McKinnon v United States of America
Jurisdiction | England & Wales |
Judge | Lord Justice Maurice Kay |
Judgment Date | 03 April 2007 |
Neutral Citation | [2007] EWHC 762 (Admin) |
Docket Number | Case No: CO/5897/2006 |
Court | Queen's Bench Division (Administrative Court) |
Date | 03 April 2007 |
[2007] EWHC 762 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Lord Justice Maurice Kay and
Mr Justice Goldring
Case No: CO/5897/2006
Mr Edmund Lawson QC and Mr Ben Cooper (instructed by Kaim Todner ) for the Appellant
Mr Mark Summers (instructed by the CPS ) for the 1 st Respondent
Mr David Perry QC (instructed by the Treasury Solicitor ) for the 2 nd Respondent
Hearing dates: 13, 14 February 2007
Crown Copyright ©
This is the judgment of the Court.
On 10 May 2006 in Bow Street Magistrates' Court, District Judge Nicholas Evans acceded to an application made on behalf of the Government of the United States of America and sent the case of Gary McKinnon to the Secretary of State for his decision as to whether or not Mr McKinnon should be extradited to the USA. On 4 July 2006, the Secretary of State decided that Mr McKinnon should be so extradited. Mr McKinnon now appeals against those decisions. The USA has been designated a category 2 territory pursuant to section 69 of the Extradition Act 2003. The case therefore falls to be considered under Part 2 of the 2003 Act. The appeal against the decision of the District Judge is brought under section 103. The appeal against the decision of the Secretary of State is brought under section 108.
The allegations
Mr McKinnon is British and lives in London. 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 with an open Microsoft Windows connection. From those computers, he extracted the identities of certain administrative accounts and associated passwords. Having gained access to those administrative 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, Mr McKinnon proceeded to install his "suite of hacking tools" – software that he used to facilitate further compromises to the computers which also facilitated the concealment of his activities. Using this software, he was able to scan over 73,000 US Government computers for other computers and networks susceptible to compromise in a similar fashion. 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. The relevant ones were:
1. 53 Army computers, including computers based in Virginia and Washington that controlled the Army's Military District of Washington network and are used in furtherance of national defence and security [charges 1 to 2]
2. 26 Navy computers, including US Naval Weapons Station Earle, New Jersey. This was responsible for replenishing munitions and supplies for the deployed Atlantic Fleet [charges 6 to 8]
16 NASA computers [charges 12 to 15]
4. 1 Department of Defense computer [charges 17 to 18].
Once the computers were accessible by Mr McKinnon, he deleted data including:
(1) Critical operating system files from nine computers, the deletion of which shut down the entire US Army's Military District of Washington network of over 2000 computers for 24 hours, significantly disrupting Governmental functions [charges 1 to 3]
(2) 2,455 user accounts on a US Army computer that controlled access to an Army computer network, causing those computers to reboot and become inoperable [charges 1 to 3]
(3) Critical Operating system files 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 rendered the Base's entire network of over 300 computers inoperable at a critical time immediately following 11 September 2001 and thereafter left the network vulnerable to other intruders [charges 8 to 10 and 11].
He also copied data and files onto his own computers, including operating system files containing account names and encrypted passwords from 22 computers. These comprised:
(1) 189 files from US Army computers [charges 4 and 5]
(2) 35 files from US Navy computers, including approximately 950 passwords from server computers at Naval Weapons Station Earle [charges 9 to 10]
(3) 6 files from NASA computers [charges 15 to 16].
Mr McKinnon's conduct was intentional and calculated to influence and affect the US Government by intimidation and coercion. As a result of his conduct, damage was caused to computers by impairing their integrity, availability and operation of programmes, systems, information and data on the computers, rendering them unreliable. The cost of repair totalled over $700,000.
In 2002 the compromises installed in three NASA computers were traced to Mr McKinnon's home computer in London. On 19 March 2002, pursuant to a request for mutual legal assistance, his computers were seized. Forensic analysis of them confirmed the above allegations. It provided evidence that:
(1) Mr McKinnon's computers contained administrative account names and passwords for 39 of the 97 compromised computers
(2) Of the 44 or so versions of "remotely anywhere" available on the internet, one of the many versions found on his computer was found on 71 of the 97 compromised computers
(3) 72 of the computers had "remotely anywhere" installed in a directory location selected uniquely by him
(4) A document found on his computer recommended the renaming of the "remotely anywhere" software to "ra.exe" and the "remotely anywhere" files found on 19 Army computers had been so renamed
(5) A further document found on his computer entitled "themethod.wri" contained detailed instructions as to how to undertake the above conduct
(6) His computer was not the subject of remote access from any other computers.
