Examinatino of Witnesses (Questions 1-40)
MRS JANIS
SHARPE, MR
BEN COOPER
AND MR
MARK LEVER
10 NOVEMBER 2009
Chairman: Can I call the committee to
order. Could I refer everybody to the Register of Members' Interests,
which sets out the interests of members of this Committee. Mrs
Dean has a particular interest to declare.
Mrs Dean: Can I declare that I am a member
of the All-Party Parliamentary Group for Autism and a past Chairman
of that group.
Q1 Chairman: This is a one-off inquiry,
the committee's inquiry into the role of the Home Secretary in
relation to the Extradition Treaty between the United Kingdom
and the United States of America, and it will focus, in particular,
upon the extent of the Home Secretary's discretion in preventing
extradition between those two countries and, also, any other factors
that he may take into account when making that decision. Can I
welcome to the dais Janis Sharpe, the mother of Gary McKinnon,
Mark Lever, who is the Chief Executive of the National Autistic
Society and, for the purposes of the record, could the other gentleman
tell us who he is?
Mr Cooper: Certainly. My name
is Ben Cooper; I am a barrister from Doughty Street Chambers.
I represent Gary McKinnon. I am not here to address you directly;
I am simply here to assist Janis Sharpe in case the need arises.
Q2 Chairman: Can I begin, Mrs Sharpe,
by asking you about the current situation regarding your son's
case?
Mrs Sharpe: Do you mean medically?
Q3 Chairman: Legally what is the
current situation?
Mrs Sharpe: Legally the current
thing is that Alan Johnson is considering new medical evidence,
which is very compelling, as to how much Gary's mental health
has deteriorated. It is very difficult to explain the stress of
seven, almost eight, years on a daily basis. The fear is with
you constantly and Gary cannot cope. Very few people could cope
with that fear. Every waking second you feel in terror. Gary never
travels; he never leaves North London.
Q4 Chairman: We will come on to the
specific circumstances of the case, but at the moment it is being
considered by the Home Secretary?
Mrs Sharpe: The Home Secretary
is looking into new evidence and he has put a halt on the extradition.
Q5 Chairman: Have you sent in that
new evidence?
Mrs Sharpe: His solicitors have
sent in the new evidence.
Q6 Chairman: How do you think extradition
will affect Gary if he is extradited to the United States?
Mrs Sharpe: Horrendously. He is
scared to travel on tubes; he does not travel; he does not go
abroad on holiday. Billy Cottrell, who was imprisoned in America,
has Asperger's. They do not distinguish between races, they do
not realise they have to stand—in America this is—beside
certain races for safety, they do not recognise facial expressions,
body language and tell the truth even to their own detriment.
So, if someone asks them something and they answer truthfully,
it could be incredibly bad for him.
Q7 Mr Streeter: Mrs Sharpe, I think
it is common ground that the Extradition Act 2003 severely limits
the Home Secretary's discretion in refusing a request for extradition.
Can you spell out for the committee the grounds on which you want
him to refuse the request that you have put to him?
Mrs Sharpe: Basically, on mental
health issues. Two QCs from Cherie Blair's chambers have said
that he can refuse extradition on mental health grounds. Also,
Lord Carlisle, the minister appointed for terror laws, has said
you can halt it. Also, I think we were told that this treaty was
to be used—or led to believe—mainly for terrorists.
Surely the Home Secretary can say to America that this is wrong.
This treaty is, essentially, being abused. People like Ian Norris
and Gary are not terrorists, clearly, and to use it against this
kind of person is wrong. I am sure that Alan Johnson could stand
up to America and say this is wrong. Also, Gary committed this
crime in 2002. He was arrested in March 2002, before this treaty
was even thought of or signed. The sentences are meant to be deterrents.
He could not possibly have known this. He was told by the High-Tech
Crime Unit he was looking at probably six months community service,
but in the embassy the American prosecutor said if he did not
accept a plea bargain they would prosecute him for the max, and
one state wanted to see him fry, which is a huge difference to
six months' community service. They also waited three years before
applying for extradition, despite indicting him in 2002, issuing
an arrest warrant in America in 2002. They waited until we started
using this treaty, wherein they no longer have to provide evidence
of damage.
Q8 Mr Streeter: Can I try and summarise
that. So it is medical grounds?
