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|Judgments - Mckinnon V Government of The United States of America and Another
HOUSE OF LORDS
 UKHL 59
on appeal from: EWHC (Admin) 762
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
McKinnon (Appellant) v Government of the United States of America (Respondents) and another
Lord Scott of Foscote
Lord Phillips of Worth Matravers
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Lord Neuberger of Abbotsbury
David Pannick QC
(Instructed by Kaim Todner LLP)
Clare Montgomery QC
(Instructed by Crown Prosecution Service)
Edward Fitzgerald QC
(Instructed by Liberty)
16 JUNE 2008
WEDNESDAY 30 JULY 2008
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
McKinnon (Appellant) v Government of the United States of America (Respondents) and another
 UKHL 59
LORD SCOTT OF FOSCOTE
1. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Brown of Eaton-under Heywood and for the reasons he gives, with which I am in full agreement, I would dismiss this appeal.
LORD PHILLIPS OF WORTH MATRAVERS
2. I have had the benefit of reading in draft the speech of my noble and learned friend, Lord Brown of Eaton-under-Heywood For the reasons that he gives, I too would dismiss this appeal.
BARONESS HALE OF RICHMOND
3. For the reasons given by my noble and learned friend, Lord Brown of Eaton-under-Heywood, with which I entirely agree, I too would dismiss this appeal. The answer to the certified question is not in this case'.
LORD BROWN OF EATON-UNDER-HEYWOOD
4. The appellant is a 42 year old British citizen, an unemployed computer systems administrator. On 7 October 2004 the respondent government requested his extradition to the United States alleging that between 1 February 2001 and 19 March 2002 he had gained unauthorised access to 97 US Government computers from his home computer in London.
5. The extradition request had been preceded by:
(i) Requests by the respondent government to the UK in March 2002 for mutual legal assistance pursuant to which the appellants home computer was seized and he was twice interviewed under caution.
(ii) Indictments returned against the appellant by Grand Juries respectively of the District of New Jersey on 31 October 2002 and the Eastern District of Virginia on 12 November 2002.
(iii) Plea-bargaining discussions between November 2002 and April 2003 during which the US prosecutors indicated to the appellants legal representatives what attitude they would take depending upon whether he went to the US voluntarily and pleaded guilty or instead contested extradition and the charges against him. The discussion involved the particular charges he would face and the sentence he could expect and in addition his prospects of repatriation pursuant to the European Convention on the Transfer of Sentenced Persons 1983 (ETS 112 of 21 March
1983) to which the US is a party.
6. The US has been designated a category 2 territory under section 69 of the Extradition Act 2003 (the Act) so that part 2 of the Act applies to the present proceedings. On 10 May 2006 District Judge Evans in the Bow Street Magistrates Court sent the appellants case to the Secretary of State to decide whether the appellant should be extradited and on 4 July 2006 the Secretary of State ordered the appellants extradition.
7. The appellant appealed against the decisions both of the District Judge and of the Secretary of State to the Divisional Court (Maurice Kay LJ and Goldring J) which on 3 April 2007 dismissed both appeals:  EWHC 762 (Admin). Two points of law, however, were certified by the court under section 114(4) of the Act as being of general public importance and on 11 October 2007 the House granted leave to appeal in respect of the following one of them:
Is it an abuse of process of extradition proceedings, such that the proceedings should be stayed, and/or an unjustified interference with the defendants human rights, for the requesting state to engage in plea bargaining, including a threat to the defendant that, unless he agrees to be extradited, repatriation to the United Kingdom to serve any sentence imposed in the requesting state will not be supported by the prosecuting authority in the requesting state?
8. Pursuant to section 87 of the Act the District Judge had to decide whether the appellants extradition would be compatible with his Convention rights under the Human Rights Act 1998 and, if not, to discharge him. The District Judge also had jurisdiction to consider whether the extradition proceedings constituted an abuse of process so as to protect the integrity of the statutory regime, the Secretary of State having no general discretion to refuse extradition. So much was stated by Laws LJ in the Divisional Court in R (Bermingham and Others) v Director of the Serious Fraud Office  QB 727, para 97 and by Lord Phillips of Worth Matravers CJ in R (Government of the USA) v Bow Street Magistrates Court  1 WLR 1157, paras 82-83. What was not expressly stated in these decisions but was necessarily implicit was that the abuse of process for consideration was such as to require the extradition proceedings to be permanently stayed and the accused discharged.
