Security

A date has been set for the Britain's high court to consider whether self-confessed NASA hacker Gary McKinnon should be tried in the U.K.

Lord Justice Stanley Burnton and Justice Alan Wilkie will hear on July 14 the London resident's application for a judicial review, McKinnon's solicitor, Karen Todner, told ZDNet UK on Tuesday.

Gary McKinnon

(Credit: ZDNet UK)

McKinnon, accused by U.S. prosecutors of the "biggest military hack of all time" back in 2001, is pursuing a judicial review of a decision by the Crown Prosecution Service not to prosecute him in the U.K. Prosecution in the U.K. would enable McKinnon to avoid extradition to the U.S., where he runs the risk of a prison sentence of up to 60 years, according to his legal team.

If the judges grant McKinnon's application for the judicial review, then the review itself will be heard on the same day.

The high court judges are also in the process of reviewing the legality of former Home Secretary Jacqui Smith's denial of McKinnon's second appeal to the Home Office, despite knowing that he had been diagnosed with Asperger's syndrome.

If the judges find Smith was in error, the decision on McKinnon's extradition could be passed back to current Home Secretary Alan Johnson. However, if they rule that Smith was right, McKinnon will appeal to the House of Lords, Todner said. McKinnon's team will then take their case to the European Court of Human Rights if a House of Lords appeal fails, she added.

Tom Espiner of ZDNet UK reported from London.

Lawyers acting for Gary McKinnon say the self-confessed NASA hacker runs the risk of becoming psychotic and suicidal if his extradition to the U.S. goes ahead.

Edward Fitzgerald, QC, described the risk during a hearing on Tuesday at the Royal Courts of Justice in London. Judges Lord Justice Stanley Burton and Mr Justice Wilkie are reviewing a decision by former home secretary Jacqui Smith to allow extradition proceedings against McKinnon to go ahead, despite his being diagnosed with Asperger's Syndrome.

Gary McKinnon

(Credit: ZDNet UK)

"There is a risk of psychotic disruption, which may range on a path from anxiety through to psychosis," Fitzgerald told the court, as he presented arguments against the extradition. "There is a risk [McKinnon] may take his own life."

Fitzgerald said the home secretary reached a flawed decision in response to the medical evidence. "She underestimated and misrepresented the gravity of the situation."

Fitzgerald went on to point out that Smith had not asked the U.S. authorities to repatriate McKinnon should he be found guilty by a U.S. court.

McKinnon has been accused by U.S. prosecutors of hacking into U.S. military systems between February 2001 and March 2002, using his home computer in North London. They allege that McKinnon accessed 97 U.S. government computers, including U.S. Army, Navy and NASA computers responsible for national defense and security, and naval munitions supply.

Moreover, the U.S. authorities claim that McKinnon deleted critical operating-system files, leading to the shutdown of the entire U.S. Army network of over 2,000 computers in Washington, D.C. The deletion also took down a U.S. Naval Weapons Station computer system, causing $700,000 damage, prosecutors allege.

McKinnon has admitted deleting logs in an attempt to cover his movements, but has denied causing any damage. He claims to have been hunting for evidence of UFOs.

"The issue of damage has been overblown all along," said Fitzgerald. "[McKinnon] does not accept he deleted materials, aside from his own."

On Tuesday morning, the judges expressed their intention to reserve judgement, which means their decision might not be made public for up to two weeks.

McKinnon's solicitor, Karen Todner, told ZDNet UK that the court's decision could go a number of ways other than in favor of the extradition as it stands. For example, the judges may say they will not order the extradition until the home secretary has asked for, and received, formal assurances that McKinnon will serve any U.S. prison sentence in the U.K. Or the judges may decide against extradition, in which case McKinnon may still be prosecuted in the U.K.

If the extradition is given the go-ahead, then the defense will attempt to appeal to the House of Lords, Todner said. In addition, the defense will seek a judicial review of the decision by the Crown Prosecution Service not to prosecute McKinnon in the U.K.

McKinnon's mother, Janis Sharp, told ZDNet UK that McKinnon's health had suffered as a result of the stress of the trial.

