Results tagged “Judical Review”

The British and Irish Legal Information Institute have published the text of the two combined Judicial Review Judgments made against Gary McKinnon which were handed down on Friday 31st July 2009:

McKinnon, R (on the application of) v Secretary of State for Home Affairs [2009] EWHC 2021 (Admin) (31 July 2009)

Neutral Citation Number: [2009] EWHC 2021 (Admin)
Case Nos.: CO/9914/2008 and CO/4801/2009

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
31/07/2009

B e f o r e :

LORD JUSTICE STANLEY BURNTON
MR JUSTICE WILKIE

Between:
THE QUEEN ON THE APPLICATION OF GARY MCKINNON
Claimant
- and -

SECRETARY OF STATE FOR HOME AFFAIRS
Defendant

And Between

THE QUEEN on the application of

GARY MCKINNON
Claimant
- and -

THE DIRECTOR OF PUBLIC PROSECUTIONS
Defendant

Edward Fitzgerald QC and Ben Cooper (instructed by Kaim Todner LLP) for the Claimant
Hugo Keith QC (instructed by the Treasury Solicitor) for the Secretary of State for Home Affairs
David Perry QC and Clair Dobbin instructed by the CPS for the Director of Public Prosecutions
Hearing dates: 9, 10 June 2009; 14 July 2009


The Judges rejected Gary McKinnon's lawyers' arguments against the Director of Public Prosecutions

47 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. His opinion that the criminality of the Claimant's offending cannot fully be investigated here cannot be challenged: it is not said to be perverse, and I cannot see any basis on which it could be challenged as such.

and they also rejected their legal arguments regarding the Home Secretary / Home Office.

However they do seem to have allowed for the possibility of a Human Rights Act Article 8 (the right to privacy in communications and family life) judicial review, because of the successful appeal to the House of Lords of Ian Norris (the former chairman of Morgan Crucible plc) , in another case involving extradition to the USA, who is accused of alleged "price fixing" in the USA, for actions which were not, at the time, illegal in the UK.

95 But for the grant of leave to appeal in Norris, I would have refused to grant permission to apply for judicial review on the Article 8 ground. However, in these unusual circumstances, we propose to allow the parties to present further submissions on the question whether we should grant permission for judicial review on Article 8, while refusing judicial review on that ground.

This means that Gary's lawyers are not legally prevented from asking for permission to appeal to what used to the Law Lords, who now, as of this week, will no longer be sitting in the House of Lords, but in the new United Kingdom Supreme Court, which is physically located across Parliament Square from the Palace of Westminster in the former Middlesex Guildhall building

N.B. some of the mainstream media coverage of this has assumed incorrectly that the words "Supreme Court" mean the United States Supreme Court.

Karen Todner, Gary's solicitor, has stated that she will be applying (within the statutory 28 days) for such an appeal to be heard, however, it is by no means certain that this legal avenue will be open or successful..


Whilst awaiting the "reserved" decision of the Judicial Review of the Home Office's decision to deliberately ignore the Asperger's Syndrome aspects of the Gary McKinnon extradition case his legal team have applied for another Judicial Review.

This challenges the decision by the Crown Prosecution Service and the Director of Public Prosecutions, not to prosecute Gary under the Computer Misuse Act 1990 here in the UK.

This would give him a chance of a fairer trial than in the USA, and, if found guilty, a more proportionate prison sentence, to be served in the UK. Prosecution for the same alleged offences in the UK, would take precedence over any extradition to the USA, as is usual under international extradition law.

The Oral Application will be heard on Tuesday 14th July 2009, at 2pm, by the same Judges who heard the Judicial Review on June 9th i.e. Lord Justice Stanley Burnton (a Lord Justice of Appeal) and Mr Justice Wilkie.

If they decide to hear this Judicial Review, they will do so that afternoon.

It would be extraordinary if these two eminent Judges were to publish their "reserved decision" on the first Judicial Review, before the 14th July