9. It is common ground on the present appeal that any rights the appellant may have under articles 5(4) and 6 of the Convention add nothing to his abuse of process claim. Accordingly the essential question for your Lordships determination is whether the requesting states engage[ment] in plea bargaining, including a threat to the defendant that, unless he agrees to be extradited, repatriation to the United Kingdom to serve any sentence imposed in the requesting state will not be supported by the prosecuting authority in the requesting state constitutes an abuse of process requiring the defendants discharge from the extradition proceedings.
10. With those few introductory paragraphs it is necessary to turn in a little detail to the facts of the case.
The appellants alleged criminality
11. Using his home computer the appellant, through the internet, identified US Government network computers with an open Microsoft Windows connection and from those extracted the identities of certain administrative accounts and associated passwords. Having gained access to those accounts he installed unauthorised remote access and administrative software called remotely anywhere that enabled him to access and alter data upon the American computers at any time and without detection by virtue of the programme masquerading as a Windows operating system. Once remotely anywhere was installed, he then installed software facilitating both further compromises to the computers and also the concealment of his own activities. Using this software he was able to scan over 73,000 US Government computers for other computers and networks susceptible to similar compromise. He was thus able to lever himself from network to network and into a number of significant Government computers in different parts of the USA.
12. The 97 computers the appellant accessed were: 53 army computers, including computers based in Virginia and Washington that control the armys military district of Washington network and are used in furtherance of national defence and security; 26 navy computers, including US Naval Weapons Station Earle, New Jersey, which was responsible for replenishing munitions and supplies for the deployed Atlantic fleet; 16 NASA computers; one Department of Defense computer; and one US Air Force computer.
13. Having gained access to these computers the appellant deleted data from them including critical operating system files from nine computers, the deletion of which shut down the entire US Armys Military District of Washington network of over 2000 computers for 24 hours, significantly disrupting Governmental functions; 2,455 user accounts on a US Army computer that controlled access to an Army computer network, causing these computers to reboot and become inoperable; and logs from computers at US Naval Weapons Station Earle, one of which was used for monitoring the identity, location, physical condition, staffing and battle readiness of Navy ships, deletion of these files rendering the Bases entire network of over 300 computers inoperable at a critical time immediately following 11 September 2001 and thereafter leaving the network vulnerable to other intruders.
14. The appellant also copied data and files onto his own computers, including operating system files containing account names and encrypted passwords from 22 computers comprising: 189 files from US Army computers, 35 files from US Navy computers (including some 950 passwords from server computers at Naval Weapons Station Earle); and six files from NASA computers.
15. The appellants conduct was alleged to be intentional and calculated to influence the US Government by intimidation and coercion. It damaged computers by impairing their integrity, availability and operation of programmes, systems, information and data, rendering them unreliable. The cost of repair was alleged to total over $700,000.
16. Analysis of the appellants home computer confirmed these allegations. During his interviews under caution, moreover, he admitted responsibility (although not that he had actually caused damage). He stated that his targets were high level US Army, Navy and Air Force computers and that his ultimate goal was to gain access to the US military classified information network. He admitted leaving a note on one army computer reading:
US foreign policy is akin to government-sponsored terrorism these days . . . It was not a mistake that there was a huge security stand down on September 11 last year . . . I am SOLO. I will continue to disrupt at the highest levels . . .
The plea-bargaining process (including discussion of repatriation)
17. In August 2002 the appellant instructed Ms Karen Todner, senior partner of Kaim Todner, to act as his solicitor. In November 2002 Ms Todner learned that an American prosecutor, Scott Stein, had applied for a formal indictment against the appellant and telephoned him to register her interest. There followed a number of communications during which Mr Stein indicated how much better a deal would be available to the appellant if he went voluntarily to the United States and pleaded guilty than if he contested extradition and denied the charges. Some of these communications were by telephone, some in writing, others at meetings with Mr Ed Gibson, the FBI legal attaché at the American Embassy in London. It is sufficient to set out the substance of what was said at the final such meeting on 14 April 2003, attended by Ms Todner and Mr Edmund Lawson QC for the appellant, and by Mr Stein, his superior Mr Hanly, and Mr Gibson as representatives of the US Government. I take this from a recent witness statement made by Mr Lawson dated 6 June 2008. (A broadly similar account taken from statements made by Ms Todner is set out in the Divisional Courts judgment which also contains a detailed account of the earlier communications.)
18. Mr Stein confirmed that he was authorised to offer the appellant a deal in return for not contesting extradition and for agreeing to plead guilty to two of the counts laid against him of fraud and related activity in connection with computers". On this basis it was likely that a sentence of 3-4 years (more precisely 37-46 months), probably at the shorter end of that bracket, would be passed and that after serving 6-12 months in the US, the appellant would be repatriated to complete his sentence in the UK. In this event his release date would be determined by reference to the UKs remission rules namely, in the case of a sentence not exceeding four years, release at the discretion of the parole board after serving half the nominal sentence, release as of right at the two-thirds point. On that basis, he might serve a total of only some eighteen months to two years.