Mrs Sharpe: Mental health, yes.
Q9 Mr Streeter: It is because this
Act was never intended to operate in circumstances like these.
Mrs Sharpe: Yes.
Q10 Mr Streeter: And also because
it would be operating retrospectively in terms of when the act
or the crime took place. Is that about right?
Mrs Sharpe: That is right, and
the treaty actually says it cannot be used retrospectively, and
they say it is not, because they didn't request the extradition
for several years, but in a sense that is a sort of ploy to be
able to make it retrospective because now they do not have to
have the evidence of the damage that Gary has always denied.
Q11 Mr Winnick: This situation has
gone on, as you have just said, Mrs Sharpe, for quite a long time.
Mrs Sharpe: A very long time.
Q12 Mr Winnick: Seven years, in fact.
Mrs Sharpe: Yes, it is seven and
a half years.
Q13 Mr Winnick: That must have been
quite a strain for you and the family?
Mrs Sharpe: Incredibly. It has
ruined Gary's life; it has ruined our lives. Your life is on hold:
you cannot plan or do anything, to work is very difficult. It
is much harder for us, because you are trying to earn a living
at the same time as concentrating fully on Gary's case, but it
has destroyed Gary. Gary is an innocent. I know that sounds silly,
because what he did was wrong and he accepts he should be tried
here, but he is so straightforward and so gentle and it has destroyed
him. If someone touches him, he jumps. If the door goes, he jumps.
He has incredible chest pains every morning he wakes. He is so
scared. He is now on medication and he is under the care of Professor
Jeremy Turk, and we do not like the idea of medication, but Gary
was suicidal after the last result because we had hoped for a
good result.
Q14 Mr Winnick: Mrs Sharpe, all of
us appreciate the paper that you have sent us. In the course of
that paper you do say that what your son did was wrong, it was
naive and he should be prosecuted as a deterrent to him and others
like him?
Mrs Sharpe: Yes.
Q15 Mr Winnick: So there is no question
in your mind that an offence was committed?
Mrs Sharpe: That is right.
Q16 Mr Winnick: And that he should
be tried by a court.
Mrs Sharpe: Yes, but under the
Magna Carta Gary has a right to be tried by a jury of his peers.
His peers are here. Extradition was meant for someone who has
committed a crime abroad and fled from that country, someone who
is a fugitive. Gary is not a fugitive. Extradition was not meant
to take you from the land you were born in and drag you from it.
Q17 Mr Winnick: But he would be fit
enough to stand trial in a court in the United Kingdom.
Mrs Sharpe: He would have no choice
but to do it. It is not that he is fit, because he is mentally
in an incredibly bad way, but he would have no choice. The fear
of being taken from your family, from your support, from everything
you have ever known.
Q18 Mr Winnick: I understand the
whole argument is against extradition to the United States, but
as far as having allegedly—because until a court decides
it is allegedly—committed a wrong, then he could stand in
a court in the United Kingdom. That is the professional view of
Mr Lever?
Mr Lever: Certainly it is the
view of the National Autistic Society. Our role in this has been
to provide evidence around three specific areas around Asperger's
Syndrome, and that is really to provide evidence on the nature
of Asperger's Syndrome and how that can affect an individual's
behaviour, but also how stressful situations can impact the mental
health of people with Asperger's Syndrome in general. Our concern
is that the extradition process will put significant stress on
somebody with Asperger's Syndrome that could lead to severe mental
health problems.
Q19 Mr Winnick: There is no objection
from your society that a person in that condition could be charged
here in Britain.
Mr Lever: No. In all cases, it
is important that care and support networks are provided, and
in Gary's case this is in Britain.
Q20 Mrs Dean: Can I ask Mrs Sharpe
if she could say a little about the fact that Gary's diagnosis
was quite late, I think several years after the offence was committed?
Can you say why he did not have a diagnosis earlier, perhaps as
a child?
Mrs Sharpe: The World Health Organisation
only recognised Asperger's Syndrome in 1995. Gary was, by then,
almost 30. So it would have been impossible. In fact, Peter Howson,
the artist, was diagnosed in adulthood because, as it was not
known or recognised until 1995, it was not possible for a diagnosis
as a child. We always knew he was very different—intelligent
but eccentric—and did not understand many social norms.
