Saving Gary McKinnon

by Sharp, Janis

  When Wilson was driving me into Downing Street to have tea with Sarah Brown and Trudie, we initially we made good time but once we got near Fleet Street the traffic ground to a virtual halt. I was feeling a bit nervous as I was running late and we eventually reached No. 10 with one minute to spare. By the time I got out of the car and ran across the road everyone was waiting and they were all panicking and rushing me through the gate while the photographers were taking photos.

  I’m a last-minute kind of person, but I usually get there in the nick of time.

  Trudie looked elegant and glamorous, dressed in white. We went in the front door of No. 10. The policemen inside take your mobile phone and any camera if you have one and your belongings are kept safe in little lockers in the wall of the large foyer.

  We walked up the elegant staircase of the Prime Minister’s residence, which is the same staircase that Hugh Grant danced down when he played the part of the British Prime Minister who stood up to the American President in the film Love Actually. I hoped that our PM was about to do the same for Gary. For a moment I imagined Gordon Brown dancing down the stairs and through the rooms of No. 10 just as Hugh Grant had done, and it made me smile.

  We walked into a large light and airy living room and it occurred to me then that it must seem odd living here – like living in the office. Gordon Brown would effectively be on call all the time and I imagined that Sarah Brown and the children would find it difficult to get much privacy.

  I was really looking forward to having tea, as it helps me to relax. The newspapers were keen to know what was going to be said and what I would be given to eat but the only thing that mattered to me was what No. 10 had in mind to help Gary. I hoped this meeting could somehow lead to Gary being tried here in the UK and I was sure they had something up their sleeve.

  Sarah Brown was standing in the living room and looked more elegant and attractive in reality than in her photos, which don’t always do her justice. She was slimmer than I expected and has pale porcelain skin and hair that is a lovely shade of auburn. She walked forward to greet me and her eyes reflected an honesty and compassion that put me at my ease.

  I sat upright on the edge of the large sofa and Trudie sat next to me. She and Sarah Brown seemed to know each other quite well.

  Several advisers walked in to join us. I was hoping and praying that they had secretly come up with some grand plan to sort everything out for Gary.

  I poured out my thoughts and ideas and related other cases where British computer hackers had been accused of considerably more serious crimes against the US than anything Gary had done, yet they had been tried in the UK and at worst received a very mild sentence.

  I also pointed out that Gary was accused of accessing the computers prior to and during 2002 – before the extradition treaty was even written, years before it began to be used by the UK, and that it wasn’t allowed to be made retrospective.

  The advisers were making notes as I was speaking.

  Sarah said, ‘Do you realise you’re up against some very formidable people?’

  ‘Yes, I do,’ I replied. I was, in fact, all too well aware of this.

  I also knew that an adviser existed who was nicknamed the ‘smiling assassin’ by politicians.

  I went on to speak about Gary having Asperger’s and being suicidal, and about him preferring death to forcibly being taken from everyone and everything he had ever known.

  ‘Gary can’t go there and that’s all there is to it,’ said Trudie assertively.

  Trudie is no shrinking violet. She is elegant, articulate, intelligent and compassionate, and went on to speak up for Gary at length.

  ‘Contact the American ambassador to try and get his help,’ said Sarah.

  Glancing at Trudie with eyes full she added, ‘It’s very difficult.’

  We said goodbye and Trudie and I walked out into the sunshine. I had been feeling optimistic but was worried about Sarah’s suggestion that we should contact the American ambassador: surely 10 Downing Street was in a significantly better position to do that than I was?

  The photographers were waiting outside and were all shouting, ‘What did she say, Janis?’ ‘Did it go well?’ ‘What did you get to eat, Janis? Strawberries? Cream scones?’

  I was evasive and just smiled.

  I later privately told Michael Seamark from the Mail that I felt the meeting had gone well and as far as tea was concerned, we hadn’t been given any. There was only water.

  ‘Water! Well, I can’t write that,’ said Michael, and we both laughed.

  Wilson and I drove home, happy in the knowledge that both influential and powerful people cared enough about Gary to meet with us and to hopefully find a solution. I also thought that it being Independence Day could mean that the UK government might be about to prove that the UK was truly independent from the US.

  Just two days after my visit to Downing Street, Lord Carlile, the Home Office adviser on terror laws, stated in the newspapers, ‘Extraditing Mr McKinnon would be cruel and unconscionable when he could be prosecuted in the UK.’

