Statement by Keir Starmer QC, Director of Public Prosecutions, and Assistant Commissioner of the Metropolitan Police Service Mark Rowley QPM on the case of Gary McKinnon
Between 1 February 2001 and 19 March 2002, Gary McKinnon allegedly gained unauthorised access to 97 United States (US) Government computers. An investigation was launched in the US and a request for assistance was made to the National Hi-Tech Crime Unit in England and Wales. Following discussions between the US Department of Justice, the police and the Crown Prosecution Service in the autumn of 2002, a decision was taken that the appropriate place for Mr McKinnon to be tried was the United States.
The reasons for that decision were:
- The harm occurred in the US - the activity was directed against the military infrastructure of the US;
- An investigation had already been launched in the US;
- There were a large number of witnesses, most of whom were located in the US;
- All of the physical evidence (with the exception of Mr McKinnon’s computer) was located in the US;
- The US prosecutors were able to bring a case that reflected the full extent of Mr McKinnon’s alleged criminality; and
- The bulk of the unused material was located in the US. Given the nature of the offence, this inevitably included highly sensitive information and the US courts were best placed to deal with any issues arising in relation to this material.
As a result, the US sought Mr McKinnon’s extradition from England and Wales for trial in the US.
The decision that the appropriate place for Mr McKinnon to be tried was the US was affirmed in 2009 and subsequently challenged in the High Court. That challenge failed. As Lord Justice Stanley Burnton said in his judgment: “… [it is] the decision of the DPP, which I consider to be lawful and unchallengeable, not to prosecute him here … the USA is the appropriate forum for his prosecution.”
On 16 October 2012, the Home Secretary decided not to extradite Mr McKinnon to the US on the basis of his health. She also announced that it was now for the DPP to decide whether Mr McKinnon had a case to answer in a UK court. At that stage there was no live criminal investigation in England and Wales, nor had there been for many years.
The DPP and the Assistant Commissioner of the Metropolitan Police therefore agreed to convene a joint police/CPS panel to consider whether a new criminal investigation should be commenced.
None of the reasons for the original decision in 2002 that the appropriate place for Mr McKinnon to be tried was the United States have altered. So far as the evidence is concerned, the position in 2012 is the same as it was in 2002. Most of the witnesses are in the US, as is nearly all the physical evidence and the bulk of the unused material, some of which is sensitive. Accordingly, in November this year, the CPS and the police met senior officials from the US Department of Justice to discuss the possibility of bringing the US witnesses to England and Wales for trial and of transferring all the US material to this jurisdiction to be considered.
The potential difficulties in bringing a case in England and Wales now should not be underestimated, not least the passage of time, the logistics of transferring sensitive evidence prepared for a court in the US to London for trial, the participation of US government witnesses in the trial and the need fully to comply with the duties of disclosure imposed on the CPS. The prospects of a conviction against Mr McKinnon which reflects the full extent of his alleged criminality are not high.
After consulting with the Metropolitan Police Service and the CPS and having carefully considered matters, on 4 December this year, US authorities indicated to us that they would be willing to co-operate with a prosecution in England and Wales if that would serve the interest of justice. However, they do not consider that making all the US witnesses available for trial in London and transferring all of the US material to this jurisdiction would be in the interests of justice given our representations and the reasons for the decision that the US was the appropriate forum as set out above. That is a decision the US authorities are fully entitled to reach and we respect their decision.
Against this background, the joint CPS/police panel recommended to the Assistant Commissioner of the Metropolitan Police that he should not commence a new criminal investigation into Mr McKinnon. The Assistant Commissioner of the Metropolitan Police has accepted that advice.
