Within No UK Trial
Why Serious Allegations Were Not Enough
British prosecutors had to ask whether admissible evidence could realistically convict McKinnon, not whether the story was famous or suspicious.
On this page
- The evidential stage explained
- How admissible evidence shaped the decision
- Why seriousness cannot replace proof
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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. [The Guardian+2Sky News]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. [Iowa State Daily+2The Guardian]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. [Iowa State Daily+2Hansard]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. [Aamer Anwar & Co.+2Iowa State Daily]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. [Iowa State Daily+2The Guardian]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. [The Guardian+2Iowa State Daily]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 News+2The Guardian]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
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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
Sky NewsHacker Gary McKinnon Faces No Further Action14 Dec 2012 — Computer hacker Gary McKinnon will face no further criminal action, the...
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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 — I have therefore withdrawn the extradition order against Mr McKinnon...
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Source: Wikipedia
Title: Crown Prosecution Service
Link: https://en.wikipedia.org/wiki/Crown_Prosecution_Service -
Source: Wikipedia
Title: Gary [Mc Kinnon]({{ ‘mc-kinnon/’ | relative_url }})
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 no [uk charges]({{ ‘uk-charges/’ | relative_url }})
Link: https://www.theguardian.com/world/2012/dec/14/gary-mckinnon-no-uk-chargesSource snippet
The GuardianGary McKinnon will face no charges in UKDec 14, 2012 — No further legal action will be taken in Britain against the computer...
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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/Source snippet
LONDON — Computer hacker Gary McKinnon will face no charges in the United Kingdom over what the U.S. government says is the biggest milit...
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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
The GuardianGary McKinnon feels 'set free' after US extradition decision17 Oct 2012 — The computer hacker whose extradition to the US was...
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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-ukSource snippet
IT ProCPS confirms Gary McKinnon will not face charges in the UKDec 17, 2012 — The Crown Prosecution Service (CPS) has confirmed that com...
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Source: hansard.parliament.uk
Title: Hansard Gary Mc Kinnon (Extradition)
Link: https://hansard.parliament.uk/commons/2009-12-01/debates/09120144000002/GaryMckinnon%28Extradition%29Source snippet
McKinnon (Extradition) - Hansard - UK Parliament1 Dec 2009 — The Home Secretary has got compelling evidence today that the decision not t...
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Source: aameranwar.co.uk
Title: hacker gary mackinnons extradition to us stopped
Link: https://aameranwar.co.uk/hacker-gary-mackinnons-extradition-to-us-stoppedSource snippet
Aamer Anwar & Co.HACKER GARY MACKINNON'S EXTRADITION TO US...14 Dec 2012 — A RELIEVED Gary McKinnon wept with joy yesterday after being...
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Source: theguardian.com
Title: gary mckinnon
Link: https://www.theguardian.com/world/gary-mckinnonSource snippet
December 2012. Gary McKinnon and his mother [Janis Sharp]({{ 'janis-sharp/' | relative_url }}). My first... Gary McKinnon will face no charges in UK. Dec 14 2012 11.03 EST. No...
Published: December 2012
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Source: itv.com
Title: gary mckinnon
Link: https://www.itv.com/news/story/2012-12-14/gary-mckinnonSource snippet
No charges against US hackerDec 14, 2012 — The Crown Prosecution Service have declared their decision not to prosecute Gary McKinnon in t...
Additional References
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Source: vlex.co.uk
Link: https://vlex.co.uk/vid/mckinnon-v-united-states-793612009Source snippet
McKinnon v United States of AmericaMr McKinnon now appeals against those decisions. The USA has been designated a category 2 territory pu...
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Source: youtube.com
Link: https://www.youtube.com/watch?v=viLcoe_xPMUSource snippet
Gary McKinnon will not face prosecution in the UKGary McKinnon and his family have fought to protect him from extradition to America over...
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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-gjnw293j207Source snippet
Hacker Gary McKinnon faces no UK criminal actionDec 14, 2012 — The computer hacker Gary McKinnon will not stand trial in the UK, the Dire...
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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-138354Source snippet
Gary McKinnon dealt new blow by CPSFeb 27, 2009 — British hacker Gary McKinnon's hopes of being tried in the UK were dealt a massive blow...
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Source: theregister.com
Link: https://www.theregister.com/security/2012/11/07/uk-prosecutors-cops-ponder-new-probe-into-nasa-hacker-mckinnon/1451558Source snippet
UK prosecutors, cops ponder new probe into NASA hacker...Nov 7, 2012 — May said UK prosecutors will review whether McKinnon, who lives i...
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Source: silicon.co.uk
Title: gary mckinnon cps uk charges 102027
Link: https://www.silicon.co.uk/workspace/gary-mckinnon-cps-uk-charges-102027Source snippet
Gary McKinnon To Face No UK Charges But Fight With US...Dec 14, 2012 — Gary McKinnon is close to ending his nightmare decade as UK offic...
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Source: aljazeera.com
Title: no more charges for pentagon hacker
Link: https://www.aljazeera.com/news/2012/12/15/no-more-charges-for-pentagon-hackerSource snippet
Human Rights News15 Dec 2012 — A senior British prosecutor has said Gary McKinnon, a hacker wanted in the United States for breaking into...
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Source: committees.parliament.uk
Link: https://committees.parliament.uk/writtenevidence/54838/html/Source snippet
parliament.ukEXL0080 - Evidence on Extradition LawAstoundingly, more than a decade after the U.S [indictment]({{ 'indictment/' | relative_url }}); on the 14th December 2012 th...
Published: December 2012
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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/1304890Source snippet
That option was rejected.Read more...
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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.htmSource snippet
Britain's Home Secretary has blocked...
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