19. The predicted sentence of 3-4 years was based upon sentencing guidelines themselves based upon a points system. The prosecution would recommend to the court a particular points level which the court would be likely to accept. Similarly the prosecutor would recommend to the section of the US Department of Justice responsible for administering the Convention on the Transfer of Sentenced Persons that the appellant be transferred and this recommendation too was in practice likely to be accepted.
20. If, however, the appellant chose not to cooperate, and were then extradited and convicted, he might expect to receive a sentence of 8-10 years, possibly longer, and would not be repatriated to the UK for any part of it. He would accordingly serve the whole sentence in a US prison (possibly high security) with at best some 15% remission.
21. Mr Lawson clearly recalls the prospect of repatriation being stated to depend upon the appellants application for transfer being supported by the prosecution. If the support were withheld as it would be if extradition was contested, there was said to be no prospect of repatriation, a refusal by the Department of Justice being unreviewable in the US courts.
22. The proposed deal was conditional upon the appellant entering into a form of Plea Agreement, a lengthy document including the provision in para 4 that:
the defendant is aware that the defendants sentence will be imposed in accordance with the Sentencing Guidelines and Policy Statements. The defendant is aware that the Court has jurisdiction and authority to impose any sentence within the statutory maximum set for the offense (s) to which the defendant pleads guilty. The defendant is aware that the Court has not yet determined a sentence. The defendant is also aware that any estimate of the probable sentencing range under the sentencing guidelines that the defendant may have received from the defendants counsel, the United States, or the probation office, is a prediction, not a promise, and is not binding on the United States, the probation office, or the Court. The United States makes no promise or representation concerning what sentence the defendant will receive, and the defendant cannot withdraw a guilty plea based upon the actual sentence.
The Plea Agreement included a further term in para 12 that the US Attorneys Offices respectively for the Eastern District of Virginia and the District of New Jersey will not oppose the defendants application to transfer any sentence imposed by the Court made pursuant to the Council of Europe Convention".
23. Subsequent to the Divisional Courts judgment but prior to Mr Lawsons statement an affidavit was sworn by Robert Wiechering on behalf of the US Attorneys Offices for both districts stating that they will not oppose any prisoner transfer application that may be made by Gary McKinnon (if extradited and convicted) based, in whole or in part, on his refusal to waive or consent to extradition from the United Kingdom.
24. Following the meeting of 14 April 2003 Ms Todner took advice from an American defense lawyer and, subsequently, the appellant declined the deal".
25. Before moving from this section of the judgment it is convenient to take brief note of the essential reasons why, under the sentencing guidelines, the predicted sentences respectively on a plea of guilty and on conviction were so widely different. Principally this was because of the different bases upon which the prosecutor proposed to put the case. As was made clear, upon a plea of guilty, the prosecutor was prepared to put the damage resulting from the appellants actions (the extent of the damage being of substantial relevance to the points calculation) in a lower bracket ($400,000 - $1m) than they believed they could prove. The lower figure is based merely on calculating the hours it took employees to conduct a damage assessment and to restore the compromised computer systems, multiplying the hours by the employees hourly wage. Nothing was included for the further losses caused through the inability to access the computers whilst the networks were being assessed for damage and repair. Furthermore, on a plea of guilty the prosecution were prepared to overlook the disruption to US Government functions based on the damage to the military District of Washington network and the Earle Weapons Station. They would not pursue enhancements of the sentence for significantly endangering national security and for substantial non-monetary harm, both provided for under the points system. In addition, of course, the sentence would be reduced by acceptance of responsibility over and above the reduction attracted merely by entering a timely guilty plea.
The course of proceedings
26. In August and September 2004, following the appellants refusal of the deal", the respective Districts of Virginia and New Jersey issued warrants for the appellants arrest and, as stated, on 7 October 2004 the respondents submitted an extradition request to the Secretary of State. The request was certified by the Secretary of State under section 70 of the Act and a warrant was issued by Bow Street Magistrates Court under section 71. On 7 June 2005 the appellant was arrested under section 72 and the following day appeared before the Court. The extradition hearing commenced on 27 July 2005 and continued on 14 and 15 February and 12 April 2006. The District Judge, as stated, sent the case to the Secretary of State on 10 May 2006 and on 4 July 2006 the Secretary of State informed the appellant under section 100(1) of the Act that he had made the order for extradition. Both claims were then appealed to the Divisional Court respectively under sections 103 and 108 of the Act.
