Results tagged “Law Lords”

Joshua Rosenberg, the Sky News / Daily Telegraph legal correspondent , in a detailed report about the BAE / Saudi Arabia / Serious Fraud Office scandal, which the House of Lords also made a Judgment on today, mentioned in passing that:

Gary McKinnon has LOST his appeal to the House of Lords, against extradition to the USA.

So much for British Justice.

Hopefully Gary's legal team will be lodging an appeal with the European Court of Human Rights in Strasbourg..

More details when the Law Lords Judgment is published online this afternoon.

The Register has a decent report about Gary McKinnon's House of Lords hearing yesterday:

Pentagon hacker vows to take extradition fight to Europe

McKinnon begins nail-biting Lords wait amid claims of US threats

By Chris Williams
Published Monday 16th June 2008 17:54 GMT

Gary McKinnon's legal team said they will take their fight against his extradition all the way to the European Court of Human Rights on Monday, as the highest court in England began deliberations on whether to turn him over to US authorities.

The London hacker now faces an anxious wait for the judgment on his latest appeal, which is expected to take about two weeks.

It is hard to believe that they will make a decision in "only" two weeks, that would be swifter than all the lower courts and appeals.in this case.

During a day-long session of legal nit-picking, five Law Lords heard McKinnon's barrister, David Pannick QC, argued that the US had abused process by trying to strong-arm his client into accepting extradition and pleading guilty.

'Play by our rules'

Pannick told the hearing: "If the United States wish to use the processes of English courts to secure the extradition of an alleged offender then they must play by our rules."

It emerged that in exchange for compliance, US prosecutors offered to withdraw a threat to block any application for McKinnon to be repatriated to serve most of his time in a UK jail. This threat is central to his lawyers' claims of abuse of process.

The bargain offered by the US Embassy's Ed Gibson (who is now Microsoft UK's chief security adviser) for a guilty plea would reduce his sentence from eight-to-ten years, to between three and four years. Combined with the UK's more generous parole system, that would mean that McKinnon might have served only two years in prison.

In her evidence, McKinnon's solicitor Karen Todner said that in their correspondence the US had told her that failure to play ball would mean "all bets were off" and that repatriation to the UK "would not occur". This threat, charged McKinnon's team, "sought to impose pressure to accept extradition and plead guilty", and represented an unlawful abuse of the court process that was "disproportionate [and] reprehensible".

Prosecutors exaggerated their influence over the repatriation process, said Pannick, in a bid to secure McKinnon's co-operation, and that had "made it all the worse". Edward Fitzgerald QC, who provided supporting intervention at the hearing on behalf of the civil liberties charity Liberty, said: "What the prosecution [was] saying is 'I have immense powers and I will use them against you'."

McKinnon has admitted taking advantage of lax security in US systems to install covert software that gave him control of settings and access to files. He was looking for evidence of UFOs. He has not admitted causing hundreds of thousands of dollars of damage, a claim at the heart of the US government's allegations.

Clare Montgomery QC, acting for the US government, disputed this, saying if McKinnon had refused to cooperate he would have still been considered for a return to the UK. "This was very close to the type of plea bargaining that might occur here... this was not a case of 'we [US prosecutors] can give or withold the right to transfer [to the UK]'" she told the Lords.

Montgomery also echoed comments from one of the Lords sitting, Baroness Hale, who had suggested that the deal offered to McKinnon might simply have been "the facts of life", rather than a threat, and that it offered him significant benefits. She scorned calls for Gary McKinnon to face trial in the UK, saying: "He must have appreciated as he hacked into American computers that he was committing an act that would have had repercussions in America."

What exactly did the Law Lord, Baroness Hale actually say, rather than what the barrister acting for the US Government "echoed" ?

On a knife-edge

In the Palace of Westminster corridors after the hearing, the consensus among the gathered legal minds was that the case is poised on a knife-edge. Nevertheless, McKinnon's team were cautiously upbeat.

McKinnon himself attended only the morning session of the hearing, flanked by family and supporters. Win or lose, the saga is set to continue for some time.

[...]

Defeat would be a major blow, but McKinnon's team said outside the hearing that it would be by no means the last stand. The precedent set by the European Court of Human Rights in the Babar Ahmad case makes a challenge there likely, said solicitor Karen Todner.

And that can take years.

The Babar Ahmad case is still awaiting a decision by the Grand Committee of the European Court of Human Rights, even though he was refused the right to appeal to the House of Lords, and applied to the ECHR, in June last year.

The Register's IT News rival ZDnet reports more details about the disputed "plea bargain" session held at the US Embassy

At a meeting with Mr Gibson and Mr Stein [in April 2003], Mr McKinnon was told that if he did not agree, then all bets were off," Pannick said. "Eight to 10 years [per count] or possibly longer was indicated."

Moreover, in a letter to McKinnon dated 9 April, 2003, Gibson said the US authorities would reserve the right to prosecute McKinnon under US military law, which carries much more stringent penalties, Pannick told the court.

