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Theresa May is preparing to abandon efforts to rewrite the Government's extradition treaty with the US despite claims that it is unfair to British citizens.
The Home Secretary is understood to have concluded that altering the way that the law is written would have little practical effect.
Insiders say that she also accepts that the treaty, which was introduced in 2003, is not unbalanced and that critics' accusations about flaws in the legislation are largely misplaced.
Mrs May's decision follows the publication last year of a government-commissioned report on extradition law by the former Court of Appeal judge Sir Scott Baker.
It found that the "widespread perception" that arrangements with the US were unfair was "not justified" by the facts.
Despite the conclusions, a series of high-profile cases, including that of London computer hacker Gary McKinnon, have continued to prompt calls for reform.
The Home Secretary, whose party joined criticism of the legislation before the election, has concluded, however, that Sir Scott's findings have shown that the law does not need significant changes.
Sources say that ministers acknowledge that they will have to "take a few hits" politically because of the decision, but that they feel bound to accept the former judge's verdict because of the detailed way in which he conducted his analysis of the law.
The most crucial finding in Sir Scott's report was that although different language is used in the legal tests applied by British and American courts, the hurdle that prosecutors must clear to secure extradition is equally high in both countries.
He also pointed out that while the UK has refused extradition requests from the US, all British requests have been approved by the American authorities and that the overall numbers being extradited from this country were not disproportionately high.
Sir Scott also concluded that even if a "forum" test had been applied in British courts to decide whether suspects should be tried in the US, as supporters of reform want, none of the extraditions that have so far taken place would have been halted.
Mr McKinnon, 45, an Asperger's syndrome sufferer, is fighting extradition to the US over charges that he hacked Pentagon computers in 2002.
His legal team argues that his mental condition could lead to his suicide if he were sent to the US.
Reader views (31)
This situation smacks of American arrogance and face-saving. They will have spent far more on seeking extradition than the $700,000 which is reputed to have been the cost of repairing his 'damage'. We have no idea of how deeply the American hold over the UK is, but we can have a good stab judging from this case, the Richard O'Dwyer farce and the wording of the Extradition Act 2003. America is hell-bent on policing the world and "God help" anyone who defies the American elite.
The US has not even proven that Gary has done any damage at all. If it is true that he found documents supporting UFO existence or free energy (hear me out) then the largest super power in the world would do absolutely anything to keep it a secret and thus protecting their status. My point is that there is definitely, and blatantly something deeper than someone hacking into an unsecured network or two, or is Uncle Sam really that embarrassed?
- Simon, Coalville, Leicestershire, 13/02/2012 22:19
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Diana: Ultimately in British law, the Home Secretary MUST refuse extradition where human rights are engaged. Since 8th June 2010, she has been in receipt of copious (and unanimous) evidence to this effect. At present therefore, she is in breach of the law. And actually, she does need to be a clinician if she hopes to justify ignoring clinical advice.
It's very odd that you consider a person threatened with extradition when they demonstrably have committed no extradition offence is not a victim of injustice. May I suggest you acquaint yourself with the facts of the case before calling people deluded?
- Dan D, Chiswick, 19/01/2012 10:59
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Yet another glimmer hope turns into a blow for Gary Mckinnon, anyone would think they want him to commit suicide, this is noway to treat a guy who has been diagnosed with an autistic spectrum disorder Aspergers syndrome, when will they understand what they are doing is making hes life a misery its hard enough to live with aspergers, i think he should sue government for mental mind games and the stress hes been put through.
- Ryan, Enfield, 18/01/2012 22:26
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Dan: ultimately in British Law it is up to the Home Secretary to decide. Mrs May does not need to be a clinician, she's got a raft of legal advisers and is empowered to act in law as she thinks fit.
The many apologists who have tried to make McKinnon some sort of victim are deluded and have contributed hugely to the inordinate length of this sorry mess.
- Diana Johnson, London, UK, 17/01/2012 09:51
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Final word RESIGN , only honorable course for the Home ?Secretary.
- Alan, England Fed up with all our politicians, 17/01/2012 09:07
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Give him a new identity and let the Yanks find him.
- billy, London, 17/01/2012 04:02
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I am not sure if a lot of Brits know that the U.S constitution warrants that an accused (whose extradition is being sought) can attack and defend the evidence provided against him/her before being sent off to foreign lands. This is a general protection under the constitution. I don’t see this issue being raised. Instead, everyone is juggling the probable cause (what UK has to provide to Americans) v. “suspicion” (Americans have to provide the British before extraditing).
