Why Serious Allegations Were Not Enough

Introduction

When British authorities reconsidered Gary McKinnon’s case after extradition to the United States was blocked in 2012, the central question was not whether the allegations were serious, politically sensitive, or widely reported. The key question under the Crown Prosecution Service (CPS) charging framework was whether there was enough admissible evidence to give a realistic prospect of conviction in a British court. The answer reached by the CPS and police was effectively no. Their conclusion illustrates an important feature of English criminal procedure: even where alleged conduct appears substantial, prosecutors are not supposed to proceed unless they believe a properly directed court is more likely than not to convict on the available evidence.[theguardian.com]theguardian.comgary mckinnon no uk chargesThe GuardianGary McKinnon will face no charges in UKDec 14, 2012 — No further legal action will be taken in Britain against the computer…

The McKinnon decision is therefore best understood as an application of the CPS evidential test rather than as a judgment that the allegations lacked seriousness. In fact, the seriousness of the allegations was largely accepted. The difficulty was proving a case in Britain that accurately reflected the alleged conduct and could realistically succeed before a UK court.[iowastatedaily.com]iowastatedaily.comIowa State Daily Prosecutors: Mc Kinnon to face no UK charges over U.SLONDON — Computer hacker Gary McKinnon will face no charges in the United Kingdom over what the U.S. government says is the biggest milit…

Why Serious Allegations Were Not Enough

The evidential stage explained

Under the Code for Crown Prosecutors, the first stage of the Full Code Test asks whether there is sufficient evidence to provide a “realistic prospect of conviction”. In practical terms, prosecutors must assess whether an objective court, properly directed in law, would be more likely than not to convict on the evidence that could actually be presented at trial. If that evidential stage is not met, the case should not proceed regardless of public interest considerations or the seriousness of the alleged conduct.[Wikipedia]WikipediaCrown Prosecution ServiceCrown Prosecution Service

That distinction mattered enormously in McKinnon’s case. By 2012, the public debate had become dominated by extradition, human-rights concerns, Asperger syndrome, and McKinnon’s claims that he had searched for evidence relating to UFOs. None of those issues answered the CPS question. Prosecutors had to evaluate whether specific criminal charges could be proved in a British court through admissible evidence and available witnesses.[GOV.UK]gov.ukIt will now be for the director of public prosecutions to decide whether …Read moreGary McKinnon extradition case: Home Secretary's statement16 Oct 2012 — I have therefore withdrawn the extradition order against Mr McKinnon

The CPS review took place only after Home Secretary Theresa May halted extradition on human-rights grounds and referred the matter back to the Director of Public Prosecutions for consideration of any domestic prosecution. The fact that extradition was blocked did not automatically create a viable UK case. Prosecutors still had to apply the ordinary charging test.[GOV.UK]gov.ukIt will now be for the director of public prosecutions to decide whether …Read moreGary McKinnon extradition case: Home Secretary's statement16 Oct 2012 — I have therefore withdrawn the extradition order against Mr McKinnon

How admissible evidence shaped the decision

The major obstacle was not proving that McKinnon had accessed American systems. He had publicly acknowledged unauthorised access, and the allegations had been investigated for years. The problem was building a prosecution in Britain that reflected the full scope of what US authorities alleged had occurred.[IT Pro]itpro.comcps confirms gary mckinnon will not face charges in the ukIT ProCPS confirms Gary McKinnon will not face charges in the UKDec 17, 2012 — The Crown Prosecution Service (CPS) has confirmed that com…

Much of the crucial evidence was located in the United States. The affected computer systems belonged to US military agencies and NASA. The witnesses who could explain the nature of the intrusions, the extent of disruption, the consequences for operations, and the costs of recovery were largely American personnel. Presenting that evidence in a British criminal trial would have involved significant practical and legal difficulties.[iowastatedaily.com]iowastatedaily.comIowa State Daily Prosecutors: Mc Kinnon to face no UK charges over U.SLONDON — Computer hacker Gary McKinnon will face no charges in the United Kingdom over what the U.S. government says is the biggest milit…

