

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…Published: October 2004

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.com]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]publications.parliament.ukmckinn 1UK ParliamentMckinnon V Government of The United States of America…30 Jul 2008 — On 7 October 2004 the respondent government requested…Published: October 2004

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…Published: October 2004

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.[parliament.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…Published: October 2004

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.[theguardian.com]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…Published: November 2008

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…Published: January 2010

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.[theguardian.com]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…Published: January 2010

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.[parliament.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…Published: October 2004

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]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

1. Source: publications.parliament.uk
Title: mckinn 1
Link:https://publications.parliament.uk/pa/ld200708/ldjudgmt/jd080730/mckinn-1.htm

Published: October 2004

2. Source: GOV.UK
Title: latest on gary mckinnon case
Link:https://www.gov.uk/government/news/latest-on-gary-mckinnon-case

Published: November 2008

3. Source: GOV.UK
Link:https://www.gov.uk/government/speeches/gary-[mckinnon-extradition

Published: October 2012

4. Source: casemine.com
Link:https://www.casemine.com/judgement/uk/5a8ff75e60d03e7f57eabd29

5. Source: publications.parliament.uk
Link:https://publications.parliament.uk/pa/ld200708/ldjudgmt/jd080730/mckinn-2.htm

6. 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%29

7. Source: GOV.UK
Title: theresa may statement on gary mckinnon extradition
Link:https://www.gov.uk/government/news/theresa-may-statement-on-gary-mckinnon-extradition

8. Source: committees.parliament.uk
Link:https://committees.parliament.uk/writtenevidence/53322/html/

9. 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/

10. Source: parliament.uk
Link:https://www.parliament.uk/business/news/news-by-year/2012/october/statement-on-gary-mckinnon/

11. Source: edm.parliament.uk
Title: extradition of gary mckinnon
Link:https://edm.parliament.uk/early-day-motion/36777/extradition-of-gary-mckinnon

12. Source: assets.publishing.service.gov.uk
Title: public views 3
Link:https://assets.publishing.service.gov.uk/media/5a7af96ae5274a319e77c120/public-views-3.pdf

13. Source: criminal.laws.com
Title: gary mckinnon
Link:https://criminal.laws.com/gary-mckinnon

14. 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.internationalcrime

15. Source: Wikipedia
Title: Gary Mc Kinnon
Link:https://en.wikipedia.org/wiki/Gary_McKinnon

Published: October 2012

16. Source: theguardian.com
Title: gary mckinnon case double standards
Link:https://www.theguardian.com/world/blog/2012/oct/17/gary-mckinnon-case-double-standards

17. Source: theguardian.com
Title: Mc Kinnon turned to the European court of human rights
Link:https://www.theguardian.com/technology/2008/aug/28/hacking.security

18. Source: theguardian.com
Title: gary [mckinnon timeline]({{ ‘timeline/’ | relative_url }}) extradition
Link:https://www.theguardian.com/world/2012/oct/16/gary-mckinnon-timeline-extradition

19. Source: theguardian.com
Title: gary mckinnon medical report us extradition
Link:https://www.theguardian.com/world/2012/oct/12/gary-mckinnon-medical-report-us-extradition

Published: January 2010

20. Source: theguardian.com
Title: gary mckinnon theresa may claims
Link:https://www.theguardian.com/world/2012/oct/19/gary-mckinnon-theresa-may-claims

21. 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-charges

22. Source: theguardian.com
Title: gary mckinnon feels set free
Link:https://www.theguardian.com/world/2012/oct/17/gary-mckinnon-feels-set-free

23. Source: theguardian.com
Link:https://www.theguardian.com/world/video/2012/oct/16/gary-mckinnon-extradition-theresa-may-video

Additional References

24. 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/

25. Source: vlex.co.uk
Link:https://vlex.co.uk/vid/r-mckinnon-v-secretary-793475865

26. Source: hrlc.org.au
Link:https://www.hrlc.org.au/case-summaries/european-court-rejects-extradition-request-on-basis-of-acute-mental-illness/

27. 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/

28. 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-10460721

29. Source: libertyhumanrights.org.uk
Link:https://www.libertyhumanrights.org.uk/wp-content/uploads/2020/04/Libertys-submission-to-the-JCHR-extradition-inquiry-Jan-2011.pdf

30. 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%29

31. Source: journals.sagepub.com
Link:https://journals.sagepub.com/doi/10.1177/0022018320902544

32. 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/

33. Source: theregister.com
Title: mckinnon loses lords appeal
Link:https://www.theregister.com/offbeat/2008/07/30/mckinnon-loses-lords-appeal/827846