England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		03/04/2007

Lord Justice Maurice Kay :

This is the judgment of the Court.

1. On 10 May 2006 in Bow Street Magistrates' Court, District Judge Nicholas Evans acceded to an application made on behalf of the Government of the United States of America and sent the case of Gary McKinnon to the Secretary of State for his decision as to whether or not Mr McKinnon should be extradited to the USA. On 4 July 2006, the Secretary of State decided that Mr McKinnon should be so extradited. Mr McKinnon now appeals against those decisions. The USA has been designated a category 2 territory pursuant to section 69 of the Extradition Act 2003. The case therefore falls to be considered under Part 2 of the 2003 Act. The appeal against the decision of the District Judge is brought under section 103. The appeal against the decision of the Secretary of State is brought under section 108.

The allegations

2. Mr McKinnon is British and lives in London. Between February 2001 and March 2002 he gained unauthorised access to 97 computers belonging to and used by the US Government. He was acting from his own computer in London. Through the internet, he identified US Government network computers with an open Microsoft Windows connection. From those computers, he extracted the identities of certain administrative accounts and associated passwords. Having gained access to those administrative accounts, he installed unauthorised remote access and administrative software called "remotely anywhere" that enabled him to access and alter data upon the American computers at any time and without detection by virtue of the programme masquerading as a Windows operating system.
3. Once "remotely anywhere" was installed, Mr McKinnon proceeded to install his "suite of hacking tools" – software that he used to facilitate further compromises to the computers which also facilitated the concealment of his activities. Using this software, he was able to scan over 73,000 US Government computers for other computers and networks susceptible to compromise in a similar fashion. He was thus able to lever himself from network to network and into a number of significant Government computers in different parts of the USA. The relevant ones were:

1. 53 Army computers, including computers based in Virginia and Washington that controlled the Army's Military District of Washington network and are used in furtherance of national defence and security [charges 1 to 2]

2. 26 Navy computers, including US Naval Weapons Station Earle, New Jersey. This was responsible for replenishing munitions and supplies for the deployed Atlantic Fleet [charges 6 to 8]

3. 16 NASA computers [charges 12 to 15]

4. 1 Department of Defense computer [charges 17 to 18].

4. Once the computers were accessible by Mr McKinnon, he deleted data including:

(1) Critical operating system files from nine computers, the deletion of which shut down the entire US Army's Military District of Washington network of over 2000 computers for 24 hours, significantly disrupting Governmental functions [charges 1 to 3]

(2) 2,455 user accounts on a US Army computer that controlled access to an Army computer network, causing those computers to reboot and become inoperable [charges 1 to 3]

(3) Critical Operating system files and logs from computers at US Naval Weapons Station Earle, one of which was used for monitoring the identity, location, physical condition, staffing and battle readiness of Navy ships. Deletion of these files rendered the Base's entire network of over 300 computers inoperable at a critical time immediately following 11 September 2001 and thereafter left the network vulnerable to other intruders [charges 8 to 10 and 11].

5. He also copied data and files onto his own computers, including operating system files containing account names and encrypted passwords from 22 computers. These comprised:

(1) 189 files from US Army computers [charges 4 and 5]

(2) 35 files from US Navy computers, including approximately 950 passwords from server computers at Naval Weapons Station Earle [charges 9 to 10]

(3) 6 files from NASA computers [charges 15 to 16].

6. Mr McKinnon's conduct was intentional and calculated to influence and affect the US Government by intimidation and coercion. As a result of his conduct, damage was caused to computers by impairing their integrity, availability and operation of programmes, systems, information and data on the computers, rendering them unreliable. The cost of repair totalled over $700,000.
7. In 2002 the compromises installed in three NASA computers were traced to Mr McKinnon's home computer in London. On 19 March 2002, pursuant to a request for mutual legal assistance, his computers were seized. Forensic analysis of them confirmed the above allegations. It provided evidence that:

(1) Mr McKinnon's computers contained administrative account names and passwords for 39 of the 97 compromised computers

(2) Of the 44 or so versions of "remotely anywhere" available on the internet, one of the many versions found on his computer was found on 71 of the 97 compromised computers

(3) 72 of the computers had "remotely anywhere" installed in a directory location selected uniquely by him

(4) A document found on his computer recommended the renaming of the "remotely anywhere" software to "ra.exe" and the "remotely anywhere" files found on 19 Army computers had been so renamed

(5) A further document found on his computer entitled "themethod.wri" contained detailed instructions as to how to undertake the above conduct

(6) His computer was not the subject of remote access from any other computers.

8. Pursuant to the request for mutual legal assistance, Mr McKinnon was interviewed under caution in London on 19 March 2002 and again on 8 August 2002. During those interviews he admitted responsibility for the intrusion into US Government computers and networks and the installation of "remotely anywhere" on them. This included the Army's Military District of Washington network and the Naval Weapons Station Earle network. He stated that he had copied files from the American computers onto his home computers and had deleted log files on the American computers so as to conceal his activities. He stated that his targets were high level US Army, Navy and Airforce computers and that his ultimate goal was to gain access to the US military classified information network. He admitted leaving a note on one Army computer that read:

"US foreign policy is akin to Government-sponsored terrorism these days … It was not a mistake that there was a huge security stand down on September 11 last year … I am SOLO. I will continue to disrupt at the highest levels … "

9. Like the District Judge, we have based that summary of the allegations on the written summary prepared by Mr Summers who appears on behalf of the United States Government. We emphasise at this stage that they are allegations, no more and no less.

