Correspondence from the Home Secretary
to the Chair of the Committee
Thank you for your letter to the Prime Minister of
20 July in which you asked about the case of Gary McKinnon. The
Prime Minister replied on 13 September, indicating that I would
follow up with a fuller account of how matters stand in relation
to the USA's request for the extradition of Gary McKinnon. I am
sorry not to have written sooner but I delayed doing so because
in the meantime you asked at Business Questions in September about
the extradition review, and I wanted to reply fully to that query
as well.
As you will know, the membership of the review panel
was announced in a press notice on 14 October.
To answer your questions about the case of Mr McKinnon
first. I know that you and the Home Affairs Committee have a close
and long-standing interest in the case, of course, and there is
no need to rehearse its lengthy procedural history here. One recurring
aspect, however, has been a suggestion that Mr McKinnon should
instead be brought to trial here in the UK.
Whilst I understand that point, it is not one, however,
upon which I can comment - for, as the High Court has affirmed,
this is exclusively the province of the independent Director of
Public Prosecutions (DPP). The court set out at length in its
July 2009 judgment - copy enclosed for ease of reference - why
the DPP's decision not to institute domestic criminal proceedings
could not be faulted.
In the same judgment, the court found on the information
then available that the facts and circumstances of the case did
not approach the severity which would be required to support a
finding that extradition would be in breach of Mr McKinnon's human
rights. A further decision in November 2009 to uphold the order
for extradition, which was taken by my predecessor, was to have
been the subject in May of a judicial review (JR) hearing.
I was anxious, however, to have my own opportunity
to consider the case. I therefore sought and obtained an adjournment
of that JR and indicated my readiness to receive further representations
from those acting for Mr McKinnon. Those representations were
submitted in June and are now receiving careful consideration.
They include psychiatric reports attesting to a heightened risk
of suicide were he to be extradited.
When I met the Committee on 12 July, I referred to
the strict legal framework within which my decision will fall
to be taken. The general position is that where, as here, all
avenues of appeal under the Extradition Act 2003 have been exhausted,
the UK is under an absolute duty to proceed with the person's
extradition, this is in conformity with our international obligations.
I should say that we expect no less in return from
our extradition partners. The issue in Mr McKinnon's case is that
- under the Human Rights Act 1998 - I would be under an equally
absolute duty to halt extradition if (but only if) there had been
a material change of circumstances since the conclusion of proceedings
under the 2003 Act, such as to render extradition incompatible
with Mr McKinnon's human rights. It is a strict and legalistic
test which does not permit the exercise of any wider discretion.
Paragraphs 62 et seq of the July 2009 judgment deal more fully
with the applicable test. Let me reassure you that I share the
common concern to see a conclusion to Mr McKinnon's case and,
within the framework described, my aim is to decide the case as
quickly as is consistent with looking fairly and properly at all
relevant matters.
Turning now to the question you asked about the extradition
review at Business Questions on 16 September, in which you sought
a debate on the review in Government time. As I mentioned above,
on 14 October we announced that Sir Scott Baker would chair a
panel of independent experts who will carefully examine the UK's
extradition arrangements. Sir Scott is being supported by two
lawyers with expertise in extradition matters, David Perry QC
and Anand Doobay, and will report back in the Summer 2011.
In the meantime it would in my view be inappropriate
to debate the matter further. We recognise that a number of concerns
have been raised in recent years regarding the UK's extradition
arrangements and it is important that we afford the panel time
to carefully consider these issues and reach an independent view
as to what recommendations they will make to the Coalition Government
11 November 2010
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