  I was truly heartened by his words. That he would say this publicly I thought was politically very brave. I had never met him but he seemed to genuinely care about what was happening to Gary. I later learned that Lord Carlile apparently has a grandson who is autistic.

  • • •

  We had a court hearing for a judicial review against both Jacqui Smith and the Crown Prosecution Service on 14 July 2009. Gary’s lawyers were making a bid at the High Court to try to legally force the CPS into allowing a trial in the UK, challenging a refusal by the Director of Public Prosecutions to sanction a trial in this country.

  We were back in the Royal Courts of Justice. I had been here too many times to expect justice in a US extradition case, but hoped for it nevertheless.

  This seemed to be Gary’s last chance. Would he ever be free? Or was he doomed to carry on living in this twilight world, this surreal limbo he had been confined to for the last seven years?

  We walked through the vast space of the great hall, which, although cathedral-like, held none of the hope of sanctuary that could once be found in such places. We approached what should be an impressive flight of stairs but it was a cold unfeeling place. Somehow, in extradition cases, you can’t help but feel that the decision has already been made and that the job of the judges is to find a plausible justification for it.

  The court where Gary’s case was being heard was further up a smaller flight of stairs which brings you out among a collection of glass-cased costumes and hanging wigs, none of which do anything to raise your spirits. But perhaps that’s the idea, like the hard uncomfortable benches – nothing is designed to make you feel at ease.

  There is a wide passage with arched stone recesses that each have an oak table and bench where barristers and clients congregate to discuss their cases.

  Watching over this area sits a large bust of a judge made entirely out of metal hangers, with the hooks pointed outward like a halo around the figure.

  The ominous use of hangers, ‘things that hang’, to make this judge’s image, also did nothing to raise my spirits. I thought he must be the infamous ‘hanging judge’ but I was wrong. Ben Cooper, Gary’s barrister, told me that the figure was that of a good man.

  The case that day was a judicial review into the decision of the previous Home Secretary, Jacqui Smith: in particular that she did not take proper account of the impact that extradition, a pre-trial detention of indeterminate length and a prospective sixty-year sentence would have on his mental health.

  The day’s hearing also included an additional judicial review into the decision of the Crown Prosecution Service not to proceed with a UK trial. For the first time we had been presented with an internal CPS report on the original evidence the American prosecutors had offered to justify their request for extradition.

  Prima facie evidence had been required in 2002 before the extradition treaty had been signed, but the CPS confirmed that no evi
dence to back up the US allegations had ever been presented to them. The report, written by a CPS lawyer, dismissed the US submissions to them as hearsay and inadmissible. The report also questioned the lack of detail, and questioned whether proper procedures relating to the standard of evidence had been followed. It was a damning report on the quality of the American submissions by the very Crown Prosecution Service who acts on behalf of the American prosecutor in extradition cases.

  We were presented with that report only days before this hearing, normally far too late to have a defence expert go over the details. Fortunately, I had heard of Professor Peter Sommer of the London School of Economics, one of the leading forensic computer experts in the world. I managed to get his contact details the night before the court case, and Gary’s solicitor Karen formally instructed him.

  Professor Peter Sommer literally sat up all night to produce a detailed analysis of the CPS report – and his own disparaging report on the lack of normal security measures in place on the computers which Gary had allegedly accessed.

  He stated that the financial damage claimed by the US appeared to be for basic security that should have been installed in the first place but wasn’t. Had it been installed, it would have flagged up Gary’s presence.

  Professor Sommer had dealt with the CPS on other occasions and knew the police officers involved. He could not understand why they had not quizzed the US about the lack of evidence provided and why Association of Police Chief Officers (ACPO) evidence standards appeared not to have been followed.

  Gary was at home hiding from the world, not being able to face being back in court. But Edward Fitzgerald needed Gary there to explain to him the intricate technicalities of exactly what he had done. Edward is renowned for his ability to deliver complex arguments in a skilled manner.

  I rang Gary, and Lucy answered. Gary was upset and wouldn’t come to court; he was scared witless. Karen said he had to come – Edward needed him to be there. Eventually I managed to persuade Gary that there was no choice. Lucy accompanied him but he was clearly terrified, and even walking through the gauntlet of press was a huge ordeal for him.

  Gary sat in court with Edward to try to explain exactly what he had done, but it had been so long that he could barely remember, so started to try to think what he might have done and how he might have done it. I mean, more than seven years had passed!