The decision of the District Judge

10. On behalf of Mr McKinnon, a number of points were raised at the hearing before the District Judge. First, it was submitted that the designation of the USA as a category of state not required to establish a prima facie case in extradition proceedings was unlawful and ultra vires. The District Judge rejected this submission by reference to R (Norris) v SSHD [2006] EWHC 280 (Admin). Secondly, it was submitted that to qualify as an extradition offence under section 137(2) of the 2003 Act, the conduct complained of must have occurred exclusively in the requesting state and that, as Mr McKinnon had been in London at all material times, it could not be shown that his conduct amounted to an extradition offence. The District Judge rejected this submission by reference to Cando Armas [2006] 2AC 1, [2005] UKHL 67; Bermingham v Director of the SFO [2006] EWHC 200 (Admin); and R v Governor of Brixton Prison, ex parte Levin [1997] AC 741; [1997] 1 Crim App R 335. Thirdly, it was submitted that the extradition was barred by reason of extraneous considerations in that the request was made for the purpose of prosecuting him on account of his political opinions (section 81) or by reason of the passage of time (section 82). These submissions were rejected upon an assessment of the evidence. Fourthly, it was submitted that the extradition would be incompatible with Mr McKinnon's human rights within the meaning of the Human Rights Act 1998 (section 87 of the 2003 Act). Reliance was sought to be placed on Articles 3, 5, 6 and 8. This submission raised issues which centred upon whether Mr McKinnon was exposed to the risk of an unfair trial or detention by reason of liability to prosecution before a Special Military Tribunal or Military Commission under Military Order No 1. It also required consideration of Special Administrative Measures or SAMs. The District Judge rejected these submissions upon an evaluation of the evidence and by reference to recent authority, including Bermingham (above). He accepted that Article 8 was engaged but concluded that extradition would be proportionate. Fifthly, it was submitted that extradition ought to be refused on the basis of an abuse of process. The District Judge accepted that there is now an abuse of process jurisdiction in extradition but held that such an abuse was not established in the present case. Sixthly, it was submitted that the USA has a flagrant disregard for specialty arrangements. The District Judge rejected this submission by reference to Welsh and Thrasher v Government of the United States of America [2006] EWHC 156 (Admin). Having rejected all these submissions made on behalf of Mr McKinnon, the District Judge sent the case to the Secretary of State.

The decision of the Secretary of State

11. The decision of the Secretary of State was communicated in a letter dated 4 July 2006. Under the 2003 Act the grounds upon which the Secretary of State may refuse to order extradition are more limited than those upon which a District Judge may refuse to send the matter to the Secretary of State. Section 93(2) and sections 94 – 96 confine the grounds to cases where the subject of the request could be, will be or has been sentenced to death for the extradition offence (section 94), where there are no specialty arrangements with the requesting state (section 95) and where the subject has been extradited to the United Kingdom from another territory, that territory's consent is required to the person's extradition from the United Kingdom to the category 2 territory and that consent has not been forthcoming (section 96). In the decision letter the Secretary of State acted upon "categorical assurances" and a Diplomatic Note to the effect that Mr McKinnon would be prosecuted in a Federal court and would not be eligible for the death penalty. He explained that he was satisfied that there are adequate arrangements in place to safeguard Mr McKinnon's rights in respect of specialty. In both cases he made clear that he had considered the judgment of the District Judge but had nevertheless looked at the submissions afresh and with reference to the submitted documents. No issue arose under section 96.

The grounds of appeal

12. Numerous grounds of appeal have been formulated on behalf of Mr McKinnon. However, Mr Lawson QC submits that some of the grounds have become unarguable in this court because of recent authority. He invites us to dismiss them without argument, thereby preserving his position if the House of Lords should come to take different views from those recently expressed in the Divisional Court. As we understand it, some of the recent decisions of the Divisional Court are the subject of as yet unresolved petitions for leave to appeal to the House of Lords. On this basis, we have heard no submissions relating to vulnerability to being dealt with under Military Order No 1 and/or under Special Administrative Measures. The points which Mr Lawson had been going to take have been put beyond his reach at this level by Babar Ahmad v Government of the United States [2006] EWHC 2927 (Admin). We consider the approach suggested by Mr Lawson to be sensible. No submission to the contrary was made by Mr Summers or by Mr Perry QC. Accordingly, we reject those grounds of appeal.
13. The grounds of appeal which remain live in this court raise the following issues. First, is the extradition of Mr McKinnon barred by reason of "extraneous considerations" pursuant to section 79(1)(b) and section 81(a)(b)? The question is whether the extradition is sought "for the purpose of prosecuting him on account of his … nationality … or political opinions"; or whether, if extradited, he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his nationality or political opinions. Secondly, the question is raised whether the extradition is barred by reason of the passage of time pursuant to section 79(1)(c) and section 82. Thirdly, it is suggested that the extradition would not be compatible with Mr McKinnon's human rights which are protected under section 87 which in turn cross refers to the Human Rights Act 1998. The case is put substantially by reference to Article 8. Fourthly, would the extradition result from an abuse of process? It is suggested that the US Government has abused the extradition process (1) by engaging in deliberate delay thereby enabling it to obtain the advantage of the provisions of the 2003 Act and category 2 status, and (2) by being motivated by a desire to expose Mr McKinnon to a very substantial period of imprisonment, way beyond any sentence which would be likely to be imposed upon him following conviction in this country for like offences. At the hearing, Mr Lawson sought and was permitted to argue abuse of process by reference to circumstances in which Mr McKinnon has declined a plea bargain and, as a result, has lost benefits which would have flowed from it, including support for repatriation so as to enable him to serve a sentence or part of a sentence in the United Kingdom. We allowed this submission to be advanced, notwithstanding its absence from the original grounds of appeal, but with the assurance to Mr Summers and Mr Perry that, if the interests of their clients were shown to be prejudiced by this late addition, we would ensure that those interests were protected. It will become apparent that, as in many similar cases, there is something of an overlap between the various grounds of appeal.