He also used to faint—this is in his medical records—prior
to going on tubes, and so on, because of his fear of travel. There
were so many things and the diagnosis of Asperger's has made us
realise why Gary was as he was, but it would have been impossible
for him to have been diagnosed as a child.
Q21 Mrs Dean: Was he diagnosed because
of this case?
Mrs Sharpe: He was diagnosed because
he did an interview on television and he was telling the truth
even to his own detriment. They were asking, "What would
you say to the people in America?", and his answers were
not helping him, and he continued being quite obsessive in the
way he was describing things and some people who were connected
to Asperger's support groups and Asperger's medical places actually
phoned and wrote to the solicitor saying that Gary had Asperger's.
When we were told this, I said, "No." I spoke to Dr
Baron-Cohen eventually and said that Gary came on quite fast as
a child; he could speak when he was about ten months and he could
read when he was three, so he has not got it; and he said, no,
that is Asperger's. It is high-functioning autism; they come on
quickly but they are not recognising facial expressions, body
language, so many social norms.
Q22 Patrick Mercer: Mrs Sharpe, are
you afraid that Gary would not be treated fairly in a trial in
the USA, or are you more worried about the possibility he might
be imprisoned there?
Mrs Sharpe: He would be imprisoned,
because when people are extradited to America you are automatically
imprisoned. The "Nat West Three" were the exception
because Tony Blair and Baroness Scotland intervened on their behalf.
Gary does not have money for bail in any case. There was one American
hacker, Kevin Mitnick, who was kept in custody for five years
before accepting a plea bargain. Ninety-six per cent of cases
never go to trial in America; people are pushed into taking a
plea bargain; often innocent people are pushed into taking a plea
bargain—that is a reality. My fear is that I know Gary would
not survive. Gary is gentle to the core. He would rather be dead
than be extradited. That is the reality. There was Billy Cottrell,
as I say, in a Californian prison, who had Asperger's. His treatment
was horrendous. Stephen Hawkins and other scientists tried to
get him out. His obsession was physics. Because he would stand
up to people who were incredibly dangerous, he was beaten to a
pulp. The prison warders also discriminated because he was very
intelligent: his books were taken away or went missing; he was
kept in solitary for a very long time; his mother was not allowed
to see him. It was horrendous. There is so much more than that.
He was also put in with a prisoner who tried to gauge his eyes
out, and it was a deliberate act to put him in there. This is
in the public domain; it is all factual.
Patrick Mercer: Thank you, Mrs Sharpe.
Thank you, Chairman.
Q23 Mrs Dean: Mr Lever, could you
tell us a little more about why you think Mr McKinnon should not
be extradited?
Mr Lever: The concern that we
have about people with Asperger's Syndrome is that their condition
is such that, when they are put into stressful situations or situations
where there is a significant change in their circumstances, or
where their support networks and carers are removed from them,
the stressful situation can lead to high levels of anxiety, there
is a high likelihood of self harm or even possibly suicide, and
it is our view that the evidence we have seen of the deterioration
in Gary's mental health is that he would be incredibly vulnerable
to the process of extradition and could end up with severe mental
health problems.
Mrs Sharpe: Gary is under the
care of Professor Jeremy Turk. He is on medication now and he
has a relationship with Professor Turk and it is helping him to
cope. He really needs this. He is seeing him regularly now and
to be removed from this would also be dreadful for him. Also,
no other country in the world will extradite without evidence,
no other one but Britain. Surely we should have equal rights to
every other country, including America. Why on earth do we not
have equal rights to have evidence provided before extradition?
It is wrong.
Q24 David Davies: Mrs Sharpe or Mr
Lever, perhaps you could clarify something for me. We know that
there are seven members of Al Qaeda living openly in this country
who are foreign nationals and, I am told, members of the Taliban.
We cannot deport them back to their countries because, apparently,
they might face cruel and unusual punishment. I am having some
trouble understanding how we could be in a position where we might
be extraditing somebody for a minor IT offence to America? Why
can we not simply argue that he would clearly face cruel and unusual
punishment and perhaps ought to have more rights than members
of terrorist organisations who are foreign nationals anyway?
Mrs Sharpe: The Lords recently
made a ruling that secret evidence could not be used to hold some
of the people you are talking about, so I do not understand why
secret evidence can be used to extradite. I would have thought
that the Lords ruling that secret evidence cannot be used should
apply throughout, to all people, because extradition is horrendous.