"Mr Gibson is threatening that if you do not co-operate, [the US] will reserve the right to rely on that," said Pannick.

However, court documents submitted by the prosecution on behalf of the US authorities reject the assertion that the legal team led by Gibson was threatening McKinnon, and maintain that Gibson was informing McKinnon of statements of fact.

"Your respondent maintains that it has never 'threatened' the appellant as alleged," stated the documents.

Gibson was unavailable for comment at the time of writing. He became Microsoft's chief security advisor in the UK in 2005.

Ed Gibson, was an FBI special agent and Legal Attache at the US Embassy in London.

Scott Stein was the Assistant U.S. Attorney for the Eastern District of Virginia, i.e. the prosecutor who pushed through their Grand Jury indictment of Gary McKinnon in November 2002, and who also now seems to be on the Microsoft payroll, as a senior attorney in their cybercrime unit.

These former US Government officials (and one other) are basically claiming that Gary's legal team, including the eminent barrister Edmund Lawson QC, are lying about the meeting which took place at the US Embassy in London, something which is quite extraordinary, and which might perhaps influence the law Lords against the US Government.

This is hardly going to dampen down conspiracy theories about the case, or help to win friends for the US Government.


The official listing of forthcoming hearings by the Law Lords has now been published online:

JUDICIAL SITTING FOR TRINITY TERM 2008 (.pdf)

(Tuesday 3 June - Thursday 31 July)
(Sittings commence: 11.00 am on Monday, 10.30 am on Tuesday - Thursday)


Monday 16 June

Committee Room 1

McKinnon (Appellant) v Government of the United States (Respondents) and another

Lord Phillips of Worth Matravers
Lord Scott of Foscote
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Lord Neuberger of Abbotsbury

Members of the Public are allowed to watch the proceedings of a Law Lords hearing - see the Watch judicial hearings web page.

The House of Lords acts as a Supreme Court of Appeal for the UK. Full-time professional judges called the Law Lords hear public judicial hearings. Anyone can attend a judicial hearing and there is no need to arrange access in advance.

When, where and what are they like?

Hearings run throughout the year and take place from Monday to Thursday.

When hearing appeals, around five Law Lords meet in an Appellate Committee, which is usually located in Committee Room 1. The Law Lords hear about 85 appeals a year.

The hearings are relatively informal. Judges dress in business suits rather than robes and sit around a horseshoe table on the same level as those attending.

Appeals being heard and directions

[...]

If you are coming to watch a judicial hearing please inform a visitor assistant or a police officer when you arrive at St Stephen's entrance - they will direct you to the right queue.

Given the numbers of tourists and the long queues to get though the airport style security at the main St Stephens entrance, you need to get there an hour beforehand, i.e. 10:00 am ahead of the 11:00am start on a Monday, as the space for the public and the media is limited in the Committee Rooms, and is on a first come, first served basis.

As you would expect from the most senior Judges in the UK, they sit on the Crossbenches (i.e. neither the Government nor the Opposition) in the House of Lords, and never vote on legislation, although they occasionally speak or present a report.

Lord Phillips of Worth Matravers is Master of the Rolls, i.e. the third most senior Judge in England and Wales just below the Lord Chancellor (a politician) and the Lord Chief Justice.

Lord Brown of Eaton-under-Heywood currently was until recently as the Intelligence Services Commissioner, who is supposed to investigate the activities of the UK intelligence agencies MI5 the Security Service, MI6 the Secret Intelligence Service and GCHQ (the UK partner of the US National Security Agency) and the UK military, with regard to electronic snooping and interception of communications or other forms of surveillance, covert human intelligence sources etc.
Given that his Annual Reports to Parliament have never criticised any of these agencies, dies that mean that he is likely to be inherently sympathetic to the US Government ?

Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury also recently sat on the European Arrest Warrant appeal, which overturned a writ of Habeas Corpus, and allowed the Extradition of Farid Hilali to Spain, which may prove to be of relevance in whether they decide to trust any promises or assurances given by the US Government.

Hopefully these particular law Lords will be reminded of the fact that the Spanish authorities ignored and flouted their Judgment, once they had their prisoner in their power - Judgments - In re Hilali (Respondent) (application for a writ of Habeas Corpus). The UK Law Lords had ruled that Hilali should only be extradited to face the more serious of the two charges against him in Spain, and not the lesser, probably easier to prove one. All the evidence that case is also purely electronic and international, as with Gary McKinnon's case.

The Spanish authorities have utterly ignored this UK Law Lords judgment and have perversely done exactly the opposite - charged Hilali with the lesser offence, and not the one which the UK Law Lords permitted him to be extradited on.

Baroness Hale's hopes for "... a spirit of mutual trust and respect and not in a spirit of suspicion and disrespect" seem to have been dashed. Once bitten, twice shy ?

If the Judgments of the Law Lords are not even respected and obeyed by fellow European Union countries like Spain, why should they be respected or obeyed by the United States government ?

It is usually several weeks or months after a hearing, before the Law Lords actually publish a Judgment in this, or any other, case before them.