The role of this Court

14. The appeal against the decision of the District Judge arises under section 103. By section 103(4) such an appeal may be on a question of law or fact. By section 104 we may (a) allow the appeal, (b) direct the judge to decide again a question which he decided at the extradition hearing or (c) dismiss the appeal. We may only allow the appeal if the conditions set out in section 104(3) or (4) are satisfied. They read as follows:

"(3) The conditions are that –

(a) the judge ought to have decided a question before him at the extradition hearing differently;

(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.

(4) The conditions are that –

(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;

(b) the issue or evidence would have resulted in the judge deciding a question before him at the extradition hearing differently;

(c) if he had decided the question in that way, he would have been required to order the person's discharge."

15. The appeal against the order of the Secretary of State lies under section 108 and may be brought on a question of law or fact (section 108(3)). By section 109 we may allow the appeal only if the conditions set out in section 109(3) or (4) are satisfied. Those sets of conditions effectively mirror those set out in section 104(3) and (4), transposing them to the context of the decision of the Secretary of State.

Ground 1: "Extraneous circumstances": "Political Opinions"

16. Section 79 required the District Judge to decide whether extradition is barred by "extraneous considerations". By section 81, a person's extradition to a category 2 territory is barred by reason of extraneous considerations if (and only if) it appears that

"(a) the request for his extradition (though purporting to be made on account of the extradition offence) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinions, or

(b) if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions."

17. The point sought to be made by Mr Lawson is that the US Government is relying upon evidence of Mr McKinnon's admissions to being the author of the words "US foreign policy is akin to government-sponsored terrorism these days", "It was not a mistake that there was a huge security stand-down on September 11^th last year" and "I am SOLO. I will continue to disrupt at the highest levels". Mr Lawson further suggests that the US Government has been embarrassed at the ease with which Mr McKinnon obtained access to supposedly secure computers. Upon this basis, he suggests that, at the very least, Mr McKinnon might be prejudiced at his trial or punished by reason of his political opinions. He points out that the language of section 81(b) is that of "might be prejudiced … or punished …", suggesting that this is a relatively low test. Notwithstanding that the threshold is relatively low, this ground of appeal is totally lacking in merit. The relevant question under section 81(b) is not whether Mr McKinnon did what he is alleged to have done by reason of his political opinions. It is whether his political opinions (whatever they may be) are such that he would suffer prejudice at the hands of an American judge and jury. There is no evidence and absolutely no reason to suppose that Mr McKinnon might suffer prejudice of this sort.

Ground 2: The passage of time

18. Section 79(1)(c) required the District Judge to decide whether the extradition to the USA is barred by "the passage of time". Section 82 then provides:

"A person's extradition to a category 2 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence … "

19. The concepts of injustice and oppression are hallowed by long usage in extradition law. The words of Lord Diplock in Kakis v The Government of the Republic of Cyprus (1978) 1 WLR 779 HL remain authoritative (at page 782):

" 'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to hardship to the accused resulting in changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair."

20. In the present case, "the period to be taken into consideration" was from the earliest alleged offence to the hearing before the District Judge, February 2001 to May 2006, that is 5 years and 3 months. No part of the delay was attributable to culpable conduct of Mr McKinnon.
21. Mr Summers proffers the following explanation of the passage of time during that period. The alleged offences were being committed between February 2001 and March 2002. It was not until March 2002 that the US authorities traced matters to Mr McKinnon's computer. Between March and November 2002 the investigation was active. Indeed this included the period of the international mutual legal assistance involving the interviews under caution in London in March and August 2002. Between October 2002 and April 2003 there is evidence of intensive and complex enquiries, including analysis of data in the accessed computers and Mr McKinnon's computer. There were also legal developments including a reduction in the number of allegations so as to exclude ones which related to the hacking of networks operated by corporate and private interests. Between April 2003 and June 2003 there were active negotiations between the American authorities, Mr McKinnon and his legal advisers involving the possibility of voluntary travel to the United States by Mr McKinnon and a proposed plea bargain. However, the negotiations did not bear fruit. In June 2003 the US Government began the process of collating evidence to meet the requirements of a request for extradition pursuant to Schedule 1 to the Extradition Act 1989. In May 2004, the US prosecutors were advised as to the existence and implications of the Extradition Act 2003. They then began to prepare the application under the new Act. The documentation was submitted to the US Department of Justice on 8 September 2004. On 7 October 2004 the US Government submitted an extradition request to the Secretary of State. Between October 2004 and June 2005 the matter was in the hands of the authorities in this country, in respect of whom no allegation of culpable delay is advanced. Between June 2005 and May 2006 there were a number of adjournments of the extradition hearing, most of which were upon the application of Mr McKinnon and concerned the preparation of his case. One adjournment was caused by the unavailability of a District Judge.
22. Having analysed this history, the District Judge said:

"… it is easy to see that events could and probably should have moved at a faster pace, but in the scheme of things this delay is fairly modest."

