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"manifestly unsatisfactory in the extreme"
On the question of the medical evidence, Professor Turk's diagnosis and opinions were handed to me by the hon. Member for Tiverton and Honiton (Angela Browning), who is sitting next to the hon. Gentleman. I stopped the clock to look at that diagnosis and those opinions very thoroughly and carefully, but they do not raise any issues that are materially, let alone fundamentally, different from those considered by Professor Baron-Cohen and Dr. Berney in the reports that were before the High Court in June 2009.
"does not approach Article 3 severity",
and the hon. Gentleman asked which conditions did. Lord Justice Burnton pointed out a whole series of decisions in cases involving people with bipolar disorder, and people with other very serious medical conditions indeed-conditions that many would say were much more serious than the medical condition of Gary McKinnon. Those cases did not reach article 3 severity. Difficult though the decision is, I have no menu of
options to choose from; there is either a breach of article 3 of the European declaration of human rights or there is not. My view is that there is not. That can be challenged in the courts.
Damian Green (Ashford) (Con): Throughout this wretched process, and again today, the Home Secretary has sought to minimise the amount of discretion that he has. He told the McKinnon family, and said again today, that the only issue that he could consider was whether Gary McKinnon's human rights were being breached by his extradition. Of course I accept the Home Secretary's version of his powers, and I therefore ask him to consider some questions in that narrow context.
"influence and affect the US government by intimidation and coercion".
He allegedly hacked into US army computers and left messages attacking US foreign policy. Is that really intimidating or coercive to the US military? More to the point, does the Home Secretary seriously believe that that would be the action of a terrorist?
Secondly, does Mr. McKinnon really need to be extradited to stand trial? As the Home Secretary will have seen, there are reports that the Crown Prosecution Service wanted to prosecute Mr. McKinnon in this country for computer misuse, but that those efforts were blocked. Is that true? Thirdly, is it not a breach of his human rights to send a man with Asperger's and depression to face a possible 60-year sentence? The Home Secretary will have seen the opinion of one psychiatrist that that will amount to a death sentence. It is, of course, horribly ironic that it would be illegal to send someone to another country to face an explicit death sentence.
Fourthly, will the Home Secretary not accept that the imbalance in the Extradition Act 2003 means that a British citizen facing extradition has fewer human rights than a US citizen would have if the position were reversed? Baroness Scotland, the Government's Attorney-General, said in 2003:
"when we make extradition requests to the United States we shall need to submit sufficient evidence to establish 'probable cause'. That is a lower test than prima facie but a higher threshold than we ask of the United States"-[ Official Report, House of Lords, 16 December 2003; Vol. 655, c. 1063.]
Finally, does the Home Secretary not recognise that the Extradition Act 2003 was put in place to ensure that terrorists did not escape justice? It was never intended to deal with a case such as the one that we are discussing. Can he not see that his actions regarding Gary McKinnon have damaged this country's reputation, damaged relations between Britain and our most important ally and, most importantly, damaged a very vulnerable and sick young man?
I am pleased that the hon. Gentleman accepts the fact about the so-called discretion. My discretion-if the word is suitable-allows me to look at Gary McKinnon's case against the tests that are set
out in law. As it was after Gary McKinnon had been through the district court, the High Court, the House of Lords and the European Court of Human Rights that he was diagnosed as having Asperger's, that was a supervening diagnosis, which meant that the then Home Secretary had to look at the matter against the European declaration on human rights.
The hon. Gentleman talked about Gary McKinnon's offences. This is not a matter of my finding Gary McKinnon innocent or guilty. There are very serious charges against Mr. McKinnon-the hon. Gentleman does not contest that and neither, incidentally, does the hon. Member for Enfield, Southgate (Mr. Burrowes), Mr. McKinnon's constituency MP. They are serious charges and Mr. McKinnon has to answer those charges. The Director of Public Prosecutions has decided that that has to take place in the US. There is no further right of appeal-the High Court would not allow a judicial review. So we come to whether that breaches Gary McKinnon's human rights. All the legal cases quoted by Lord Justice Burnton relate to medical conditions and mental health conditions that are far worse than those that apply to Mr. McKinnon.
The hon. Member for Ashford (Damian Green) asked whether there is truth in the rumour that we were going to prosecute Mr. McKinnon in the UK. No, there is no truth in that rumour. All the actions in this case are clear for anyone to see from the time Mr. McKinnon was charged onwards through all the processes of the law and then through the processes of the law again.
The hon. Gentleman talked, once again, about an imbalance between the level of evidence that the US must apply to the UK in order to get someone extradited and the evidence that we must put before the US courts. He said that there is an imbalance between probable cause and reasonable suspicion. I pointed out that that is academic in the case of Mr. McKinnon because he has admitted the charges. However, members of both main Opposition parties have argued about this point. That argument was made in 2003, when the treaty was being concluded. What has happened since? In how many cases have we failed to get extradition from the US? None. Zilch. Nil. None whatsoever. Every case we have made to the US using probable cause has been successful. In contrast, there are seven cases in which the US has sought extradition from this country that are still held up in the system.