"He's just had an operation on his eye, he had a lump removed and sent for biopsy," said Sharp. " There's a lump growing on his shoulder. It's the stress--he's stressed out of his mind."

Tom Espiner of ZDNet UK reported from London.

Gary McKinnon

(Credit: ZDNet UK)

The Pentagon should thank NASA hacker Gary McKinnon for "exposing the fragility" of U.S. military systems, according to Terry Waite.

Waite, who was held hostage in Lebanon for four years after being kidnapped in 1987, said that McKinnon's motives were "harmless," according to an article by Jack Doyle, a Press Association legal affairs correspondent.

"Gary is clearly a very clever chap," said Waite. "He has that unique ability to find his way through the Internet jungle and enter the inner recesses of the Pentagon. Full marks for his ingenuity. Was Gary a spy? Was he attempting to bring down the mighty military force of the USA? As far as I know, he was not. He was simply looking for little green men. Anyone who has the slightest acquaintance with that problem (Asperger's Syndrome) will know that while the sufferer can be, and indeed often is, brilliant in certain logical processes, they can become irrationally obsessive in other directions. The Pentagon ought to thank him for exposing the vulnerability of their systems. More importantly, the accused is suffering from Asperger's Syndrome, and no nation under the sun ought to convict an individual whose behavior is occasioned by illness."

The Daily Record is running the unchanged Press Association article here, while the BBC is running its version of the article, with the same quotes, paragraphs in a different order, plus some slightly different body text here.

Waite joins a growing number of celebrities, parliamentarians, and legal experts who have said that McKinnon should at least be tried in the U.K., if at all. A whole range of people now support McKinnon, from Sting on one side of the equation to Lord Carlile on the other.

McKinnon has Asperger's Syndrome, a condition on the autistic spectrum, and faces up to 70 years in jail if extradited to the U.S. and convicted under U.S. anti-terrorism laws.

Tom Espiner of ZDNet UK reported from London.

The Crown Prosecution Service has decided it will not prosecute self-confessed NASA hacker Gary McKinnon in the U.K., edging him closer to extradition to the U.S.

McKinnon's diagnosis with Asperger's Syndrome, a condition on the autistic spectrum, had not been taken into account in the decision, a Crown Prosecution Service (CPS) spokesperson told ZDNet UK on Thursday.

Gary McKinnon

(Credit: ZDNet UK)

U.S. authorities last year won the extradition of McKinnon to face charges of breaking into 97 military and NASA computers. In December, McKinnon's legal team sent a letter to the CPS in which he confessed to offenses under section 2 of the Computer Misuse Act, in an attempt to be prosecuted in the U.K. rather than the U.S.

McKinnon faces up to 70 years in a maximum security prison if convicted of hacking charges under U.S. law. In a statement regarding its decision, the CPS said the offenses McKinnon admitted to in his confession, including the unauthorized access to a computer system, are not as serious as the charges US prosecutors have leveled against him.

"We identified nine occasions where Mr. McKinnon has admitted to activity which would amount to an offence under Section 2 of the Computer Misuse Act (unauthorized access with intent)," Alison Saunders, the head of the CPS organized crime division, said. "Although there is sufficient evidence to prosecute Mr. McKinnon for these offences, the evidence we have does not come near to reflecting the criminality that is alleged by the American authorities."

Saunders made the decision on McKinnon in consultation with Keir Starmer, the director of public prosecutions, the CPS spokesperson said.

U.S. prosecutors allege that McKinnon was politically motivated in his hacking attack on U.S. Army, Navy, Air Force, and NASA systems in 2001. They also allege that he caused $700,000 worth of damage by deleting files, and that he disabled the function of a warship.

McKinnon has never denied accessing the systems, but he does deny causing any damage. He claims to have been searching for evidence of UFOs.

The CPS does not have access to the evidence held by U.S. authorities that could allow it to make more serious charges against McKinnon, his solicitor, Karen Todner, told ZDNet UK on Thursday.

"The reason the CPS doesn't have the evidence is that the U.S., under the extradition treaty, does not have to provide any evidence," Todner said. "The CPS could have asked to see the evidence, but it didn't do that."