23. Having regard to the complexity of the case and the issues raised by it, we agree with that assessment.
24. In dealing with the passage of time, the District Judge gave separate consideration to the concepts of injustice and oppression. On injustice he said:

"It was open to the defence in these proceedings to explain how it might be unjust for the defendant to face trial after the delay. Although under no obligation, he could have outlined in general terms what his defence was and explained how it might be prejudiced in its advancement at trial by reason of the passage of time. He has chosen not to do so. In the light of his admissions it is difficult to anticipate any defence he might wish to put forward or how it might be prejudiced by the delay. Typically what one is looking for is some essential defence witness who is no longer available to be called or something similar. No potential witness was identified to me who might be unable to attend by reason of the passage of time. What is said is that the defendant 'will be required to deal with material which is several years old'. 'Obvious difficulties arise from the fact that an accurate recollection as to dates is now extremely difficult if not impossible – but would have been considerably easier closer to the time …' I regard this submission as particularly feeble. As I understand it, the computer analysis provides not only the date but also the exact time for each intrusion. The defendant has already provided a full account of his conduct in interview. The delay has not resulted in any identifiable risk of prejudice to the defendant in the conduct of the trial itself."

25. Turning to oppression, the District Judge said:

"… the defendant is a 40 year-old, unemployed computer system administrator, living in London. The understandable stress and anxiety this case has caused him is, he believes, the underlying cause of the break-up of a long-term relationship. Happily he has recently formed a new relationship. It is submitted that the delay has given rise 'to a legitimate expectation that the defendant would not be prosecuted'. That submission does not bear close scrutiny. Overtures were made to the defendant to see if he would go to the USA on a voluntary basis and submit himself to the jurisdiction of the court there. He declined the offer and knew perfectly well what consequence would follow. No other factors have been brought to my attention which might be relevant to a determination of whether it would be oppressive, by reason of the passage of time, to extradite him. I conclude that there is no bar to his extradition by reason of the passage of time."

26. In our judgment, these were not just permissible findings: they were inevitable findings on the material before the District Judge. In the light of Mr Lawson's submissions, there are two matters which call for a response. The first is that in the passages we have just set out the District Judge made no reference to an eight-page letter from Mr McKinnon's mother. Whilst he did not deal with it at that point he did deal with it some pages later in the context of Article 8. In so doing he said that he suspected that much of the letter had been drafted by a lawyer. Mr Lawson, on instructions, submits that that was not so. We do not consider that anything turns on the suspicion expressed by the District Judge. For our part, we are content to accept that the first two and the final two pages of the letter were expressed in the mother's own words. The four-page section in the middle seems to us to have been compiled by someone with a detailed knowledge of recent events in the United States and elsewhere. We do not consider that that part was composed by Mr McKinnon's mother. Indeed, immediately after that section of the letter there is a heading "My letter continued", making clear that the central section was obtained from another source or sources. In our view, this analysis of the letter reflects the conclusion of the District Judge that "much of" it was drafted by a lawyer.
27. The second point made by Mr Lawson is in the form of reliance on the decision of this court (Hallett LJ and Jack J) in Kociukow v District Court of Bialystok [2006] EWHC 56 (Admin). This case was decided shortly before the extradition hearing before the District Judge in the present case and was considered by him in his judgment. In Kociukow a European arrest warrant relating to offences of robbery in August 1999 was issued in July 2005. In his judgment, Jack J (with whom Hallett LJ agreed) said (at paragraph 11):

"[Counsel] who was instructed on behalf of the respondent … had no instructions as to why the warrant had not been issued until last year. The explanation may be simple. It may be that it is alleged that after he had committed the offences the appellant fled from Poland and that enquiries had not been able to locate him until last year. Equally it is possible that no attempt was made to trace him. We do not know. In this situation it cannot be for the appellant to show that there are no good reasons for the delay. It is his case that his leaving Poland was unconnected with the offences. In the absence of any explanation from the extraditing authority he is entitled to assert that there is a prima facie case calling for an answer, which is unanswered. I am therefore satisfied that it would be unjust to extradite the appellant by reason of the passage of time since he is alleged to have committed the offences."

28. Like the District Judge, we see obvious differences between that case and the present one. The case for Mr Kociukow was that he had left Poland six years earlier, knowing nothing of the robbery or the victim. He had no recollection of what he was doing on the date of the robbery. In the intervening period he had settled lawfully in this country. There was no explanation forthcoming from the Polish authorities as to why it had taken six years to begin to seek extradition. In our judgment Kociukow does not assist Mr McKinnon. The delay has been explained by the American authorities and the explanation is substantially justified. Moreover the intended trial in the present case would be of a totally different kind from the one which Mr Kociukow would have had to face. Here, much of the factual evidence and its link to Mr McKinnon is beyond dispute and has been electronically preserved. There is nothing in the present case which would be productive of injustice at trial comparable with the difficulties which would have arisen in Kociukow.
29. For all these reasons we are satisfied that the passage of time does not constitute a bar to extradition in the present case. In the course of his submissions, Mr Lawson also sought to place reliance on what he described as "deliberate delay" by which the US Government sought to enable the extradition request to be dealt with under the 2003 Act rather than its predecessor. It seems to us that this aspect of Mr Lawson's submissions is better considered in the context of abuse of process.