Pursuant to the request for mutual legal assistance, Mr McKinnon was interviewed under caution in London on 19 March 2002 and again on 8 August 2002. During those interviews he admitted responsibility for the intrusion into US Government computers and networks and the installation of "remotely anywhere" on them. This included the Army's Military District of Washington network and the Naval Weapons Station Earle network. He stated that he had copied files from the American computers onto his home computers and had deleted log files on the American computers so as to conceal his activities. He stated that his targets were high level US Army, Navy and Airforce 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 that read:
"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 … "
Like the District Judge, we have based that summary of the allegations on the written summary prepared by Mr Summers who appears on behalf of the United States Government. We emphasise at this stage that they are allegations, no more and no less.
The decision of the District Judge
On behalf of Mr McKinnon, a number of points were raised at the hearing before the District Judge. First, it was submitted that the designation of the USA as a category of state not required to establish a prima facie case in extradition proceedings was unlawful and ultra vires. The District Judge rejected this submission by reference to R (Norris) v SSHD [2006] EWHC 280 (Admin). Secondly, it was submitted that to qualify as an extradition offence under section 137(2) of the 2003 Act, the conduct complained of must have occurred exclusively in the requesting state and that, as Mr McKinnon had been in London at all material times, it could not be shown that his conduct amounted to an extradition offence. The District Judge rejected this submission by reference to Cando Armas [2006] 2AC 1, [2005] UKHL 67; Bermingham v Director of the SFO [2006] EWHC 200 (Admin); and R v Governor of Brixton Prison, ex parte Levin [1997] AC 741; [1997] 1 Crim App R 335. Thirdly, it was submitted that the extradition was barred by reason of extraneous considerations in that the request was made for the purpose of prosecuting him on account of his political opinions (section 81) or by reason of the passage of time (section 82). These submissions were rejected upon an assessment of the evidence. Fourthly, it was submitted that the extradition would be incompatible with Mr McKinnon's human rights within the meaning of the Human Rights Act 1998 (section 87 of the 2003 Act). Reliance was sought to be placed on Articles 3, 5, 6 and 8. This submission raised issues which centred upon whether Mr McKinnon was exposed to the risk of an unfair trial or detention by reason of liability to prosecution before a Special Military Tribunal or Military Commission under Military Order No 1. It also required consideration of Special Administrative Measures or SAMs. The District Judge rejected these submissions upon an evaluation of the evidence and by reference to recent authority, including Bermingham (above). He accepted that Article 8 was engaged but concluded that extradition would be proportionate. Fifthly, it was...
To continue reading
Request your trial-
R Haroon Aswat v Secretary of State for Home Department The United States of America (Interested Party)
...an event has occurred which would make extradition of the requested person incompatible with his Convention rights – the so-called McKinnon jurisdiction: McKinnon v. Government of USA [2007] EWHC 762 (Admin). An amendment to the Extradition Act 2003 has removed this jurisdiction from the Se......
-
Tobias Bowen v Secretary of State for Home Department (1st Respondent) The Government of the United States of America (2nd Respondent)
...to entertain an appeal on human rights grounds from the decision of the Secretary of State. In McKinnon v Government of the USA [2007] EWHC 762 (Admin) Maurice Kay LJ said, at [62], that in the great majority of cases an Appellant's human rights case will stand or fall with his appeal again......
-
McKinnon v United States of America
...Hale of Richmond Lord Brown of Eaton-under-Heywood Lord Neuberger of Abbotsbury HOUSE OF LORDS SESSION 2007-08 on appeal from: [2007] EWHC (Admin) 762 OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE David Pannick QC Ben Cooper (Instructed by Kaim Todner LLP) Respondents: Clare Mon......
-
R (McKinnon) v Secretary of State for the Home Department
...allegations against him are set out in paras 2 to 8 of the first judgment of the Divisional Court (Maurice Kay LJ and Goldring J) [2007] Extradition LR 117 and in paras 11 to 16 of the opinion of Lord Brown in the House of Lords [2008] Extradition LR 309. For convenience, I set out those pa......
-
The Forum Bar in UK Extradition Law: An Unnecessary Failure
...‘Try NatWest Three in UK—Tories’ (accessed 21 January 2020).30. McKinnon’s case spanned the period 2005–2010, see McKinnon v US [2007] EWHC 762 (Admin), McKinnon v US [2008]UKHL 59, R (on the application of McKinnon) v Secretary of State [2009] EWHC 2021 (Admin), and R (on the application o......