The CPS spokesperson confirmed that the department had not asked to see any evidence. U.S. prosecutors are not required to show any prima facie evidence to secure the extradition of a U.K. citizen, under the terms of the US/UK Extradition Treaty of 2003.

"The harm occurred in the US, affecting infrastructure in the U.S., the witnesses are located in the U.S., the bulk of the evidence is in the U.S., and the task of gathering evidence from the U.S. is considerable," the service's spokesperson said. "U.S. prosecutors were able to frame charges reflecting the extent of Mr. McKinnon's criminality."

Todner said that the next step would be a High Court review of home secretary Jacqui Smith's decision to turn down McKinnon's appeal against extradition last year. A date has not yet been set for the review, as it hinged on the CPS decision. Todner expects it to be scheduled in April.

McKinnon was not available for comment at the time of writing. According to Todner, he was still hopeful that the High Court review might save him.

McKinnon's mother, Janis Sharp, criticized the U.K. prosecutors for not taking his health into account in its decision.

"I'm heartbroken at the lack of compassion shown towards my desperately vulnerable son," said Sharp. "Gary is a gentle man with Asperger's, not a dangerous terrorist. His obsessions led him to search U.S. computer systems. Wrong? Yes. But extraditing him to a high-security prison, knowing he won't survive--surely no-one can honestly believe that punishment fits the crime?"

Graham Cluley, senior technology consultant at security company Sophos, said that the U.K. IT community had shown sympathy for McKinnon's plight. "The real question is should we really be making such an example of a guy who was apparently just a UFO conspiracy theory nut?" Cluley said in a statement.

Tom Espiner of ZDNet UK reported from London.

Support is building in the British Parliament and from legal experts for self-confessed NASA hacker Gary McKinnon to be tried in the U.K.

Liberal Democrat peer Lord Carlile of Berriew, Queen's Counsel, the independent reviewer of Britain's antiterror laws, told CNET News sister site ZDNet UK on Wednesday that McKinnon's diagnosis with Asperger's Syndrome, a condition on the autistic spectrum, means he should be tried in Britain rather than in the U.S.

Gary McKinnon

(Credit: ZDNet UK)

McKinnon was diagnosed with Asperger's Syndrome last summer by Cambridge University autism expert Simon Baron-Cohen. Despite the diagnosis, the Home Office refused to halt McKinnon's extradition to the United States to face charges of hacking 97 U.S. military computers.

McKinnon, who is 43 years old, faces up to 70 years in a maximum security jail if tried and found guilty under U.S. antiterror laws. U.S. prosecutors claim McKinnon was politically motivated to access the U.S. Army, Navy, Air Force, and NASA systems. McKinnon claims he was searching for UFOs.

"In my opinion, Mr. McKinnon can be prosecuted in the U.K. since the acts of hacking occurred within our jurisdiction," Carlile told ZDNet UK. "I believe that Professor Simon Baron-Cohen's opinion that he is clearly placed within the category of autism spectrum disorder, with potential serious injury to his health were he to be transferred to the U.S. legal system, strongly reinforces the case for him to be tried in this jurisdiction."

In December, McKinnon signed a confession in an attempt to avoid extradition, admitting to offenses under section 2 of the U.K. Computer Misuse Act. McKinnon's legal team sent the confession to the director of public prosecutions, Keir Starmer, who is still in the process of making a decision as to whether to prosecute McKinnon in the United Kingdom. A U.K. prosecution would help McKinnon avoid extradition.

"We'd hope to make a decision soon," a Crown Prosecution Service spokesperson told ZDNet UK on Tuesday.

Lord Carlile told The Guardian on Monday that he had sent a letter to home secretary Jacqui Smith pressing for U.K. prosecution for McKinnon. Lord Carlile is one of a growing number of parliamentarians who are taking up McKinnon's cause. Eighty members of Parliament have now signed an early day motion urging the home secretary not to permit McKinnon's extradition.

Members of Parliament who have signed the motion include the Conservative shadow minister for justice, David Burrowes, Liberal Democrat shadow home secretary Chris Huhne, Liberal Democrat deputy leader Vince Cable and Independent Labour MP Clare Short.