Human Rights

30. By section 87 of the 2003 Act, the District Judge had to decide whether extradition would be compatible with Mr McKinnon's Convention Rights within the meaning of the Human Rights Act 1998. Article 8 of the ECHR provides a qualified right to respect for private and family life. Article 8.2 provides:

"There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety … for the prevention of disorder or crime … "

31. It is common ground that Article 8 is engaged because, if extradited, Mr McKinnon would have his private and family life in this country disrupted and, if convicted and sentenced in the USA, the period of disruption could be long, although there is an issue as to just how long. The question that arises is whether the inevitable interference with Mr McKinnon's private and family life would be proportionate to the legitimate aim of the proposed extradition. In Launder v United Kingdom (1997) 25 EHRR CD 67 the Strasbourg Commission said (at paragraph 3):

"It is only in exceptional circumstances that the extradition of a person to face trial on charges of serious offences committed in the requesting state would be held to be an unjustified or disproportionate interference with the right to respect for family life."

32. In Bermingham Laws LJ said at paragraph 128:

"I consider … that the approach of the … Commission in Launder, requiring exceptional circumstances to demonstrate a want of proportionality in an extradition upon charges of serious offences committed in the requesting state, is fully applicable notwithstanding the fact that some acts going to constitute the fraud took place in the sending state, the United Kingdom."

Mr Lawson accepts that he needs to establish "exceptional circumstances".

33. Three aspects of the case call for consideration in this regard. The first requires investigation of Mr McKinnon's family and private life. For the reasons to which we referred when considering oppression in the context of the passage of time, there is nothing exceptional about the personal, domestic and family circumstances of Mr McKinnon. The second point, which arises from submissions made by Mr Lawson, relates to the duration of any sentence imposed by the American courts and the conditions in which Mr McKinnon would be detained. We shall have to return to the question of the duration of any sentence when considering abuse of process. At this point we simply observe that, if convicted, Mr McKinnon would be facing sentence for very serious offences and the fact that any sentence would be longer than an English court might impose for similar offences does not by itself avail Mr McKinnon. The District Judge said:

"It must be obvious to any defendant that if you choose to commit a crime in a foreign country you run the risk of being prosecuted in that country. If convicted you will be punished in accordance with the sentencing regime as would apply to any other national of that country, and if the level of punishment in that country is higher, than in comparable circumstances it would be in the UK, so be it."

34. That puts the matter rather starkly but, in our view, not inaccurately. We accept that there may be circumstances in which the likely sentence for the extradition offence in the requesting state would be so long that it would amount to an unjustified interference with the person's human rights. However, we do not accept that the present case is such a case. We shall set out our findings about the likely length of sentence when considering abuse of process. For present purposes, we derive assistance from the recent decision of the Supreme Court of Canada in Ferras v United States of America [2006] 2 SCR 77. There, McLachlin CJ referred to the principle that Canadians "must generally accept the laws and procedures of the countries they visit" and also to "comity, reciprocity and respect for differences among states" (paragraph 86). As in our jurisdiction, the Canadian courts require exceptional circumstances if a bar to extradition is to be established on this basis. They use the test of whether the potential sentences in a requesting state would "shock the conscience" of Canadians. We find that a useful yardstick in the present context. We do not consider that it has been achieved in this case. In our view Mr Lawson has tended to understate the gravity of the offences which Mr McKinnon is alleged to have committed. At the same time he has tended to overlook the fact that, if prosecuted and convicted, the equivalent domestic offences include the offence under section 12 of the Aviation and Maritime Security Act 1990 for which the maximum sentence is life imprisonment.
35. In addition to making submissions about the likely length of any sentence in the United States, Mr Lawson also submits that the conditions of detention both before trial and after sentence raise human rights issues. He draws our attention to material provided by Amnesty and from American case law regarding the use of stun guns and the like against detainees in American prisons. We are wholly unimpressed by these submissions. On analysis, the evidence is of the use of such devices in the face of prison disturbances and the like. There is no evidence of institutionalised or random use against prisoners in federal prisons. We find nothing in all this to assist Mr McKinnon's case.
36. The third point raised by Mr Lawson is to the effect that it would be disproportionate to remove Mr McKinnon to face trial in the US when he could be tried for equivalent offences in this country and, if convicted, could be sentenced in a way which would not amount to such an interference with his Article 8 rights. Of this point the District Judge said:

"The CPS did consider whether to launch a prosecution in the UK and for good reason decided against it. The defendant intentionally targeted computers in the US; his actions resulted in criminal damage being suffered there, as well as causing very considerable disruption to the workings of those computers resulting in interference and disruption to military activities in the US. It is not my task to determine which state has the better right to prosecute, but for what it is worth my view is, unquestionably, if the defendant is to face prosecution, it should be in the US."

37. We agree with that analysis. Submissions similar to those advanced by Mr Lawson were advanced on behalf of the appellant in Bermingham. There, neither the fact that the appellants were United Kingdom nationals nor anything else about their circumstances brought them within the scope of exceptionality. We agree with Mr Summers that, if anything, the US links in the present case are stronger than they were in Bermingham and the UK links are weaker. We add as a footnote that the Extradition Act 2003 has been amended by the Police and Justice Act 2006, Schedule 13. It contains a new section 83A dealing with "Forum" as a bar to extradition to a category 2 territory. However, that section has not yet been brought into effect.

Abuse of process

38. The matters with which we shall deal under this heading were also relied upon by Mr Lawson in support of the earlier grounds that we have considered. We have not ignored them in those contexts, but it seems to us that they are best considered under the heading of Abuse of Process. We shall consider them under two sub-headings.