Yes, the British cannot intervene or change the American constitution, but surely the Americans knew this before entering into an extradition treaty. In a way, Americans don’t need any protection of forum or anything else for that matter, as that protection is available directly under the constitution.
Let’s admit, the British have been following American blindly for decades now. The bar to human rights under European commission in such cases is never ever met. Forget Aspergers, they extradited the old fellow who had cancer to American prison. Let’s not forget, there is no legal aid system in the U.S. The public defender is the closes you get to legal aid, who are mostly fresh law school graduates with very little experience compared to the seasoned aggressive prosecutors. 97% of the people charged with federal crime do plead guilty. The system punishes you viciously if you go to trial and lose.
Imagine, 3 years in prison if you plead or 40 years if you go to trial and lose. It doesn’t take a genius to ta
- John Shepherd, London, UK, 16/01/2012 22:39
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That's a strange thing to say, Diana, when Theresa May is in possession of five unanimous and compelling expert medical reports, including independent testimony from the country's (and the world's) most reknowned experts in the field - all of which demonstrate unequivocally that the Human Rights bar to extradition as specified by Justice Mitting in this case is more than met. You're not a fan of the law, I take it?
It's also peculiar and a bit improper that Ms May (not a clinician, as far as I know, and certainly with no training or experience in autism) has repeatedly chosen to ignore the advice of the National Autistic Society as regards the assessment of depression and suicide risk in ASD, which requires very specific training and expertise.
Highlighting as you have done, the developmental nature of autistic spectrum disorders such as Asperger's, and its fairly recent recognition by WHO, is actually very helpful in terms of addressing the ignorance of those who would argue that the relatively recent diagnosis of McKinnon should be viewed in any way as dubious.
- Dan D, Chiswick, 16/01/2012 21:33
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This is a horrific, absurd development. What we're seeing right now is a US attempt to establish global jurisdiction over alleged computer offences, regardless of where they're committed. This risk is falling heavily on autistic people such as Gary McKinnon, Salha Ahsan, and Ryan Cleary, and other such as Babar Ahmad and Richard O'Dwyer, none of whom have visited the US, whose alleged 'offences' occurred in the UK and who would be protected by a 'forum rule'. I find it frankly horrifying that British citizens are effectively subject to American jurisdiction the moment they connect to the Internet. America is not a world government and Britain should not be allowed to treat it as such.
- Andy, Nottingham, UK, 16/01/2012 21:25
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@ Dan D, Chiswick, 16/01/2012 18:38
The point is very simple: it looks like Theresa May has found the medical evidence and other, human rights data cited in McKinnon's defence does not stack up in law and the man will be extradited to face due process. I would agree with such a judgement as set out in Home Office lawyers' arguments despite the legions of apologists' protests in this long running saga.
- Diana Johnson, London, UK, 16/01/2012 21:00
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Hi Diana. I'm not sure what point you're trying to make. The RCPsych definitely does recognise Asperger's Syndrome. Both ICD-10 (psychiatric disorders) and DSM-IV (mental disorders) recognise and classify Asperger's as distinct from other autistic conditions. It's true they are classed as developmental disorders, rather than acquired ones, but I'm not sure what your point is. In any case, it's demonstrably untrue to say that these conditions are not psychiatric ones.
You can make whatever assumptions you like about the US Justice Department, but that's all they are, and incorrect ones at that. The disclosure of the evidence (review note three) and the forensic IT report presented to a packed court room in 2009 speak for themselves. You may also be interested to read Mark Ballard's award-winning article in Computer Weekly (available online) detailing how the government exaggerated the allegations.
Regardless of the very serious concerns about his treatment if extradited, extradition would not be lawful in this case, even under the current woefully unjust arrangements.
- Dan D, Chiswick, 16/01/2012 18:38
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In this case, the US are claiming that the hacker actions cost £70 million in damages.
Surely, until they produce evidence to this affect then a judge cannot make a clear decision.
Otherwise, we are opening the door to any foreign agency making unsubstatiated claims in order to extradite a suspect with dubious politcal motivations.
In this case it was quite obvious that McKinnon's action severely put the noses of US top Brass out of joint by pretty much sleep walking through their defences regardless of multi-billion dollar security spends they built their careers on.
- Hansel, London, 16/01/2012 17:29
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What an insult to democracy!
This pussilinimous regime makes me sick!