Lord Carlile is also one of an increasing number of legal experts calling for U.K. prosecution for the self-confessed hacker. The all-party law-reform and human-rights organization Justice told ZDNet UK on Monday that the idea of McKinnon being tried under U.S. antiterror laws was problematic.

"The U.K. should seriously consider whether to prosecute here," said Justice director Roger Smith. "One of the problems of extradition is that people are tried by the standards of that country, but whatever he is, McKinnon is not a terrorist. He should not be dealt with as a terrorist. Lord Carlile in this case was speaking as a reviewer of terrorism."

Smith added that Justice thinks McKinnon should be charged and dealt with by U.K. authorities as a matter of policy, rather than human rights. "We think he should be tried here," he said. "He could be tried here or elsewhere, but our view is he should be tried here where [he has] strong connections."

Human rights organization Liberty, which has in the past provided legal representation for McKinnon, told ZDNet UK on Tuesday that the extradition agreement with the U.S. should be changed to allow for extradition to be halted on compassionate grounds.

"Any humane extradition scheme must allow for extradition to be refused on compelling compassionate grounds," said Liberty legal director James Welch. "If the Extradition Act can't accommodate this, then this is yet another way in which this unprincipled legislation is flawed."

Liberty has campaigned for the extradition agreement between the U.K. and the U.S. to be made reciprocal. Currently, U.S. prosecutors do not need to provide prima facie evidence of wrongdoing in a U.K. court to secure the extradition of a U.K. citizen to their country.

Tom Espiner of ZDNet UK reported from London.

Gary McKinnon, the man accused by U.S. prosecutors of "the biggest military hack of all time," has won the right to a judicial review of a Home Office decision to extradite him to the U.S.

Lord Justice Maurice Kay made the ruling at the High Court in London on Friday. The Home Office had refused to halt the extradition proceedings, despite McKinnon having been diagnosed with Asperger's Syndrome, a condition on the autistic spectrum.

McKinnon's solicitor Karen Todner told ZDNet UK on Friday that she was "very pleased" about the High Court decision.

"It's a step in the right direction," Todner said. "We've got permission for a judicial review, and that shows we have an arguable case."

McKinnon's legal team applied for the review on the grounds that McKinnon's medical condition had not been taken into account by the Home Office or any UK court in deciding his extradition. If convicted by the U.S., McKinnon faces a 70-year sentence in a maximum security prison, his barrister Edward Fitzgearld QC has argued.

Todner said the review was granted on the grounds that the extradition may breach Article 3 of the European Convention on Human Rights, which states that no one shall be subjected to "inhuman or degrading treatment or punishment."

Professor Simon Baron Cohen, the Cambridge University specialist in developmental psychopathology who initially diagnosed McKinnon, said on Tuesday that McKinnon suffered the risk of "psychiatric difficulties" including depression and anxiety should he be extradited and imprisoned.

Home secretary Jacqui Smith turned down McKinnon's second appeal against extradition in October 2008, after the diagnosis of Asperger's syndrome in summer 2008.

The judicial review will not take place until after the director of public prosecutions, Keir Starmer, has decided whether to charge McKinnon. McKinnon sent a signed confession to Starmer in December admitting offenses under Section 2 of the Computer Misuse Act, in the hope of being prosecuted under UK law.

Starmer is due to give his decision in just over two weeks. If he chooses to charge McKinnon, the judicial review will not take place, as extradition proceedings will cease. Otherwise, the judicial review will go ahead "towards the end of March," Todner told ZDNet UK.

Tom Espiner of ZDNet UK reported from London.

Gary McKinnon's potential extradition to the U.S. for hacking military systems is on hold for the next few weeks, McKinnon's lawyer has told ZDNet UK.

On Tuesday, McKinnon appeared at the High Court in London for an oral hearing about his extradition. McKinnon has always admitted hacking into the NASA and Pentagon systems--a crime for which he could face up to 70 years in prison if he were found guilty by a U.S. court--but denies causing damage to the extent claimed by the U.S.

Late last December, McKinnon sent a confession to Keir Starmer, the director of public prosecutions (DPP), in the hope he might be tried in the U.K. under the Computer Misuse Act, rather than in the U.S.