(1) Deliberate delay

39. Mr Lawson submits that the US Government engaged in deliberate delay in order to obtain the advantage of the new extradition arrangements applicable to category 2 territories under the 2003 Act and that this amounted to an abuse of process. Whatever may have been the historical position, we accept that a District Judge conducting an extradition hearing under the 2003 Act has jurisdiction to hold that the requesting state is abusing the process of the court. The history was analysed and the principle demonstrated by Laws LJ in Bermingham, paragraphs 91 to 97. However, we do not consider that deliberate, abusive delay is made out in the present case. Indeed, we do not accept that the delay was deliberate at all. We have described how at first the US authorities were formulating an application under the 1989 Act until the new procedures were drawn to their attention. When pressed about the alleged advantage sought to be gained by the US authorities, Mr Lawson suggested that they had been waiting for a procedure in which it was no longer necessary to establish a prima facie case where the requesting state has the appropriate designation. This suggestion does not bear examination. On any basis, there is a prima facie case against Mr McKinnon and no one could sensibly have thought otherwise. When further pressed, Mr Lawson resorted to the suggestion that, under the previous legislation, technical errors and omissions were more likely to accrue to the benefit of the person whose extradition was sought, the implication being that the US authorities were anxious to avoid the risk of being foiled by such technical errors and omissions. This virtually amounts to a submission that Mr McKinnon has been deprived of the opportunity to escape extradition on a hypothetical technicality. It is a most unattractive argument. We unhesitatingly reject it.

(2) The proposed plea bargain and repatriation

40. Notwithstanding the fact that these issues were raised very late in the day, we have seen fit to allow them to be advanced on the basis that, if the US Government or the Secretary of State proves to have been disadvantaged by the tardiness, we would assure them of the opportunity to alleviate the disadvantage. In the circumstances, we have felt able to decide this case on the assumption that the evidence filed on behalf of Mr McKinnon is correct. To understand the basis upon which this ground of appeal is advanced, it is necessary to delve more deeply into the historical development of the application for extradition. We base the following account on a witness statement of Ms Karen Todner, Mr McKinnon's solicitor.
41. In November 2002 Ms Todner became aware that the person concerned with the prosecution interest in the US was Mr Scott Stein. She had a telephone conversation with Mr Stein on 13 November 2002. Her attendance note of that date indicates that Mr Stein told her that the maximum sentence for each of the computer offences was 10 years' imprisonment and that "if they go to trial the hard way, he is looking at approximately 51 months … if he goes voluntarily, he could be looking at a sentence of around 37 months – 2-2½ year range". In a further conversation on 19 December 2002 Mr Stein said that they would give Mr McKinnon a better deal if he were willing to go to the United States of America voluntarily and not oppose extradition. In those circumstances the prosecuting authorities would not oppose a repatriation enabling Mr McKinnon to serve his sentence in this country. On 17 January 2003 a representative of Mr McKinnon's solicitors, Mr Newport, met with Mr Ed Gibson, the American legal attaché at the Embassy in London. Mr Newport's attendance note states that Mr Gibson "had been given the necessary authority to address the issues with us and enter into meaningful negotiations". Mr Gibson described the conversation as being "off the record".
42. On 7 April 2003 Ms Todner and Mr Newport met with Mr Gibson at the American Embassy. In her witness statement Ms Todner describes the meeting in the following terms:

"Mr Gibson indicated that the US authorities regarded English sentencing as too lenient for the conduct alleged. Mr Gibson referred 'off the record' to a determination on the part of the New Jersey authorities to see Mr McKinnon 'fry' … We were provided with a copy of the proposed Plea Agreement. The agreement, if implemented, would have required Mr McKinnon to plead guilty to two counts on the indictments, to submit to a restitution order in respect of losses in the range of $400,000 - $1million and to waive his right to appeal against whatever sentence was imposed (the maximum being 15 years), although the prosecutors retained a right of appeal. In return the prosecutors would recommend to the court an 'offense level' of 21 points (translating, under the US points system for sentencing, to a sentence in the range of 37 – 46 months) and would not oppose Mr McKinnon being transferred to serve his sentence in the UK which, had it happened, would have resulted in his being subject to UK remission rules which are substantially more generous than the 15% allowance which may be made in the US."

43. Much of that account replicates Ms Todner's attendance note. The reference to "fry" does not appear in the attendance note but it did appear, attributed to Mr Gibson, in a Note to Counsel dictated by Ms Todner the following day.
44. On 8 April 2003 Mr Gibson wrote to Mr Newport saying that he was "assured" that "if a recommendation can be made to the Home Office as to appropriate category of prison facility in the United Kingdom via diplomatic channels by the appropriate US Government official/agency, it will be accomplished." At the end of the letter he stated:

"To confirm, all discussions, memoranda, correspondence and notes of telephone calls are not to be considered part of the record, as unused material or otherwise, should this matter proceed via extradition."

45. Mr Gibson sent a similar letter the following day adding:

"Reference(s) to any proposed sentence as set forth in the enclosed document, or otherwise, outside of these plea discussions, shall have no effect should this matter proceed via extradition or other means."

46. There was a further meeting with Mr Gibson at the Embassy on 14 April 2003. On this occasion Mr Gibson was accompanied by Mr Stein and Ms Todner by Leading Counsel. We have not seen an attendance note of the meeting but in her witness statement Ms Todner describes it as being essentially confirmatory of what had previously been discussed. She describes it as follows:

"If Mr McKinnon pleaded guilty to two counts and signed up to the Plea Agreement, whilst no absolute guarantee could be given, the prosecuting authorities would:

recommend a 21 point 'offense level';

co-operate in seeking to expedite the sentencing hearing and;

would procure Mr McKinnon's repatriation to serve the balance of his sentence within 6 or at worst 12 months of his extradition.

