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Gary McKinnon: "Without people power, there's no way that Gary would have stayed here. The little person won."
“Gary McKinnon does not go abroad, ‘would rather be dead’, and does not go outside North London.” With these words, Janis Sharp explained the toll that this protracted decision had taken on Gary McKinnon.
Janis Sharp, Gary McKinnon’s mum, further thanked Theresa May in standing up against ‘a different nation’, ‘in having the strength’. Janis Sharp gave special tributes to Paul Dacre at the Daily Mail, and Michael Seamark and James Slack. ‘Without people power, there’s no way that Gary would have stayed here. The little person won.’ She described that ‘he had lost ten years of his youth, and ten years of his life.’ She suggested that individuals with Asperger’s syndrome tend to be very hard-working, and their talents should be nurtured and channeled.
Shami Chakrabarti, Director of Liberty (“The National Council for Civil Liberties”), said it was a great day for ‘compassion and common sense’. She looked forward to the day when the basic case could be demonstrated in a local court. She has praised Janis Sharp for uniting lawyers, media people, and politicians in her campaign, and emphasised the urgent importance of the Human Rights Act.
People with autism have particular vulnerability in the criminal justice system, according to Mark Lever. Expert opinion is sought to understand the basic processes, and Mark Lever, Chief Executive of the National Autistic Society, wished Gary McKinnon ‘good luck’ in the next chapter in his life. Lever explained that expert evidence, treatment and testimony were needed to ‘make sure people with Asperger’s syndrome were best supported.’
David Burrowes, his MP and who has been fighting an extensive prolonged campaign on Gary’s part, described it as an occasion when ‘compassion and doing the right thing’ prevailed, and urged that this should not happen again. The solicitor, Karen Todner, MD of Kaim Todner’s Solicitors, who has represented Gary for ten years called it a ‘rollercoaster’, with support from many, including the general public, medical and legal professions, MPs from all parties, and Daily Mail. She emphasised that Gary had a clinical diagnosis of clinical depression, and therefore this might be a factor which Keir Starmer might like to consider in pursuing a CPS prosecution in considering Gary’s “fitness to plead”.
Edward Fitzgerald QC has thanked the Secretary for State for a ‘brave’ decision, applying the test under article 3. Extradition must be refused if there is convincing and independent evidence of a high risk of suicide. Five neuropsychiatric experts had given such a judgment, and so she was ‘entitled and obliged’ to make this decision. Without the Human Rights Act, it would not have been possible to block the extradition.
Ben Cooper from Doughty Street Chambers described that he had made full admissions in 2002, and had the CPS had charged him this protracted case could have been avoided. Cooper felt that this showed an inconsistency in charging decisions made by the CPS, making reliance on articles 3 and 8.
Extradition – testing the value of human rights
The Conservatives don’t like the Human Rights Act; the Liberal Democrats like it. Now they are in coalition, and have somehow formulated a position on control orders. Extradition is much more difficult, from the point of view of the legislature. The law of extradition from England and Wales was made less complex by the Extradition Act [2003] which was a response to the raised terrorist threat in Europe. Extradition was made much easier.
The judiciary provides relative certainty in this world of uncertainty. The decision by the European Court of Human Rights to block the extradition of Abu Hamza, the radical Muslim cleric, to America to stand trial on alleged terrorist offences poses a challenge to the Coalition government. The Conservatives promised to repeal the Human Rights Act – but that would make no difference because the European Convention on Human Rights would still apply to British law and it is on this that the Strasbourg court relies for its judgments.
It is an absolute prohibition for a signatory to the ECHR to remove anyone to a place where they would be subject to inhumane or degrading treatment. Article 3 of the European Convention on Human Rights prohibits “inhuman or degrading punishment”. The article has a long history, expressly evoking the 1688 Bill of Rights, which prohibits “cruell and unusuall punishments”. Unlike other rights, Article 3 is unqualified, which means that a State is not permitted to justify a breach on any grounds. It is now uncontroversial (in the courts, at least) that to return a person to a country where there is a real risk that they will be in danger or torture, loss of life or inhuman or degrading treatment would breach Article 3. Therefore, the courts have no choice but to prevent any extradition or deportation which would put a person at serious risk.
Gary McKinnon has been accused of hacking to various U.S. computers. Gary McKinnon’s legal battle has included a number of appeals to the Administrative Division of the High Court. In July 2009, Lord Justice Burnton rejected his claim that, due to his mental condition, his detention would involve inhuman or degrading treatment or punishment which would, if committed in this country, infringe Article 3. The judge held that the bar for inhuman and degrading treatment had been set high in previous cases, and stated that McKinnon also claimed under Article 8, the right to private and family life, but this was also rejected, as his extradition was found to be a lawful and proportionate response to his alleged offending. Unlike Article 3, Article 8 is a qualified right, which means that it can be overrided if there is a strong public interest in doing so.
The case has now been adjourned by the Home Secretary so she can consider the medical evidence afresh. Geoffrey Robertson QC calls this a test case for principles and suggests that the Home Secretary’s “main difficulty will be to override her Home Office advisers who have for years fought an unremitting, expensive and merciless battle against this poor man and his indomitable mother” However, the legislature – or rather an important part of it – has meant this story has taken, for the time-being, a turn for the worse. Nick Clegg, last week, said it would be ‘better all round’ for the two not to discuss the details of the case, which has now been grinding on for seven years. The Americans are demanding the extradition of Gary, 45, despite medical experts warning he will kill himself if sent to the U.S. for trial. Mr Clegg had been implacable in his support for Gary in opposition. He stood by Mrs Sharp’s side at a demonstration outside the Home Office in December 2009.
What we do not have is clarity on the future of the Human Rights Act. Mr Ken Clarke, the Justice Secretary, said Britain would seek to kick-start reform of the European Convention on Human Rights (ECHR) and the European Court on Human Rights when it takes up a key role in Europe later this year. However, Lord Justice Woolf has signalled there is very little chance of anything changing because it would mean persuading 47 countries who are all signed up to the Convention. The Prime Minister has announced a commission to examine the creation of a British Bill of Rights and the country’s relationship with the European court. Lord Woolf, who was the country’s most senior judge between 2000 and 2005, said a Bill of Rights would also cause conflict between the two.
The upshot for David Cameron and Nick Clegg – talk is cheap, when the future of human rights in individual people are at stake.