Q25 David Davies: Is there any possibility
of making a legal argument that what he faces constitutes cruel
and unusual punishment? A long period of imprisonment for somebody
with mental health difficulties for what appear to be a fairly
miner offence, or what would be treated as one in this country,
surely constitutes cruel and unusual punishment.
Mrs Sharpe: Could Ben answer that
as his barrister?
Mr Cooper: That is exactly what
we have argued. Those are the representations that are presently
before the Secretary of State—Article 3, inhuman treatment—that
is what he is considering—with very powerful medical evidence.
Q26 Ms Buck: Mr Lever, just to play
devil's advocate slightly, the likelihood is that, sadly, our
jails are full of people with autism and Asperger's Syndrome and,
indeed, mental health conditions. Is it the contention of the
National Autistic Society that people with conditions such as
autism and Asperger's should not be put on trial or purely that
the condition should be considered at the point of sentencing,
or is it extradition specifically that is concerning you in this
case?
Mr Lever: There is a whole range
of issues that this case has opened up around the support available
to people with Asperger's and autism within the criminal justice
system. Certainly it is not our view that people should not face
trial. We are not saying that all. What the National Autistic
Society is campaigning for is to have greater awareness of autism
and Asperger's Syndrome within the criminal justice system generally,
a greater level of understanding, a greater level of support for
people who make their way through the system. There is research
going on at the moment into the prevalence levels of people with
autism and Asperger's Syndrome within the current prison system,
looking at how we can identify why that should be the case, but
from our point of view it is about providing the right support.
In this case it is not that Gary should not face trial, it is
really the extradition process itself and how that would impact
on somebody with Asperger's Syndrome, certainly somebody who is
clearly vulnerable to mental health problems.
Q27 Ms Buck: That is, to confirm
the point, because the distance involved and the strangeness of
the environment would be exceptionally stressful.
Mr Lever: The issues around travel,
the remoteness of support networks and familiarity of carers.
Q28 Martin Salter: Have we any evidence
of the level of the prison population that may be suffering from
degrees of autism at the moment, given that there are substantial
mental health issues, obviously, inside a prison?
Mr Lever: There is research going
on literally as we speak on that, but there is certainly anecdotal
evidence that the percentage of people within the prison population
with autism or Asperger's Syndrome is in excess of the general
prevalence within the population as a whole.
Q29 Martin Salter: Are there any
measures that you are aware of that the prison estate is taking
to recognise special measures for people with autism?
Mr Lever: I think it is limited.
One of the areas that we are campaigning on at the moment and
one of the reasons for the research is really to highlight the
issue of autism and Asperger's within the prison population and
to try to identify ways in which better support can be provided
to people in prison who have Asperger's or autism.
Q30 Martin Salter: This is not an
idea I subscribe to at all, but I have heard it said that there
is always a worry about precedent and that people could then claim
an autistic condition, but it is impossible, virtually, to fake
an autistic condition.
Mr Lever: Certainly if you take
the diagnosis that Gary has had, these are leading experts in
the field who have diagnosed him.
Q31 Martin Salter: I mean for others
to see.
Mr Lever: Yes, certainly going
through diagnosis, it is a rigorous process.
Martin Salter: Thank you for that.
Q32 Chairman: Mrs Sharpe, you have
led this campaign on behalf of your son for several years now.
How do you feel that the justice system has served you? Do you
think that the way in which this case has proceeded through the
various courts has been satisfactory?
Mrs Sharpe: I think the judges
do not quite know what to do because of this. It is very new and
they are not quite sure how much power they have to prevent this.
Gary offered to plead guilty. The judge at the High Court said
that he could be tried here. There is also another legal issue.
In America, if British people are there and use online to play
the lottery, it has been ruled that they cannot get their winnings,
because America do not allow online gambling. They say the crime
is taking place at the keyboard in America, so how can they then
decide that it is not taking place at the keyboard when it comes
to Britain. You cannot really have it both ways. It has never
really been proved, the forum has never really been looked at
properly, specifically in relation to online computer things,
and it has to be. You cannot decide I'll have it this way when
it suits me, I'll have it the other way when it does not. That
has to actually be debated and it has to be ruled on, because
at the moment I think people do not really know. I think the judges,
very often, are not very up on computers.[1]
Q33 Chairman: Did Gary ever explain to
you why he did this?
