The Daily Mail newspaper has published another powerful letter, from Lord Carlile of Berriew, the Liberal Democrat peer and eminent QC, who is still the Government's Independent Reviewer of Terrorism Legislation and therefore well aware of extradition and national security issues.
By James Slack and Michael Seamark
Last updated at 1:34 AM on 31st May 2010
Home Secretary Theresa May has temporarily halted his removal to consider new medical evidence.
Mr Clegg - previously one of Gary's staunchest supporters - surprised campaigners when he said: 'What I haven't got power to do, neither has the Home Secretary neither has even the Prime Minister, is to completely reverse and undo certain legal aspects of this.'
Gary's solicitor Karen Todner said: 'I think Nick Clegg needs to understand there is no court decision the Home Secretary would be undermining were she to make a decision based on the medical evidence which she now has that Gary McKinnon
should not be extradited.'
His lawyers are submitting new evidence to Mrs May, who is then expected to spend weeks considering it. Mrs May has also ordered a review of the 2003 Extradition Act.
Legal experts insist that - while lopsided - the Extradition Act does allow Gary to be saved.
Advice obtained from human rights QC Tim Owen and Julian Knowles, one of the UK's leading extradition lawyers, by the Mail stated the Act 'gives the English courts the primary responsibility - but, importantly, not the exclusive responsibility - for ensuring that...safeguards are maintained'.
They went on: 'It is therefore plain the Home Secretary has the power - and indeed the duty - to intervene in any extradition case, even after the court process has ended, if the evidence establishes that there is a real risk of a human rights breach should extradition proceed.
'Statements made to the contrary are obviously and plainly wrong.'
Lord Carlile's letter in full
'I welcome the Home Secretary's recent decision to delay the Judicial Review in the case of Gary McKinnon.
Theresa May was right to agree to reconsider the lawfulness of extraditing this vulnerable but misguided computer obsessive, in the face of compelling medical evidence as to the risks associated with enforcing his extradition.
It takes a principled and wise Secretary of State to hear the advice of civil servants, political advisors and Government law officers and yet still take on board that available from third party legal advisors outside Whitehall.
Twice I have been compelled to set out my views, based on expert legal opinion of others, to Mrs May's predecessors This case is not only of legal importance, but also of considerable public interest and concern.
One of the submissions to the High Court in London by the Home Office's lawyers last year stated that 'the Home Secretary is powerless to stop this extradition'. It was then my view that this contention is wholly wrong in law - and this remains my view today. Clearly a misunderstanding of a Home Secretary's powers should not be used as justification for a decision to extradite this unfortunate British citizen.
There is no doubt that Mr McKinnon could be prosecuted in this country, given that the acts of unlawful access occurred within our jurisdiction (ie from his computer in North London) and that he has admitted the offences.
I am not alone among experienced lawyers in considering the Home Secretary has the power to halt this extradition. I have read the opinion of the brilliant public lawyer Edward Fitzgerald CBE QC: he has reinforced my view that laying the circumstances for a domestic prosecution is not only within the power of this Government, but is wholly justifiable.
US prosecutors should now accept the singular circumstances of the case. It is a one-off, that suggests no precedent for other cases. They should accept that the British authorities should be entitled to deal with the case in full, taking fully into account the impact upon the alleged victim agencies in the USA, such as the Pentagon.
It is wholly conceivable that the US authorities would seek to prosecute their own citizens in lieu of extraditing them to Britain, were the circumstances reversed.
The English legal system is perfectly positioned to deal with cases of this nature making McKinnon's extradition both unnecessary and disproportionate.
Moreover, a decision to prosecute here would not be without precedent. There have been at least three other cases of hacking into US computer systems that have been prosecuted in the UK. It is unfathomable why Mr McKinnon should be treated differently.
This case has rumbled on for over 8 years. A just, compassionate and lawful decision is seriously overdue. The choice is not just to extradite or set free. There should be a UK investigation and where real evidence of unlawful behaviour exists, Mr McKinnon should be held to account.
However, for this to happen our Government needs properly to take responsibility for this case rather than cede prosecution to another jurisdiction.
The prolonged wrangling over his case discredits the previous Government and shines an uncomfortable spotlight on the workings of the Extradition Act 2003.
In my view, our extradition arrangements need urgent examination, particularly to allow judicial consideration of the correct jurisdiction for prosecution where more than one country seeks to lay claim (known in legal terms as natural forum).
As parliamentarians, we should recognise our primary duty is to protect not only British interests but also the most vulnerable and eccentric in our society.
By all accounts the uncertainty in this case continues to have a severely detrimental effect on McKinnon's mental health. His and his family's anguish is evident to all.
This is an exceptional case, worthy of exceptional consideration. I believe we now have the Government to give just that.'