The hon. Gentleman said that my decision damages relationships between this country and the US. That is a bizarre interpretation given the serious nature of these crimes and the fact that America, a friendly state with a mature democratic judicial system, wants to extradite Gary McKinnon to face trial. The interpretation, were that to affect our relationship with the US in any way, should be the other way around.
Chris Huhne (Eastleigh) (LD):
The Home Secretary is, in my view, a very brave man to hold out his judgment of the medical condition-and of the worsening of the medical condition-of Gary McKinnon against such overwhelming evidence as we have heard from the hon. Member for Enfield, Southgate (Mr. Burrowes). Gary McKinnon is a vulnerable British citizen who has become more vulnerable and whose interests are being ignored
in favour of an unequal treaty with the United States. Nobody contests that he has Asperger's or that that condition has been diagnosed since the beginning of the process and has got substantially worse. That alone should be enough to merit some compassion for his condition and mitigation of the penalty for a crime that he admits, as the Home Secretary knows.
Does the Home Secretary recognise that the clear risks to Mr. McKinnon's health and even life have increased since the beginning of the process and will increase further if he is not tried here but is extradited? Does he recognise from the additional medical evidence that the problems faced by Gary McKinnon are more substantial than they were at the beginning? Does that risk not worry him, particularly given the fine balance that he has to strike in deciding when there is a breach of someone's human rights?
May I also ask whether the Prime Minister has considered this case? Will the Government now put the interests of justice for an increasingly vulnerable British citizen ahead of their relations with a foreign Government? Is the Home Secretary prepared to accept the real risk that he will have the life of a man on his hands?
Alan Johnson: I appreciate the hon. Member's concern. He came to see me with the right hon. Member for Haltemprice and Howden (David Davis) and my right hon. Friend the Member for Oldham, West and Royton (Mr. Meacher) in the summer, and we discussed this issue, as I am willing to do on every occasion. I accept the vulnerability of Gary McKinnon, as I accept the vulnerability in many cases that go through the courts and in which a decision on extradition has to be taken. I note that I have been called spineless and a brave man within five minutes.
I do not argue that these decisions do not need very careful contemplation, and I have thought about this one long and hard. I have looked at every single word submitted by Gary McKinnon's lawyers on the evidence of his medical condition. As I have said previously, that is not materially different from the evidence that was before Lord Justice Burnton in June and on which he made his pronouncement on 30 July. I quoted Lord Justice Burnton in my statement saying that he accepts that there is a risk of suicide, and that is a heavy burden on any Home Secretary's shoulders-as the hon. Member for Eastleigh (Chris Huhne) said in his final point. Nevertheless, my job is to uphold the law-to look at the European convention on human rights and decide whether article 3 is being breached in this case. My decision, based on all the evidence, is that article 3 rights are not being breached in the case of Gary McKinnon. Hon. Members may disagree, but I hope they do not think that that decision was made in any other circumstances than after the most careful contemplation.
Mr. Speaker: Order. No fewer than 23 Members are seeking to catch my eye. Naturally, I am keen to accommodate as many as a reasonable allocation of time will allow, but I appeal to each right hon. and hon. Member to ask a single, short supplementary question and, of course, to the Home Secretary to provide an economical reply.
Liz Blackman (Erewash) (Lab): My right hon. Friend mentioned a brief conversation that he had with the US authorities about how Gary McKinnon might be supported, should he be extradited. Could he flesh that out in a great deal more detail? Unconnected, but a point worth making, is the fact that many adults with Asperger's are never diagnosed, and a late diagnosis is not unusual.
Alan Johnson: My hon. Friend is right in her final comment. It is not unusual to have a late diagnosis. I did not mention any conversation with the US authorities. The question of bail would be entirely for the independent judiciary. If Gary McKinnon were extradited and if he were convicted-and all the evidence would have to be placed before a court-and if he were given a custodial sentence, the procedure under the transfer of sentenced persons convention would kick in. As I said in the letter to Gary McKinnon's mother and to his lawyers, we stand ready to implement that procedure at the appropriate time. That time is a long way away, because at the moment Gary McKinnon has not been convicted of anything.
Angela Browning (Tiverton and Honiton) (Con): I hope that the Home Secretary will accept that Gary McKinnon was born with Asperger's syndrome, and that will have contributed to his behaviour with the computers in the first place. It would help Gary McKinnon's state of mind if he knew now that if he were to receive a custodial sentence, he would serve it in the UK. Instead of the Home Secretary saying that that is down the track, if he would make it clear now that the Home Office would support that, it might help Gary McKinnon's state of mind.
Alan Johnson: I appreciate what the hon. Lady says, and much of the medical evidence was about Gary McKinnon's fear of serving time in a US jail. The problem at the moment is that the case is still in the judicial process. Gary McKinnon's lawyers still have an opportunity to appeal, not only for judicial review of my decision, but to the courts. I do not want to get into that level of detail. It must be right, just as with other extradition cases, that we let matters unfold and cross each appropriate bridge when we come to it. I am well aware of the concerns that the hon. Lady expresses. At the moment, we have an extradition case, not a trial or a conviction.