Mrs Sharpe: He did. He explained
that he was searching for UFOs. He told the High-Tech Crime Unit
in the first place that it was all on his computers. He was also
looking for free energy and anti-gravity. He was very silly. He
left notes saying their security was awful. They had no passwords,
no firewalls on thousands of machines and he left silly notes.
He also believed in all sorts of conspiracy theories and he left
these notes, which he should not have done, he was wrong,[2]
but he should be tried here. As I say, it has never been looked
at, computer crime, where it should or should not be, and you
cannot say it is at the keyboard level in one place and then say
it is online in the next.
Q34 Mr Streeter: If the Home Secretary
were to refuse your application, what is left to you in terms
of legal action in this country? Is this the final throw of the
dice?
Mrs Sharpe: It is the final. We
could go to the European Court of Human Rights, but I do not really
hold out much hope for that. So much was done on behalf of the
"Nat West Three", so much intervention was done, why
on earth can we not speak to them and say to America, "This
is ridiculous"? Gary can be tried. Why does America so much
want to prove a point and take him there? They say it is because
it would be expensive to bring witnesses. When you are told you
are facing sixty years—ten years per count—it would
not do any harm to bring some witnesses. They took his computers
away. That is against the text of the Extradition Treaty. It says
that they are not allowed to be taken until extradition is applied
for, but it was done.
Q35 Mr Streeter: Are you aware of
any conversations at high level between the British Government
and the American Government over this case?
Mrs Sharpe: None whatsoever.
Q36 Chairman: You have yourself asked
to see the Home Secretary; you have written to the Prime Minister;
you have written to the Prime Minister's wife, indeed, I understand.
Mrs Sharpe: Yes.
Q37 Chairman: Is there anything else
that you feel you can do other than place this now in front of
the Home Secretary?
Mrs Sharpe: I think it is really
up to our Government to do this.
Q38 Chairman: But you would like
to meet the Home Secretary, would you?
Mrs Sharpe: I would love to meet
him, because, I think, when you realise what someone has gone
through for so many years you are not just a figure, you realise
if it was your child how you would feel, but this treaty is in
my mind a betrayal of British citizens. I do not see why we are
at the bottom of the pile in regard to the rest of the world.
It is wrong.
Q39 Chairman: Do you think that Parliament
itself ought to have been more aware of what it was doing when
it voted this treaty through?
Mrs Sharpe: Absolutely. It was
done under the Queen's Prerogative; it was done in secret. That
was wrong. No-one in Parliament knew the text of the treaty until
three months later. It was after 9/11—it was a very emotive
time. Everyone was told it was to be used primarily (or led to
believe) for terrorism. It was rushed through and done in secret,
and, of course, that is wrong because it affects every British
citizen and, if this happens, it is going to escalate. Sixteen
year old kids who go on the computer—if you have got a computer
in the room it is like a magic door, they are by human nature
explorers and they are trying to find out so many things. Are
we going to start prosecuting all our children and trying to extradite
them? It is not the way to handle it. It just is not.
Q40 Chairman: Mrs Sharpe, Mr Lever,
Mr Cooper, thank you very much for coming to give evidence to
us today. We are going to hear from the Home Secretary now. I
wonder whether you could now leave the dais and join your member
of Parliament, Mr Burrowes, who has been very supportive.
Mrs Sharpe: Thank you for allowing
us the time to talk.
1 Witness's Note on the decision to refuse to allow
Mr McKinnon to appeal to the new U.K Supreme Court: a precedent
had been set by Ian Norris being allowed to go to the U.K Supreme
Court under the same point of law and Lord Justice Stanley Burton
had already said in the court hearing that Gary had more rights
than Ian Norris under this same point of law. Back
2
Witness's Note: Gary believed in the conspiracy theory
that 9/11 was an inside job and he left a cyber note saying he
believed that it was no accident there was a stand down after
9/11. Gary could not understand why no fighter jets were sent
up to intercept the planes that had flown of course for hours,
despite protocol that fighter jets should be sent up within minutes
of a plane flying off course and all the more so when one plane
which had flown off course for hours was heading towards the Pentagon. Back
| 
