Raising the Bar: How the UK Extradition Laws Were Put to the Test

If history remembers Theresa May fondly for anything at all, it will be for blocking British hacker Gary McKinnon’s extradition to the United States in 2012. A decade earlier, McKinnon had been arrested in the UK on suspicion of accessing US government computer systems without authorisation. In interviews at the time, he blithely told journalists that he had been looking for evidence of UFOs.

McKinnon was the first British hacker to face the prospect of extradition. While the UK was capable of taking its own to court and had the criminal law to do so, US prosecutors had made very public complaints about the way some 1990s prosecutions had been handled in the UK—based on a transatlantic difference of opinion about whether unauthorised access should be treated as a minor infraction or as an act of lèse-majesté.

What made this cultural difference a threat to diplomatic relations was a permissive post-9/11 Extradition treaty, which allowed UK citizens to be submitted to the strictures of the US criminal justice system without even the presentation of a prima facie case, something that notably did not apply in the other direction. That is to say, American prosecutors could demand UK citizens be sent to the US for trial without showing any evidence for their allegations at all.

In what looks like, in retrospect, a stunning abuse of process, Gary McKinnon became the first person accused of computer crimes to face this new threat despite the treaty not having come into force at the time of his arrest in 2002. What McKinnon experienced over the next decade can only be described as an ordeal by process. He ended up going through the entire run of court hearings not once, but twice, with the second round of litigation initiated by a diagnosis of Asperger Syndrome. And he still lost his case.

A fearsome and vocal campaign led by McKinnon’s mother, Janis Sharpe, and local MP David Burrowes made the life-threatening stakes of what was going on entirely clear and, in doing so, also produced a fundamental shift in how autism was understood in the UK. The sheer injustice of submitting someone with these health conditions for out-of-scale punishment in the US resonated with a UK public disgusted by the Iraq war and wanting to take back control of their sovereignty from overweening foreign powers. The case was raised at head of state level and today the US embassy in London still has pages on its website dedicated to it.

Theresa May’s move to block McKinnon’s extradition in 2012, while she was still Home Secretary, was motivated by a desire to preserve/observe human rights: “After careful consideration of all of the relevant material, I have concluded that Mr McKinnon’s extradition would give rise to such a high risk of him ending his life that a decision to extradite would be incompatible with Mr McKinnon’s human rights.”

Stopping Gary McKinnon from being sent to the United States was accomplished via administrative fiat rather than by process of law. But Theresa May did commit to changing the law.  The forum bar duly passed by the UK Parliament in 2013 was designed to ameliorate the effect of the Extradition Treaty by allowing judges to rule that, if a defendant’s links to the UK were strong enough, it would not be in the interests of justice for them to face trial abroad.

British-Finnish computer scientist Lauri Love became the test case for these new arrangements. Love faced potential extradition to the United States for his alleged involvement in #OpLastResort, the series of online protests spearheaded by Anonymous following the persecution and untimely death of Internet activist Aaron Swartz.

Like McKinnon, Love is neurodiverse and immensely sympathetic. Though, as a self-proclaimed anarchist, Love may not have been best positioned to be taken up as a cause célèbre for Conservative MPs. At the time of the video attached to this article, Love had just lost the first round of his own extradition battle, to the shock of just about everyone—not least the parliamentarians who had been assured that the forum bar would prevent a McKinnon-like scenario arising again. The ruling gave Conservative MP David Burrowes an opening to prod Theresa May at a weekly question session. “Surely,” the MP asked of May, “she intended [the forum bar] to protect the vulnerable?”

May responded with the evasion combined with a slight air of panic that became her default mode as Prime Minister. But one can decipher within the equivocation of her response that she believed Love’s case was for the courts to decide. The High Court did eventually rule in Love’s favour over a year later, with all the attendant heartache and anxiety for Lauri and his family in the meantime. That ruling registered a late agreement with Burrowes: the forum bar was “clearly intended to provide a safeguard” and that decision (luckily) ensured that Lauri Love would stay in the UK.

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