Keith Vaz (Leicester, East) (Lab): I have respect for the Home Secretary, but I believe that he has made the wrong decision for the wrong reasons. He gave evidence to the Home Affairs Committee, and I wrote to him expressing the Committee's unanimous view that his scope for discretion was wider. We are prepared to publish our legal advice; will he do the same? If fresh evidence comes before him, is he prepared to do what he did on a previous occasion, and for which we were grateful, and stop the clock and consider that evidence?
My right hon. Friend, in his Select Committee report, did not unearth a different view on whether I had discretion. Two lawyers from Matrix
Chambers gave evidence to the Committee and said exactly what I have said today: if there were a supervening diagnosis-it was not in these words, but this is the gist of what they said-I, like my predecessor, have the discretion, when all the court cases are finished and if something new arises, to decide whether the case meets article 3 severity. That is what Matrix Chambers said in its evidence to the Committee, and that is what I am saying, so there is absolutely no difference between us.
I think we have established, with the very honest remarks of the hon. Member for Ashford, that actually we all accept where my discretion-if we want to call it that-lies. There might arise fresh evidence. When the hon. Member for Tiverton and Honiton gave me the evidence on Gary McKinnon and what was said to be his worsening condition, of course I looked at the matter again. That is what my predecessor did as well. Incidentally, we have now had three Home Secretaries making the same decision. This is a matter for the Home Secretary, of course, but I believe that anyone in my position would have come to the same conclusion, irrespective of how difficult it might be.
Mrs. Cheryl Gillan (Chesham and Amersham) (Con): This year, the House passed a groundbreaking Act on autism, which was the first ever disability-specific legislation and recognised the unique nature and needs of people diagnosed with autism. How can a Government on the one hand legislate to recognise that unique condition, but on the other discount the expert medical advice reinforcing the point that, in this case, extradition is wholly inappropriate and potentially lethal to Gary? Quite frankly, is there no logic, justice or humanity left in the Government?
Alan Johnson: My right hon. Friend the Member for Sheffield, Brightside (Mr. Blunkett), who holds a position within the National Autistic Society, previously made it clear to those who were lobbying him over this case that he appreciated the problems of autism. I, too, appreciate them. I was Secretary of State for Health and understand completely why that legislation was passed. However, the hon. Lady is too sensible and intelligent to suggest, evenly remotely, that because someone has autism, they do not have to face the consequences of their-alleged-offences. That is not the case. As I have mentioned, we have before us the case of someone with bipolar disorder fighting a similar case, and there are other cases of people with very serious medical complaints. We have to look at Gary McKinnon's case with compassion and test it through the courts. We have done that, and I believe our decision is the right one.
Kate Hoey (Vauxhall) (Lab):
Does the Home Secretary not appreciate that the vast majority of the public, listening to his fine words, will not understand a word of the way in which he has used one bit of an article and another bit of an article? They will see the Government not standing up for a British citizen in a very difficult situation-not someone who does not want to be tried, but someone who wants to be tried in this country. Will they not regard the French Government's treatment of someone such as Roman Polanski, who is not even in their country, as the way in which citizens should be stood up for? Will the Home Secretary not see that,
even at this stage, he could find a way around this if he really wanted to prevent Gary McKinnon from being extradited?
Alan Johnson: My hon. Friend is wrong to say that I am trying to take one bit from here and one bit from there. Those bits and pieces are the European convention on human rights-they are very important, are now part of our law through the Human Rights Act 1998 and are crucial. Cases have to be judged against it.
My hon. Friend states the opinion of the public as if she is the arbiter of public opinion. People in this country want to see a proper extradition that is fair and that not only allows us to bring criminals back from abroad-as we have done on many occasions, including from America-but allows other countries where offences are committed to have the same benefits.
In the case of America, I have already set out the clear views of the courts. It is not for me or any other politician to decide whether to prosecute. The Law Lord, Lord Justice Lloyd said in the other place that it is absolutely wrong for any politician to decide whether to prosecute-and, by definition, where to prosecute-any individual. That was not a matter for me; it was a matter for the prosecuting authorities. They have decided that Gary McKinnon should stand trial in America.
Mr. John Randall (Uxbridge) (Con): Will the Home Secretary acquaint himself with the case of a young man in the London borough of Hillingdon who suffered from the same condition as Gary McKinnon and who hacked into BT's system? He was arrested, but BT decided to drop the charges and instead invited him to work on its security. He is now successfully undertaking a degree in IT. Perhaps the way forward might be to try to persuade the US authorities to drop the charges, in order for Gary McKinnon's undoubted skills to be used for good instead of bad.
Alan Johnson: All that can come out at the trial. As for whether that case was serious or trivial, all I know is that no one has argued that the criminal charges in this case are not very serious. It happened just after the 3,000 deaths on 9/11, at a time when America was particularly sensitive. The Americans will decide, but the decision of the public prosecutors in this country is that Gary McKinnon should be tried in America. That has been upheld in the courts; indeed, the High Court refused to give a judicial review and it was aware of all the other cases, including the one that the hon. Gentleman mentioned. Nevertheless, the court decided that America is the proper place for Gary McKinnon to be tried. As for his defence at that trial, I am sure that the hon. Gentleman's comments will form part of it.
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