ALAN JOHNSON, the Home Secretary, made a statement in the Commons this afternoon in response to an Urgent Question (they used to be known as “Private Notice Questions”) from Gary McKinnon’s MP, David Burrowes.

Alan dashed the hopes of campaigners hoping he would intervene in the extradition process. At the risk of boring you all, I thought it would be useful to reproduce Alan’s entire openign statement, since it is the most comprehensive and logical response to the “Free Gary” campaign I have heard.

Gary McKinnon is accused of serious criminal offences. He is alleged to have repeatedly hacked into US Government computer networks over a period of 13 months, including 97 US military computers from which he deleted vital operating systems and then copied encrypted information on to his own computer, shutting down the entire US army’s military district of Washington’s computer network for 24 hours. During interviews under caution, Mr. McKinnon admitted to much of the conduct he is accused of.

A great deal has been made of the perceived imbalance in UK-US extradition arrangements in respect of probable cause versus reasonable suspicion. While I am clear that no such imbalance exists, as Mr. McKinnon has admitted the conduct which has given rise to the extradition request, this issue is academic in his case. This aside, under the terms of the Extradition Act 2003, I can prevent an extradition only in very specific circumstances: where the person in question could be sentenced to death if convicted; where there is a chance of that person being tried for crimes committed before that extradition which were not specified in the extradition request; or where the person has previously been extradited to the UK from another country, or transferred here by the International Criminal Court, and no consent has been given to their being extradited elsewhere.

Outside of the statutory extradition scheme, the courts have made it clear that the only circumstances in which I could prevent extradition would be where the evidence demonstrates that extradition would be a breach of human rights. If it would breach human rights to proceed with extradition, I would have to halt proceedings. If it would not, it would be unlawful for me to do so.

Mr. McKinnon has challenged his extradition in the district court, the High Court, with the Law Lords, and in the European Court of Human Rights, all of whom have ruled that the extradition should go ahead. Following the diagnosis of Asperger’s syndrome in August 2008, he made fresh representations to the then Home Secretary claiming that because of his medical condition his extradition would breach the European convention on human rights. The then Home Secretary decided in October 2008 that the evidence Mr. McKinnon submitted did not meet the threshold needed to constitute a breach of the ECHR. Mr. McKinnon challenged in the High Court this decision and the decision by the Crown Prosecution Service that there were no grounds for him to be tried in this country.

On 31 July 2009, the High Court handed down both judgments. In its judgment on the Director of Public Prosecution’s decision that Mr. McKinnon should be tried in the US, Lord Justice Stanley Burnton said this:

“It is true that the Claimant’s offending conduct took place in this country. However, it was directed at the USA, and at computers in the USA; the information he accessed or could have accessed was US information; its confidentiality and sensitivity were American; and any damage that was inflicted was in the USA. The witnesses who can address the damage done by his offences are in America…However, it is not for this Court to decide where he should be prosecuted. The decision is that of the DPP. As appears from the preceding paragraphs of this judgment, he cannot be faulted for considering that, other things being equal, the Claimant should be prosecuted in the USA.”

He expressed the view that it would be

“manifestly unsatisfactory in the extreme”

for Mr. McKinnon to be tried in the UK and refused permission for this aspect to be judicially reviewed.

Secondly, the Court ruled on 31 July that the decision of the Home Secretary that the extradition of Gary McKinnon to the US would not amount to a breach of his human rights was also correct. The Lord Justice said:

“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. But if I compare his condition with those considered in the authorities to which I have referred above, even taking full account of the (in my view undesirable) possibility of his being prosecuted in this country, his case does not approach Article 3 severity.”

Following that decision, Mr. McKinnon’s lawyers made fresh representations, including additional medical evidence. I have carefully considered those representations and I am clear that the information that his lawyers have provided is not materially different from that placed before the High Court earlier this year and does not demonstrate that sending Mr. McKinnon to the United States would breach his human rights.

There are legitimate concerns about Mr. McKinnon’s health, and the United States authorities have provided assurances, which were before the High Court in July, that his needs will be met. It is also clear from the proceedings to date that there is no real risk that Mr. McKinnon, if convicted, will serve any of his sentence in a supermax prison. Should Mr. McKinnon be extradited, charged and convicted in the US and seek repatriation to the UK to serve his sentence in this country, the Government will progress his application at the very earliest opportunity.

As I have said at every stage of these proceedings, we will not commence extradition proceedings until all legal avenues that Mr. McKinnon wishes to pursue have been exhausted. He can lodge a judicial review within seven days of this decision, and he can appeal to the ECHR within 14 days of the same date. I am currently considering a request from Mr. McKinnon’s lawyers for an extension of the seven-day time limit.