McKinnon v United States of America
| Jurisdiction | England & Wales |
| Judge | LORD BROWN OF EATON-UNDER-HEYWOOD,BARONESS HALE OF RICHMOND,LORD PHILLIPS OF WORTH MATRAVERS,LORD NEUBERGER OF ABBOTSBURY,LORD SCOTT OF FOSCOTE |
| Judgment Date | 30 July 2008 |
| Neutral Citation | [2008] UKHL 59 |
| Date | 30 July 2008 |
| Court | House of Lords |
and another
[2008] UKHL 59
Appellate Committee
Lord Scott of Foscote
Lord Phillips of Worth Matravers
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Lord Neuberger of Abbotsbury
HOUSE OF LORDS
Appellant:
David Pannick QC
Ben Cooper
(Instructed by Kaim Todner LLP)
Respondents:
Clare Montgomery QC
Mark Summers
(Instructed by Crown Prosecution Service)
Interveners (Liberty)
Edward Fitzgerald QC
Joseph Middleton
(Instructed by Liberty)
My Lords,
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.
My Lords,
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.
My Lords,
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'.
Introduction
My Lords,
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.
The extradition request had been preceded by:
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(i) Requests by the respondent government to the UK in March 2002 for mutual legal assistance pursuant to which the appellant's home computer was seized and he was twice interviewed under caution.
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(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.
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(iii) Plea-bargaining discussions between November 2002 and April 2003 during which the US prosecutors indicated to the appellant's 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.
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 appellant's 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 appellant's extradition.
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: [2007] 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 defendant's 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?"
Pursuant to section 87 of the Act the District Judge had to decide whether the appellant's 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 [2007] QB 727, para 97 and by Lord Phillips of Worth Matravers CJ in R (Government of the USA) v Bow Street Magistrates' Court [2007] 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.
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 state's "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 defendant's discharge from the extradition proceedings.
With those few introductory paragraphs it is necessary to turn in a little detail to the facts of the case.
The appellant's alleged criminality
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.
The 97 computers the appellant accessed were: 53 army computers, including computers based in Virginia and Washington that control the army's 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.
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 Army's 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 Base's 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.
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.
The appellant's 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.
Analysis of the appellant's 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)
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...
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