This was not merely a logistical inconvenience. The realistic prospect test requires prosecutors to consider what evidence will actually be available and admissible before a court. Evidence that exists in theory but cannot readily be presented through witnesses and proper procedures may have limited value when assessing conviction prospects. Contemporary reports of the CPS decision referred specifically to difficulties concerning witnesses and the prospects of obtaining a conviction in Britain.[aameranwar.co.uk]aameranwar.co.ukhacker gary mackinnons extradition to us stoppedAamer Anwar & Co.HACKER GARY MACKINNON'S EXTRADITION TO US…14 Dec 2012 — A RELIEVED Gary McKinnon wept with joy yesterday after being…

The joint Metropolitan Police–CPS review therefore focused on whether a fresh UK investigation could produce a prosecutable case. The panel ultimately advised against pursuing that route, and the recommendation was accepted.[The Guardian]theguardian.comgary mckinnon no uk chargesThe GuardianGary McKinnon will face no charges in UKDec 14, 2012 — No further legal action will be taken in Britain against the computer…

The Meaning of “Realistic Prospect” in This Case

A common misunderstanding is that prosecutors must charge whenever there is evidence of wrongdoing. The CPS standard is narrower. Prosecutors must ask whether the evidence is strong enough to persuade a court beyond reasonable doubt.

In McKinnon’s case, officials concluded that the prospects of securing a conviction that reflected the alleged full criminality were not high. That wording is significant. It suggests concern not simply about obtaining any conviction on any charge, but about whether the available UK case could properly represent the scale and seriousness alleged by US authorities.[Iowa State Daily]iowastatedaily.comIowa State Daily Prosecutors: Mc Kinnon to face no UK charges over U.SLONDON — Computer hacker Gary McKinnon will face no charges in the United Kingdom over what the U.S. government says is the biggest milit…

This helps explain why the decision was not framed as an exoneration. British authorities did not announce that the allegations were false. Nor did they conclude that unauthorised access had not occurred. Instead, they concluded that a prosecution in Britain faced evidential weaknesses substantial enough to undermine confidence in achieving a conviction that matched the case as it had been presented by the United States.[iowastatedaily.com]iowastatedaily.comIowa State Daily Prosecutors: Mc Kinnon to face no UK charges over U.SLONDON — Computer hacker Gary McKinnon will face no charges in the United Kingdom over what the U.S. government says is the biggest milit…

The distinction is important because criminal charging decisions are predictive. Prosecutors are not deciding historical truth in the abstract. They are assessing what can be proved under courtroom rules of evidence.

Why the CPS Could Not Rely on Public Admissions Alone

Another frequent misconception is that McKinnon’s public statements should have made prosecution straightforward. He openly discussed accessing US systems and explained that he had been searching for information relating to UFOs and other matters.[The Guardian]theguardian.comgary mckinnon feels set freeThe GuardianGary McKinnon feels 'set free' after US extradition decision17 Oct 2012 — The computer hacker whose extradition to the US was…

However, public admissions do not automatically resolve the evidential stage. Prosecutors still need legally admissible evidence establishing the elements of particular offences. They must be able to prove the identity of the defendant, the conduct alleged, the relevant intent where required, and any aggravating features that justify the charges brought.

A defendant’s statements may form part of that picture, but they do not replace the technical evidence, witness testimony, forensic records, and documentary material necessary to construct a complete criminal case. In a transnational cybercrime matter involving US military and government systems, those evidential requirements were especially demanding. Iowa State Daily+2Aamer Anwar & Co.[iowastatedaily.com]iowastatedaily.comIowa State Daily Prosecutors: Mc Kinnon to face no UK charges over U.SLONDON — Computer hacker Gary McKinnon will face no charges in the United Kingdom over what the U.S. government says is the biggest milit…

What the CPS Test Reveals About the Outcome

The McKinnon decision demonstrates a basic but often overlooked principle of British criminal justice: seriousness alone cannot satisfy the charging standard.

