McKinnon v Government of the USA and another, Hurstanger Ltd v Wilson and another
Queen’s Bench Division (Divisional Court)
Maurice Kay LJ and Goldring J
3 April 2007
While the evidence of conduct on the part of the prosecuting or judicial authorities in a requesting state might amount to the abuse of extradition proceedings, cultural reservations about the style of plea bargaining should not stand in the way of extradition.
Edmund Lawson QC and Ben Cooper (instructed by Kaim Todner) for the appellant.
Mark Summers (instructed by the Crown Prosecution Service) for the first respondent.
David Perry QC (instructed by the Treasury Solicitor) for the second respondent.
The appellant was British and lived in London. It was alleged that, between February 2001 and March 2002, he gained unauthorised access to 97 computers belonging to and used by the US government. He was acting from his own computer in London. Through the internet, he identified US government network computers, which it was contended he accessed. The relevant computers included those belonging to the army, navy, NASA and Department of Defence. It was alleged that he deleted data on those computers including critical operating system files, user accounts and other files, and that he copied data and files onto his own computers. He was interviewed under caution in London in March and August of 2002, during which interviews he admitted responsibility for the intrusion into US government computers and networks. The US applied for his extradition.
In May 2006, the district judge acceded to that application, and sent the case to the Secretary of State for his decision as to whether or not the appellant should be extradited. The Secretary of State held that he should be. The appellant appealed against both decisions. The issue arose, inter alia, as to whether a proposed plea bargain by the US rendered the application for extradition an abuse of process. The plea agreement drawn up provided that the US would not oppose repatriation, so that the appellant could serve his sentence in the UK, although no guarantees would be given.
Maurice Kay LJ (giving the judgment of the court):
His Lordship had seen the plea agreement. It was a curious document to one steeped in English criminal procedure. One of its provisions provided:
“The defendant is aware that the defendant’s 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 defendant’s 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.”
Counsel for the appellant described the plea agreement as a “pig in a poke deal”.
His Lordship made no secret of the fact that he viewed with a degree of distaste the way in which the American authorities were alleged to have approached the plea bargain negotiations. Viewed from the perspective of an English court the notion that a prosecutor might seek to induce a plea of guilty on the basis that substantial benefits would be withdrawn if one was not forthcoming was anathema. His Lordship referred in particular to the providing and withdrawal of support towards repatriation.
However, he had to deal with the case as it now was. The appellant had not accepted the plea bargain. If he had a defence, he was right to stand firm. If he did not, he might yet live to regret his decision. His Lordship was quite sure that he would receive a fair trial in the American courts and that, if there were to be an error in the trial process or in relation to sentencing, he would have appropriate protection through the appellate process.
The one point that had caused serious concern was whether the contingent but extant threat (for such it was) not to support repatriation in the event of conviction after a trial in the US could be said to amount to an abuse of the extradition proceedings. The appellant relied on the decisions of the Supreme Court of Canada in United States of America v Cobb [2001] 1 SCR 587 and United States of America v Shulman [2001] 1 SCR 616.
The respondents submitted that they were distinguishable, with which his Lordship agreed. There was a fundamental difference between, on the one hand, offering something lawful to which a person was not automatically entitled in law (such as the acceptance of pleas to fewer or lesser offences with a consequent reduction in sentence or assistance towards repatriation) and, on the other hand, threatening something unlawful against which the person would normally have legal protection (such as an irremediably unlawful sentence or, as in the Cobb case, homosexual rape).
While his Lordship was prepared to accept that evidence of conduct on the part of the prosecuting or judicial authorities in a requesting state might amount to the abuse of extradition proceedings, it did not do so in the instant case. The court should not allow its cultural reservations about the style of plea bargaining to stand in the way of extradition. It was not possible to conclude that the present posture of the US prosecuting authorities put an end to all hope of repatriation. There was no abuse of process.
