In the matter of Alan Johnson v Sense and Decency

In what has been called a “smear campaign against a guy with Asperger’s” by Gary McKinnon’s impressively resolute mother, Alan Johnson wrote an article for the Times a couple of days ago about how impotent he was concerning his ability to intervene in the case of Gary McKinnon.

I have only just climbed down from the walls after getting myself worked up into something of a fury over Johnson’s “firm, but unfair” approach to the matter.

Johnson begins his article by talking about how the Judgment of the Court of Appeal “emphasises the fact that it would be unlawful for the home secretary to intervene to prevent his extradition”. That is misleading in the extreme. What the Court of Appeal actually said was that they found no fault with the decision to extradite. During the course of the proceedings, the Secretary of State clearly accepted that he had the power, indeed the obligation, to decline to extradite McKinnon (if Article 3 of the European Convention on Human Rights would be infringed). It is not, as Alan Johnson erroneously suggests in his article, unlawful for him to intervene. He in fact has a duty to do so, if he considers that Article 3 would be infringed.

Here is the Court of Appeal on the likely effect of extradition on McKinnon (at para 89 of the Judgment):

“89. Ultimately, I have to weigh the impressive medical evidence adduced by the Claimant against the severity involved in Article 3. I have no doubt that he will find extradition to, and trial and sentence and detention in the USA, very difficult indeed. His mental health will suffer. There are risks of worse, including suicide.” [1]

What Johnson clearly wishes to avoid facing is the fact that his decision – and the Judgment of the Court of Appeal – basically amount to an assumption as follows: “Well, I know the expert evidence suggests that extradition might lead to Gary’s mental health suffering and might cause him to commit suicide, but despite what those experts say, I think he’ll probably be alright”.

Additionally, nowhere does Johnson mention the fact that he has declined thus far to seek any undertakings from the US that McKinnon be granted bail until sentenced and that he would be repatriated to serve his sentence in the UK. He has the power to do this. Why is he not exercising it?

Aside from getting the Law wrong (and neatly side-stepping the possibility that the Law is itself wrong), the remainder of Johnson’s article seems largely dedicated to a series of wretched attempts at assuaging his conscience. Johnson states toward the beginning of his article: “I can make no pronouncement of McKinnon’s guilt or innocence” and then proceeds to expound a shoddily put-together argument aimed at proving McKinnon’s guilt. He goes on and on about how terrible a crime he thinks it is, and points out that McKinnon’s actions “affected critical government security systems in America.” Well, if those systems were so critical, maybe the IT geniuses at Nasa should have changed the password from “password” to something a bit harder to crack.

Johnson tries his best to justify McKinnon’s extradition to the US. However, he has one moment of clarity, when he seems to suggest that he actually thinks trial in the UK would be better, to quote Johnson: “he should be tried fairly … in a court of law” (my emphasis). Probably best he stays here then.

There are questions over whether the extradition laws should have been employed in the way they were and questions over the validity of those laws. However, perhaps more important than the question of where McKinnon should be tried is whether he should be tried at all? We are, after all, talking about a lone autistic man, who was looking for aliens. He is not part of some highly organised criminal faction intent on bringing down America’s intelligence systems. There has been absolutely no sense of proportionality in any of the decision-making concerning this case.

Praise must be expressed for Peter Hain taking a stand for McKinnon and of course, the voice of sense and reason in British politics, Chris Huhne, who rightly said that “Ministers should hang their heads in shame over the Gary McKinnon case”. Even the Daily Mail understands this one.

[1] The quoted passages of medical evidence contained in the Judgment make for sombre reading and go into a lot more detail as to McKinnon’s condition and how the whole extradition process would cause him to suffer, would cause his mental health to deteriorate and possibly result in suicide. Worth having a look at if you feel able to cope with the subsequent hours of banging your head against a wall, trying to understand how the Secretary of State and then the Court of Appeal came to the decisions they did.