Before the hearing, McKinnon's solicitor, Karen Todner, told ZDNet UK that the home secretary's counsel had promised her the Home Office would stay the extradition until the DPP had issued his decision.

"The counsel for the home secretary has undertaken not to extradite Gary pending a decision from the DPP," Todner said. The DPP said a week ago he would make a decision within four weeks, so that decision is expected in mid-February.

McKinnon, speaking to ZDNet UK before the hearing, described himself as "nervous." He was, however, jubilant at the news of the delayed extradition.

"It's brilliant news--they're delaying the whole thing until we've got the DPP's decision," McKinnon said. "It's such a relief."

McKinnon added that he and his team would also apply for a judicial review of the home secretary's October rejection of his appeal against extradition. McKinnon's lawyers had argued that he should not be extradited on the grounds he suffers from Asperger's Syndrome, a condition on the autistic spectrum, but the Home Office rejected the appeal, claiming the diagnosis did not provide sufficient grounds for overturning the extradition order.

David Meyer co-wrote this article. Both of them report from London for ZDNet UK.

Self-confessed hacker Gary McKinnon has told U.K. prosecutors he will plead guilty to charges in the U.K., a move that could help him avoid extradition to the U.S.

McKinnon has been accused by U.S. prosecutors of "the biggest military hack of all time," after entering NASA and Pentagon systems. His solicitor, Karen Todner, sent a letter to Keir Starmer, the director of public prosecutions, to say McKinnon would plead guilty if tried in the U.K. under the Computer Misuse Act (CMA). The letter was sent on December 23, Todner told ZDNet UK on Monday.

Gary McKinnon

(Credit: ZDNet UK)

"Gary has committed offenses under the CMA, and has been diagnosed with Asperger's," said Todner. "I think it's time the DPP recognized that. Gary will plead guilty."

Todner said that under the CMA, McKinnon would receive a different sentence from the one he would receive if tried under U.S. law, as in the U.S. he would be prosecuted on charges of causing damage to military systems. She added that it is "generally accepted" McKinnon would receive a more lenient sentence in the U.K. The Londoner currently faces trial in the U.S., pending the outcome of an appeal to the High Court.

The Crown Prosecution Service (CPS) told ZDNet UK on Monday that it had received Todner's letter. "We can confirm we received the correspondence, and are considering that correspondence," said a CPS spokesperson, who added that no timescale could be given as to when Starmer would make a decision about the prosecution.

At the time of writing, 80 members of Parliament have given their support for an early day motion that the government request repatriation for McKinnon should he be tried and found guilty in the U.S. Prime Minister Gordon Brown in November spoke publically about McKinnon, boosting hopes he would serve any sentence in the U.K.

The self-confessed hacker, who was also known as "Solo," is accused by the U.S. government of hacking 97 U.S. military computers and causing over $700,000 of damage by deleting files. McKinnon has never denied accessing the U.S. Army, Navy, Air Force, and NASA computers, but denies causing extensive damage. He claims he was initially searching for evidence of extra-terrestrial life, and later found evidence of antigravity projects. McKinnon faces up to 70 years in prison if found guilty by a U.S. court and, as it stands, would serve his sentence in the U.S.

Tom Espiner of ZDNet UK reported from London.

British prime minister Gordon Brown spoke on Thursday (at least indirectly) about the future of Gary McKinnon, a 42-year-old UFO enthusiast accused of hacking into several U.S. military sites. It was the prime minister's first public comments on the case which, after six years, took a twist over the summer.

McKinnon lost his last fight against extradition in July but has yet to arrive in the United States to stand trial. His lawyers are continuing to appeal within the E.U. courts. McKinnon, who has been diagnosed with Asperger's syndrome, has said he would prefer to stand trial within the U.K., or at the very least serve his sentence in the UK.

Brown spoke while taking questions at the House of Commons. While he did not address McKinnon's case directly, he did say the "U.K. and the U.S. are signatories to the Council of Europe convention on the transfer of sentenced persons, which enables a person found guilty in the United States of America to serve their sentence in the U.K."

Colin Barker of ZDNet.co.uk has more details.