Up to 4 weeks for the Director of Public Prosecutions to consider Gary McKinnon's confession

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The Ham & High, the local newspaper group covering North London, reports:

Hacker given 11th-hour lifeline

editorial@hamhigh.co.uk
15 January 2009
By Robyn Rosen

COMPUTER hacker and former Crouch End resident, Gary McKinnon has been given a lifeline in the 11th hour, just days before a final decision on his extradition is made.

Mr McKinnon, 42 and a former Highgate Wood pupil, is currently awaiting extradition after being accused of causing $700,000 worth of damage when he allegedly hacked into US security systems from his Hillfield Avenue home in 2002.

Today, his lawyers received a letter from the director of public prosecutions (DPP) stating it would take up to four weeks to deliberate over Mr McKinnon's signed confession.

Last month, Mr McKinnon, who faces up to 60 years in an American prison, signed a formal confession pleading guilty to computer misuse, in an attempt to have him tried in this country.

On Tuesday (January 20), he faces an oral application for a judicial review at the High Court, where his lawyers now plan to delay the extradition until after the DPP has come to a decision.

"If that fails, we really have come to the end of the line," Mr McKinnon's solicitor, Karen Todner, said. "Gary would then be extradited within the next 10 days."

[...]

N.B. Gary has not confessed to causing any "financial damage".

The recent changes to the UK Computer Misuse Act 1990, brought in by the Police and Justice Act 2006 Schedule 14 Minor and Consequential Amendments, which came into force in October 2008, and which repealed Section 11 Proceedings for offences under section 1, in the original CMA for Section 1 unuthorised access offences, could also present the Crown Prosecution Service with a dilemma:

11 Proceedings for offences under section 1.

[...]

(2) Subject to subsection (3) below, proceedings for an offence under section 1 above may be brought within a period of six months from the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to his knowledge.

(3) No such proceedings shall be brought by virtue of this section more than three years after the commission of the offence.

If the CPS say that Gary cannot now be prosecuted for unauthorised computer access, because the old version of the law applied at the time, and those Section 11 time limits apply, then the same could be said about the extradition law back in 2002 (the Extradition Act 1989), which was based on the 1972 Extradition treaty, requiring prima facie evidence to be presented to a UK Court, where it could be challenged by the defence.

If the CPS decides that the amendments to the Computer Misuse Act 1990 brought in by the Police and Justice Act 2006, do apply in Gary's case, just as the controversial Extradition Act 2003 has been applied to his case retrospectively, then there is no reason for refusing to prosecute him in the UK.

Any such prosecution should then prevent extradition to the USA, under the double jeopardy principle, which does apply to extradition.

If the more serious charges of altering or deleting computer data or programmes are brought (these have never been subject to the 6 month and 3 year prosecution horizons), then the fact that the US systems appear to have been so open, with no password or firewalls required for full systems administrator access, remotely from any country on the internet, would make it hard to prove, "beyond reasonable doubt", that only Gary and nobody else, could have committed the alleged offences, when so many other people, who were much more highly motivated to attack US military systems, were also exploiting the same US military management failure.

Retrospective legislation always produces legal messes and injustices, and this legal nightmare is entirely the fault of the current Labour Government.