What will it take for these public servants to comprehend that WE do NOT endorse US-style justice in this country - neither the show trial of Aafia Siddiqui - kidnapped, raped, tortured and held incommunicado in a secret prison before receiving illegal 'extradition' (i.e. extraodinary rendition) to 83 years (minimum tariff) for what any fool could see was a framed charge of attempted murder. So, we in Britain, will we turn a blind eye to legalising this executive abuse or will stand for justice when Mckinnon, Ahmad and others are subject to this regime? In particular, the 'terror suspects' are most likely to be abused and we should not be so stupid to believe every allegation of terror levelled at an individual nor that the US system is fit for purpose when it comes to such cases. In the US politcal dissidenst are dealt with by life imprisonment, just like any tinpot dictatorship. We have an active choice to make, comply or avoid complicity in oppression.
- Ridwan Ahmad, London, England, 16/01/2012 17:25
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@ Dan D, Chiswick, 16/01/2012 15:41
The Royal College of Psychiatrists does not recognise Asperger's as a psychiatric - or 'mental' - illness, it's classed as part of the Autism Syndrome, an organic condition, along with the UN's World Health Organization's own classification.
I do not believe the US Justice Department acting on behalf of the Pentagon would have submitted data to the UK extradition process that is 'not only entirely unsubstantiated, but also very likely to be downright false'.
Theresa May should get on with the job and ensure arrangements for McKinnon's pre-trial custody are on a par with British standards. If he's found guilty there should be guarantees about his safety/security in the event of a custodial sentence.
- Diana Johnson, London, UK, 16/01/2012 16:43
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Diana Johnson - no-one is 'downplaying the gravity of McKinnon's alleged crimes' - if anything, quite the contrary in fact. The government (including Alan Johnson as Home Sec) were found to have *exaggerated* the allegations, in such a way as to mislead Parliament and the public. And let us not forget that the allegations of damage were found in the High Court to be not only entirely unsubstantiated, but also very likely to be downright false. In addition to which, it was found he deleted no critical files, and shut down nothing whatsoever. Allegations to the contrary are false.
And as for Asperger's, perhaps you could explain what it's doing in DSM IV if it's not a psychiatric condition? I'm guessing you don't know much about its comorbid diagnoses either...
- Dan D, Chiswick, 16/01/2012 15:41
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Cowardly Cameron continues to lick Obama's backside.
- Michael Boughton-Fox, Cambridge England, 16/01/2012 15:07
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Isn't it time for a public inquiry into what's gone on here? I thought the Home Secretary had promised to deal with this issue in a 'fair and proper' manner.
A U-turn that ignores all common sense and decency, ignores the facts, ignores the basic prinicples of justice, ignores the cabinet, ignores parliament, ignores the Select Committee and the Joint Committee, ignores the judiciary, and ignores the electorate, but follows the wishes of the US Ambassador and his senile patsy Baker - how is that 'fair and proper'?
What happened to fair, transparent and accountable government?
- Dan D, Chiswick, 16/01/2012 15:02
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Aperger's is not a 'mental illness' in psychiatric terms, it's an aspect of the Autism Syndrome organic condition, and was first diagnosed in 1994.
Downplaying the gravity of McKinnon's alleged crimes merely appeases the cyber-hacking brigade; some very serious security issues are being raised in this case and the accused's supposed mental frailty is being mirrored by an equally frail public comprehension of the US-UK extradition treaty.
Can't see the sympathy card getting much extended playtime in the Home Office.
- Diana Johnson, London, UK, 16/01/2012 14:47
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Anyone who thinks America is an ally of Britain is off their trolley. I remember how much we had to give up for aid in the last World War and they only came in when Japan attacked them.
- Alan, England Fed up with all our politicians, 16/01/2012 14:46
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Like just about everything else seeping out from this coalition government, they drop things the public wanted and were promised by the new government, quietly, whilst concentrating, almost exclusively on going forward hard with every privatisation plan they can get onto the statute books as quickly as possible.
I wonder why?
- Concerned Observer, Harrow, 16/01/2012 14:23
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Unbelieveable - The UK Government says it will never extradite to country's which have the Death Penalty or who carry out torture (Guantanamo) and yet , after promising pre-election to reform the 2003 Act - our two 'leaders' are now shafting their voters and their citizens once again.
The Extradition Act of 2003 is not designed for 'fairness' - its an extension of American attempts to spread its Empirical Tortorous regime.
Lords Bakers 'Extyradition' review is like the charges against Gary Mckinnon - a copy and paste job from Wikipedia. Time has come for a REAL review, one not 'influenced by American Ambassadors!
- cliffsull, Salisbury, Wiltshire, 16/01/2012 13:51
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It doesn't matter what a retired judge's report says about balance or what the US ambassador tries to tell our MPs or what the American Attorney General says. The simple fact remains If an extradition request is made by the UK for an American they have contestable evidence which they can test for validity in an american court. But, if an extradition request is made for a British Subject by the US not one drop of evidence is provided and the extradition is literally rubber stamped. Remove America's undeserved category 2 designation and the imbalance will disappear.