If, on the other hand, he did not so agree, all bets were off:

Sentence would be at large, subject to the statutory maxima. 8 – 10 years or possibly longer was indicated.

Repatriation would not occur; and there was no remedy available to Mr McKinnon to challenge its refusal;

Thus, no substantial remission would be 'earned': he would serve a substantial sentence in a US prison, possibly a high security prison, with, at best a 15% 'remission'."

47. Following that meeting Ms Todner took advice from an American defence lawyer. Mr McKinnon subsequently declined the offer. Thereafter, nothing more was heard from the American authorities until the extradition proceedings were launched.
48. All this is evidence that played no part in the hearing before the District Judge. It will be recalled that in the provisions dealing with an appeal to this court under section 103, section 104(4) refers to evidence that "is available that was not available at the extradition hearing" before the District Judge. This led Mr Summers to submit that we should not consider Ms Todner's evidence because it had been available at the time of the hearing before the District Judge. Ms Todner provides an answer to that in her witness statement. She states:

"Rightly or wrongly, I felt bound by the US authorities' 'off the record'/confidentiality terms, and thus we did not refer to the plea bargaining. At the hearing at Bow Street, the US produced [an] affidavit and referred to that process. Confidentiality having been thus breached, it seemed appropriate to deal with the issue."

49. It could perhaps be said that the material could still have been produced at the hearing before the District Judge at some point after the reference in the affidavit. Nevertheless, we are prepared to take a generous view of this and to consider the material on the basis that it was not available at the hearing before the District Judge because, "rightly or wrongly", Mr McKinnon's legal advisers did not then feel free to raise it.
50. We have seen the Plea Agreement. It is a curious document to one steeped in English criminal procedure. One of its provisions was as follows:

"The defendant is aware that the defendant's sentence will be imposed in accordance with the Sentencing Guidelines and Policy Statements. The defendant is aware that the court has jurisdiction and authority to impose any sentence within the statutory maximum set for the offense(s) to which the defendant pleads guilty. The defendant is aware that the court has not yet determined a sentence. The defendant is also aware that any estimate of the probable sentencing range under the Sentencing Guidelines that the defendant may have received from the defendant's counsel, the United States, or the Probation Office, is a prediction not a promise, and is not binding on the United States, the Probation Office or the Court. The United States makes no promise or representation concerning what sentence the defendant will receive and the defendant cannot withdraw a guilty plea based upon the actual sentence."

Mr Lawson described the Plea Agreement as a "pig in a poke deal".

51. The repatriation of prisoners is the subject of international agreement in the form of the Convention on the Transfer of Sentenced Persons of 1983. Whilst it was the result of a Council of Europe initiative, other states have signed up to it, including the United States of America.
52. In addition to the factual evidence we have received evidence of American law and practice from American attorneys instructed by Ms Todner. Among other things, the evidence points to some unusual features in the particular proposed Plea Agreement and to the opinion that support from the prosecuting authorities is the single most important factor in deciding applications for repatriation. Where a transfer is refused by the Department of Justice, the decision is unreviewable in the American courts. Moreover the reasons for the refusal are exempt from disclosure.
53. We have also seen evidence from American lawyers as to the sentencing considerations which would follow a conviction in Mr McKinnon's case. The points system is by no means easy to follow and the parties to this appeal do not both interpret it in the same way. However, we are content to assume that, if comprehensively convicted, Mr McKinnon would be at risk of a substantial sentence and one that would be significantly longer than the one that would have been recommended to the court had he accepted the plea bargain.
54. We make no secret of the fact that we view with a degree of distaste the way in which the American authorities are alleged to have approached the plea bargain negotiations. Viewed from the perspective of an English court the notion that a prosecutor may seek to induce a plea of guilty on the basis that substantial benefits will be withdrawn if one is not forthcoming is anathema. We refer in particular to the providing and withdrawal of support towards repatriation. However, we have to deal with this case as it now is. Mr McKinnon did not accept the plea bargain. If he has a defence, he was right to stand firm. If he does not, he may yet live to regret his decision. We are quite sure that he will receive a fair trial in the American courts and that, if there were to be an error in the trial process or in relation to sentencing, he would have appropriate protection through the appellate process.
55. The one point that has caused us serious concern is whether the contingent but extant threat (for such it is) not to support repatriation in the event of conviction after a trial in the US can be said to amount to an abuse of these extradition proceedings. Mr Lawson seeks to rely on the decision of the Supreme Court of Canada in United States of America v Cobb [2001] 1SCR 587. That was one of a number of linked cases in which the US Government was seeking the extradition of Canadian nationals in connection with mail fraud charges. Some alleged co-accused submitted voluntarily to the court in Pennsylvania. When sentencing one of them the trial judge had said:

"I want you to believe me that as to those people who don't come in and co-operate and if we get them extradited and they're found guilty, as far as I am concerned they're going to get the absolute maximum jail sentence that the law permits me to give."

56. About a week before the extradition hearing in Canada, the American prosecuting attorney was interviewed on Canadian television. He said:

"I have told some of these individuals, 'Look, you can come down and you can put this behind you by serving your time in prison and making restitution to the victims, or you can wind up serving a great deal longer sentence under much more stringent conditions' and described those conditions to them."

57. When asked by the interviewer to describe the conditions, the attorney said:

"You're going to be the boyfriend of a very bad man if you wait out your extradition."