The allegations against McKinnon were repeatedly described by US authorities as exceptionally serious. Yet the CPS was required to ask a narrower question: could prosecutors realistically secure a conviction in a British court using evidence that was available, admissible, and capable of proving the case to the criminal standard? After reviewing the matter with police, the answer was judged to be negative.[theguardian.com]theguardian.comgary mckinnon no uk chargesThe GuardianGary McKinnon will face no charges in UKDec 14, 2012 — No further legal action will be taken in Britain against the computer…

That is why the absence of a UK prosecution should not be interpreted as a finding that nothing happened. The decision reflected the operation of the CPS evidential test. Once extradition was removed as an option, prosecutors examined whether a domestic prosecution met the “realistic prospect of conviction” threshold and concluded that it did not. In the logic of the CPS charging framework, that finding alone was sufficient to end the case, however serious the underlying allegations remained.[sky.com]news.sky.comhacker gary mckinnon faces no further action 10460721Sky NewsHacker Gary McKinnon Faces No Further Action14 Dec 2012 — Computer hacker Gary McKinnon will face no further criminal action, the…

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Endnotes

1. 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

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

3. Source: Wikipedia
Title: Crown Prosecution Service
Link:https://en.wikipedia.org/wiki/Crown_Prosecution_Service

4. Source: Wikipedia
Title: Gary [Mc Kinnon]({{ ‘mc-kinnon/’ | relative_url }})
Link:https://en.wikipedia.org/wiki/Gary_McKinnon

Published: October 2012

5. 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

6. Source: iowastatedaily.com
Title: Iowa State Daily Prosecutors: Mc Kinnon to face no UK charges over U.S
Link:https://iowastatedaily.com/127886/news-world/prosecutors-mckinnon-to-face-no-uk-charges-over-u-s-hacking/

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

8. Source: itpro.com
Title: cps confirms gary mckinnon will not face charges in the uk
Link:https://www.itpro.com/644716/cps-confirms-gary-mckinnon-will-not-face-charges-in-the-uk

9. Source: hansard.parliament.uk
Title: Hansard Gary Mc Kinnon (Extradition)
Link:https://hansard.parliament.uk/commons/2009-12-01/debates/09120144000002/GaryMckinnon%28Extradition%29

10. Source: aameranwar.co.uk
Title: hacker gary mackinnons extradition to us stopped
Link:https://aameranwar.co.uk/hacker-gary-mackinnons-extradition-to-us-stopped

11. Source: theguardian.com
Title: gary mckinnon
Link:https://www.theguardian.com/world/gary-mckinnon

Published: December 2012

12. Source: itv.com
Title: gary mckinnon
Link:https://www.itv.com/news/story/2012-12-14/gary-mckinnon

Additional References

13. Source: vlex.co.uk
Link:https://vlex.co.uk/vid/mckinnon-v-united-states-793612009

14. Source: youtube.com
Link:https://www.youtube.com/watch?v=viLcoe_xPMU

15. Source: thetimes.com
Title: hacker gary mckinnon faces no uk criminal action gjnw293j207
Link:https://www.thetimes.com/world/us-world/article/hacker-gary-mckinnon-faces-no-uk-criminal-action-gjnw293j207

16. Source: itnews.com.au
Title: gary mckinnon dealt new blow by cps 138354
Link:https://www.itnews.com.au/news/gary-mckinnon-dealt-new-blow-by-cps-138354

17. Source: theregister.com
Link:https://www.theregister.com/security/2012/11/07/uk-prosecutors-cops-ponder-new-probe-into-nasa-hacker-mckinnon/1451558

18. Source: silicon.co.uk
Title: gary mckinnon cps uk charges 102027
Link:https://www.silicon.co.uk/workspace/gary-mckinnon-cps-uk-charges-102027

19. Source: aljazeera.com
Title: no more charges for pentagon hacker
Link:https://www.aljazeera.com/news/2012/12/15/no-more-charges-for-pentagon-hacker

20. Source: committees.parliament.uk
Link:https://committees.parliament.uk/writtenevidence/54838/html/

Published: December 2012

21. Source: theregister.com
Title: pentagon hacker mckinnon will not be prosecuted in the uk
Link:https://www.theregister.com/offbeat/2012/12/14/pentagon-hacker-mckinnon-will-not-be-prosecuted-in-the-uk/1304890

22. Source: abc.net.au
Title: ABC News UK blocks hacker’s extradition to US
Link:https://www.abc.net.au/worldtoday/archive/articles/2012/10/17/s3612398.htm