- luke, uk, 16/01/2012 13:32
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America awarded British people the status of 'fish in a barrel' and they are not inclined to give it up.
Justice Scott Baker only compared words not the actual practical procedure. Its as balanced as the Iraq war was legal.
- Stan, UK, 16/01/2012 13:22
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What this article forgets to mention is that the entire panel of the supposedly 'independent' Baker review were flown to America at the tax-payers' expense to be dictated to by US Attorney General Eric Holder. This was not an independent review, but a sham to serve the interests of a foreign power. It's an insult to our intelligence, as well as to our right to justice.
If imprisoning British citizens for seven years without trial, keeping someone on bail for a decade without charge, extraditing someone for conduct that is not a crime in this country, are considered 'fair', then I despair, I really do.
- Geoff, SW London, 16/01/2012 13:22
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Every senior member of the current government including the Attorney General and Solicitor General supported the forum amendment while in opposition. Parliament has passed a motion calling for the law to be changed. The Joint Committee for Human Rights have recommended the Treaty be amended. Over 141,000 people in this country signed a petition calling for the same as did 100 senior lawyers. The Home Affairs Select Committee is due to report soon and is expected to come to a similar conclusion.
Yet Theresa May now seeks to ignore all this and put her faith in Mr Baker who alone (along with the US ambassador) believes the Treaty is fair.
How enslaved has this country become to the US?
- Fahad Ansari, Birmingham, UK, 16/01/2012 13:18
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America is a master at euphemism "colateral damage" = hunderds of innocent people dead and in this case "reasonable suspicion" = no evidence
In an extradition situation Americans have a right to contest any evidence in an American court - British have no such right! in fact no evidence at is required to extradite a British Subject to America only an allegation.
there are none so blind as those who will not see.
- Stanley Burnton, london, 16/01/2012 13:05
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We elected MPs of all parties who together passed a motion asking Government for an extradition amendment bill to enact recommendations of the joint committee on human rights.
If government ignores this then we are moving towards a constitutional crisis of the people and parliament versus government and judiciary. This would challenge whether parliament is sovereign, whether government is accountable and whether we are still living in a democracy.
Extradition arrangements are unbalanced and unfair. The right principle is that British people are tried in British courts on charges that are offences in this country and not sent abroad for trials on charges that may not be covered under our own law.
This is a long-running saga in which the conduct of the Home Office throughout needs investigation. I urge people to write to their MP and to sign the government e-petition demanding extradition law reform.
- Paul Barasi, London, 16/01/2012 12:50
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Phil Jones - either you are woefully ill-informed, or you are an enemy of justice and of your own country. In the first place, Home Office own figures released under FOI show that nine times as many British citizens have been extradited to America since 2004 than US citizens extradited to the UK. Secondly, the treaty removed our fundamental right to contestable evidence while maintaining that right for US citizens. If you think that is 'fair', may I politely suggest you need your head examined.
And the less said about the violence and torture that is endemic in the profit-run US prison system, the better - as the Baker review demonstrates! But then I guess we all know how the British government and intelligence services feel about torture...
- Elaine, London, 16/01/2012 12:32
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Say on thing before the election, one thing after.
Remember Reforming Inheritance Tax, Compensation Equitable Life Pensioners, Cutting Immigration, Building Affordable Houses. Reforming MPS Expenses, Reform House Of Lords. Cutting Quangos, Cutting Red Tape. HA HA HA.
- Alan, England Fed up with all our politicians, 16/01/2012 12:24
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Unbelievable. The American Ambassador strikes again. Why else would the Home Secretary even be thinking of keeping a treaty that serves the USA so well, while depriving UK citizens of the right to justice?
What the Baker whitewash omits to mention is that NINE TIMES as many UK citizens have been extradited to the US under the treaty than vice versa. And that is not controlling for population size. What it also omits to mention is that as things stand, UK citizens do not have the right to contestable evidence while US citizens do. Not to mention the overwhelming demands for change in response to his public consultation.
Like I said, unbelievable.
- Clarice, London, 16/01/2012 12:18
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It's not 'unfair to British citizens'. Whenever a Brit commits a crime against a foreign jurisdiction, he/she whines that they don't have to answer for it in the other jurisdiction. We've seen it with the female drug mules carrying drugs into Thailand, now with a series of hackers into U.S. computers. They ask to be tried in the U.K. rather than be extradited because they know that foreign jurisdictions won't treat them as leniently as the slap-on-the-wrist U.K. justice system.
- Phil Jones, London EU, 16/01/2012 12:04
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