58. He added that out of the 89 people indicted, approximately 55 had said "We give up". The reference to being "the boyfriend of a very bad man" was taken by the Supreme Court to be a clear reference to homosexual rape whilst in prison. Giving the judgment of the Court, McLachin CJ said (paragraphs 52 and 53):

"By placing undue pressure on Canadian citizens to forego due legal process in Canada, the foreign state had disentitled itself from pursuing its recourse before the courts and attempting to show why extradition should legally proceed … [The judge] was also correct in concluding as he did that this was one of the clearest cases where to proceed further with the extradition hearing would violate 'those fundamental principles of justice which underlie the community's sense of fair play and decency' (Keyowski [1988] 1 SCR 657 at pages 658 – 659)."

59. A similar result arose in the related case of United States of America v Shulman [2001] 1 SCR 616, albeit through a somewhat different procedural and chronological analysis. As we read these decisions, the Supreme Court was far more disturbed by the comments of the prosecution attorney than by what the sentencing judge had said, which, properly construed, amounted to no more than an indication that he would pass a severe but lawful sentence which would not be discounted by reference to the mitigation which arose in the cases of those who had surrendered voluntarily. These impressive decisions of the Supreme Court are of strong persuasive authority.
60. However, Mr Summers submits that they are distinguishable. We agree. There is a fundamental difference between, on the one hand, offering something lawful to which a person is not automatically entitled in law (such as the acceptance of pleas to fewer or lesser offences with a consequent reduction in sentence or assistance towards repatriation) and, on the other hand, threatening something unlawful against which the person would normally have legal protection (such as an irremediably unlawful sentence or homosexual rape). Whilst we are prepared to accept that evidence of conduct on the part of the prosecuting or judicial authorities in a requesting state may amount to the abuse of extradition proceedings, we do not consider that it does so in the present case. We do not consider that we should allow our cultural reservations about this style of plea bargaining to stand in the way of extradition. We repeat that we are entirely satisfied that Mr McKinnon will be fairly treated by the American courts. If he is convicted and sentenced to a lengthy term of imprisonment, he will be able to apply to the Department of Justice for repatriation. Now that the history of the plea bargaining process is, without objection from the US Government, out in the open in these proceedings, he will be able to produce this judgment to the Department. We expect that the Department would deal with any such application on the basis of the material that was presented to it at the time. We cannot predict what representations may then be made on behalf of Mr McKinnon or from what sources they may come. Whilst we keep in mind the evidence that support from the US prosecuting authorities is invaluable, we do not feel able to conclude that their present posture puts an end to all hope of repatriation. We do not find an abuse of process in this case.

The appeal against the decision of the Secretary of State

61. Although Mr Lawson may wish to pursue some points (upon which we have not heard detailed argument) at a higher level if there are developments favourable to his case in the House of Lords, there is no live issue in this court relating to the narrow grounds upon which section 108 affords a right of appeal against the Secretary of State. However, Mr Lawson does seek to challenge the decision of the Secretary of State on human rights grounds. Although section 87 provides a bar to extradition on human rights grounds when the matter is being considered by the District Judge and, correspondingly, on any appeal against his decision, the 2003 Act does not specify a breach of Convention rights as a basis for appealing against the decision of the Secretary of State. However, the Secretary of State is a public authority within the meaning of section 6 of the Human Rights Act 1998 and the 2003 Act does not disapply section 6. Accordingly, we accept, that in principle, there may be cases in which the Secretary of State is susceptible to a human rights challenge. The point was left open in Bermingham (see paragraphs 152 – 153), although Laws LJ expressed the view that the true position may very well be that Convention rights are sufficiently protected in the appeal against the decision of the District Judge which can only be heard after the decision of the Secretary of State.
62. It seems to us that in the great majority of cases an appellant's human rights case will stand or fall with his appeal against the decision of the District Judge. If the appeal turns on material or argument that was before the District Judge and he found no breach of the Convention, then it is the appeal against his decision that will provide the forum for the human rights challenge in this Court. Likewise if the material or argument was not advanced before the District Judge but arises for proper consideration in this Court under section 103(4) as an issue "not raised at the extradition hearing" or evidence "that was not available at the extradition hearing".
63. In the present case Mr McKinnon has been able to raise his human rights points in this Court in the context of his appeal against the decision of the District Judge. They have failed, and in our judgment, he has no separate human rights case against the Secretary of State (to whom no representations of a human rights nature were made in any event). We tend to the view that, in reality, the only situation in which a free-standing human rights case may lie against the Secretary of State pursuant to section 6 of the Human Rights Act is where statutory appeals against the decisions of the District Judge and the Secretary of State have been exhausted but something arises between finality in those proceedings and actual removal to the requesting state – for example, a supervening illness which impacts on the subject's ability to travel to or to face trial in the requesting state. At that stage a challenge to a refusal of the Secretary of State to reconsider extradition on human rights grounds may arise (subject to the high threshold), albeit probably in judicial review proceedings rather than by way of statutory appeal.

Conclusion

64. It follows from what we have said that we do not find any of the grounds of appeal against the decision of the District Judge or the decision of the Secretary of State to have been established. We shall therefore dismiss the appeals. We have previously indicated that, in this eventuality, we would entertain submissions as to any steps which may be considered necessary to protect the position of Mr McKinnon pending the resolution of petitions currently before the House of Lords in other cases. To this end, we invite written submissions on this issue to be lodged by 4.30pm on the day preceding the handing down of this judgment. If there are any other ancillary matters upon which a ruling is necessary, they too should be the subject of written submissions with the same deadline. On the occasion of handing down of this judgment, the Court will only be available to sit for a very short time.