Reply from the Home Office

Below is an example of a reply from the Home Office to a Representation to the Home Secretary on behalf of Gary McKinnon sent in by Mike.

There are a couple of obvious mistakes in this Home Office reply:

Reference: Tnnnnn/n

Dear Mr aaaaa

Thank you for your e-mail of 22/05/06 19:11:24 addressed to the Home Secretary, concerning a request by the USA for the extradition of Gary McKinnon who stands accused of offences connected to computer hacking.

The UK has important international obligations in the area of extradition. It takes those obligations seriously. Where, as here, a request for extradition is made, those obligations become engaged and make it our duty to assist within of course, what the law permits.

As to that, the US request was found to be valid (within the meaning of the 2003 Extradition Act).

"Valid within the meaning of the 2003 Extradition Act" only means that the forms were addressed and filled out correctly, and that the right suspect was identified.

Accordingly on 17 November 2005, the Secretary of State certified it. The effect of certifying an extradition request in this way is to place matters before the courts.

This date when the Home Secretary "certified" the extradition request is obviously incorrect !

Gary first appeared at Bow Street Magistrates' Court on the 10th June 2005

He was first arrested in April 2002 and then released without charge.

As you are probably aware on 10 May the court found that there was a case to answer and that the statutory barriers to surrender did not avail Mr McKinnon. The District Judge therefore sent the case to the Secretary of State for a decision as to surrender. At this point, Mr McKinnon has a statutory opportunity inside six weeks to make representations (albeit on limited grounds) against surrender.

6 weeks from the 10th May is no later than Wednesday 21st June.

You can tell from this turn of phrase that any Representations received after that date are liklely to be ignored by the Home Office.

If the Secretary of State orders surrender, Mr McKinnon will be able to challenge the decision of the District Judge and/or the Secretary of State by appealing to the High Court. In this way, we hope you will at least feel assured that the procedure ensures all relevant matters are not only considered fairly and properly but are susceptible to challenge on appeal.

Most people would consider that "all relevant matters" would actually include some, if not necessarily all, of the prima facie evidence against Gary.

No evidence whatsoever has been heard during the extradition proceedings, only allegations, and vastly inflated and unsubstantiated claims for hundreds of thousands of dollars of alleged "damage".

Nobody expects an extradition hearing to be a full trial, but for there not to have been any sort of sanity check by a Britiish court, and for there to have been no opportunity for Gary's defence lawyers to challenge the evidence, is utterly wrong. This is especially unfair, since that is exactly what has to happen, perfectly reasonably, in a US Court, if the UK Government wants to extradite someone from there.


Both the old and the current legislation permit extradition for conduct committed outside the requesting state, as with the case of Gary McKinnon. This is a vital provision to combat the increasingly global nature of serious crime.

What exactly has the "increasingly global nature of serious crime" got to do with this case ?

The generally accepted definition of a Serious Crime in the United Kingdom is the one which used in, for example the Regulation of Investigatory Powers Act 2000 Section 81 General Interpretation


(b) references to serious crime are references to crime that satisfies the test in subsection (3)(a) or (b).

(3) Those tests are-

(a) that the offence or one of the offences that is or would be constituted by the conduct is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more;

(b) that the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose.

Apart from Terrorism or Espionage offences, murder. kidnapping. etc. the other "serious crimes", as defined by the priorities of the newly established Serious Organised Crime Agency i.e. firstly Drug trafficing in Class A drugs (cocaine, heroin, MDMA etc), then human trafficing (sex slaves, exploted illegal immigrant workers), and then large scale money laundering. Computer "hacking" offences which are not part of say, a wider blackmail or large scale fraud, are not considered to be a serious crime.

Gary McKinnon is not accused of any of these types of criimes whatsoever.

The Computer Misuse Act 1990 section 1 Unauthorised access to computer material penalty for unauthorised access is currently a maximum of six months in prison,

The Computer Misuse Act 1990 section 3 Unauthorised modification of computer material penalty for is currently a maximum of 5 years in prison,

First time offenders are extremley unlikely to be given the maximum sentence, and so neither of these offences fall under the definition of Serious Crime.

These penalties are in the process of being increased via amendments in the Police and Justice Bill, currently being considered in the House of Lords, bit even if they are passed into law later on this year, these amendments have no relevance to Gary's case, based on alleged crimes back in 2001 / 2002.

The key issue is to ensure that offences are dealt with in the place where they can be most effectively prosecuted. For example, where the main witnesses and the main evidence are in another state, and that state has a justice system comparable to our own in terms of fairness, it is more appropriate for the defendants to face justice there.

Half the important evidence and witnesses are here in the UK, not in th USA e.g. the Internet Service Provider records and witnesses, the computer forensics analysis and witnesses, the UK National High Tech Crime Unit police officiers who interviewed Gary, which identify Gary rather than any number of other people around the world, who happened to also be investigating the US Military's unsecured networks at the same time.

The US prosecutors have to prove that it was Gary McKinnon and nobody else, who also had access to the same systems, at the same time, who committed each of their allegations of "damage".



Any decision on whether to launch a prosecution in this country is for the UK’s independent prosecuting authorities, such as the Crown Prosecution Service (CPS), as the Home Office has no prosecutorial role. The published guidance in the Code for Crown Prosecutors is followed when deciding whether to prosecute or continue a prosecution against an individual in the UK.

Who actually believes that the Crown Prosecution Service did not closely consult with, and take advice andd instructions from, the Home Office, on an extradition case involving the US Military and Intelligence Agencies ?

I hope the explanation above helps to make the situation clearer.

Yours sincerely

It will be interesting to see if the Home Office sticks to this boilerplate reply to other Representations on behalf of Gary McKinnon.