27. It is unnecessary for present purposes to relate the various points raised by the appellant either before the District Judge, or, for the most part, before the Divisional Court. Suffice it to note that the abuse of process argument, the subject of the certified question, was raised for the first time before the Divisional Court, the appellants legal advisers having previously felt bound by the US authorities stipulation that, if the matter proceeded to extradition, the discussions were to be treated as confidential and off the record. The argument failed before the Divisional Court and is now repeated, this time with the support of Liberty as intervener, before Your Lordships.
The appellants argument
28. The appellants main argument focuses on the wide disparity between on the one hand the predicted likely outcome if the appellant cooperated with the US authoritiesa sentence of 3-4 years of which 6-12 months would be served in a low security prison in the US after which there were good prospects of repatriation with the expectation of release after serving only half the sentenceand on the other hand the threatened likely outcome if the appellant refused to cooperatea sentence of 8-10 years or more in a US high security prison with remission of only 15%. Such a disparity, it is submitted, is disproportionate and subjected the appellant to impermissible pressure to surrender his legal rights, particularly his right to contest extradition. Pressure of this kind, it is submitted, indeed plea bargaining generally, runs flatly counter to the principle of English law recently clarified in the judgment of the five-judge Court of Appeal delivered by Lord Woolf CJ in R v Goodyear  1 WLR 2532: essentially that a judge may respond to a defendants request that he be told the maximum sentence that would be imposed on a plea of guilty but is not to volunteer such information unasked nor to indicate what sentence might be passed on the defendants conviction by the jury. As the Court stated at para 54: With some defendants at any rate, the very process of comparing the two alternatives would create pressure to tender a guilty plea.
29. Where, as here, the respondent government is seeking the assistance of the English courts to extradite an accused, it must, submits the appellant, comply with the legal principles of this jurisdiction. True it is that he has in fact resisted the pressure improperly put upon him but that, he submits, is no answer to the contention that it constituted an abuse of process: it was calculated to interfere with the extradition proceedings.
30. For this submission and indeed more generally in support of the abuse of process argument the appellant relies principally upon the judgment of the Supreme Court of Canada in USA v Cobb  1 SCR 587. The USA there had indicted a large number of defendants, including the two Canadian appellants, on mail fraud charges. Many had submitted voluntarily to the Court in Pennsylvania and on sentencing one of them the trial judge had said (p 593):
I want you to believe me that as to those people who don't come in and cooperate and if we get them extradited and they are found guilty, as far as I am concerned they are going to get the absolute maximum jail sentence that the law permits me to give.
About a week before the Canadian extradition hearing the American prosecuting attorney was interviewed on Canadian television and said:
I have told some of these individuals, look, you can come down and you can put this behind you by serving your time in prison and making restitution to the victims, or you can wind up serving a great deal longer sentence under much more stringent conditions and describe those conditions to them.
Asked by the interviewer How would you describe those conditions?", the attorney replied: You are going to be the boyfriend of a very bad man if you wait out your extradition". That was understood by the Court to mean that they would be subject to homosexual rape. Asked then: And does that have much of an impact on these people?", the attorney answered: Well, out of the 89 people we have indicted so far, approximately 55 of them have said, We give up'".
31. In allowing the appeal and reinstating the extradition judges order staying the extradition process, Arbour J, giving the judgment of the Supreme Court, said, at paragraphs 52 and 53:
By placing undue pressure on Canadian citizens to forego due legal process in Canada, the foreign state has disentitled itself from pursuing its recourse before the courts and attempting to show why extradition should legally proceed. The intimidation bore directly upon the very proceedings before the extradition judge . . . [The judge] was also correct in concluding as he did that this was one of the clearest of cases where to proceed further with the extradition hearing would violate those fundamental principles of justice which underlie the communitys sense of fair play and decency (Keyowski  1 SCR 657, 658-659), since the requesting state in the proceedings, represented by the Attorney General of Canada, had not repudiated the statements of some of its officials that an unconscionable price would be paid by the appellants for having insisted on exercising their rights under Canadian law.
32. Arbour J had earlier (at para 50) dealt with the argument based on the appellants not in fact having been dissuaded from exercising their procedural rights:
I find no merit in this argument. It may very well be that the threats of the severe and illegal consequences that may follow their resistance to extradition may have made the appellants more, not less, determined to resist their surrender. Frankly, this would have been quite understandable. The abuse of process here consists in the attempt to interfere with the due process of the court. The success or failure of that interference is immaterial.