  Ironically we were there in court to try to prove that Gary was guilty of computer misuse, as this could have allowed him to be tried in the UK.

  Gary had admitted from the very start, in March 2002, to a summary section 1 computer misuse offence, but even a summary section 2 or section 3 computer misuse offence, deemed more serious, carried only a sentence of six months when Gary was first arrested in 2002.

  The court rose as Lord Justice Sir Stanley Burnton and Justice Wilkie took their places on their dais in the no. 1 court, looking down over the massed media presence. Many young journalists having to sit on the floor made the court look more akin to a student ‘sit-in’ at a university.

  The benches were filled with our barristers and solicitors, the Home Office’s barristers and solicitors and the Crown Prosecution Service’s barristers and solicitors, each with a large pile of legal folders, and with friends and interested parties.

  The judges appeared to be enjoying the ramifications of Gary’s case and seemed amused that someone was applying to the court to be allowed to be prosecuted rather than the usual fight against it.

  Throughout the hearing, the noises the judges made were promising. In spite of previous disappointments, you never fail to hope.

  During the discourse, when they referred to the House of Lords attempting to justify the disparity of sentencing by suggesting that hypothetically an offence against the Maritime and Aviation Act could have been a possibility and could have led to a life sentence, Justice Burnton said ‘and pigs might fly’, and so did my hopes.

  My heart was soaring with the possibility that we had found a fair judge and a brave judge, whose mind was not already made up beforehand.

  After hearing of several other hacking cases which had occurred at the same time or prior to Gary’s – all of which were tried in the UK and all of which resulted in acquittal or a small fine or a low sentence – the judge agreed with Gary’s QC that most of those cases were deemed much more serious than Gary’s.

  When Justice Stanley Burnton read the CPS report and when the CPS admitted that they had been given no evidence by the US, just hearsay, Justice Burnton said, ‘Do you know how embarrassing this would be for the CPS if Mr McKinnon was ever to be tried in the UK?’

  The barrister for the CPS responded, ‘Yes, M’Lord.’

  I could hardly believe what I was hearing. Was this why the CPS was refusing to prosecute Gary? Fear of embarrassment?

  Gary’s QC, Edward Fitzgerald, fought hard for Gary to be tried here. Watching him was a revelation. Edward’s style had no abrasiveness or attempts to dominate. He didn’t raise his voice for dramatic effect, or try to act as though he was in a Shakespearian play. There was no arrogance in the man, just a genuine sharpness of mind and a quest for justice.

  Edward approached the judges at close quarters and looked into their eyes as he implored them to see sense. No ivory tower would allow the judges to hide, or escape from the honesty of Edward’s heart and mind, as he spoke to them in such an intimately persuasive manner that all present felt as though they were privy to a private conversation.

  Lord Justice Burnton eventually turned to Edward and, referring to the absence of evidence, said: ‘In that case he can go on a plane and he’ll come straight back again.’

  ‘But that’s not what would happen,’ said Edward. ‘That’s not how it works in America.’

  Simon Baron-Cohen had also written a strong report on the effect extradition would have on Gary which concluded:

  I have a real concern that he would not survive a term of imprisonment. I am stating this as strong assertion because to put a vulnerable adult who has a disability into a situation of imprisonment when that adult has [stated] that suicide would be preferable, to avoid the suffering that he fears he will experience in a prison, is a decision that should carry with it some responsibility for any consequences. The courts, for example, should not be able to claim that they were unaware of the risks prison might pose to Mr McKinnon if he suffers a complete psychiatric breakdown or commits suicide. The courts should have it on their record that if they order him to be detained, it is in the full knowledge that this outcome is a serious and dangerous possibility.

  Justice Burnton described the professor’s words as ‘going beyond his remit’.

  Every British judge seems to choose to ignore the fact that America often inflicts what we regard as outrageously disproportionate sentences for crimes that would carry a significantly lighter sentence here, if sentence there was.

  Edward Fitzgerald referred to one such case, where a young British woman named Chantal McCorkle, married to an American and living in America, ran a business with her husband telling people about buying repossessed property, refurbishing it and selling it on for profit. They promoted it with a video saying ‘you too can have a lifestyle like this’, and a TV ad that showed luxury houses, cars etc. that they supposedly had, but didn’t, as it was just an advert.

  When someone officially complained that they didn’t make money, Chantal and her husband were charged and found guilty of ‘infomercial fraud’, apparently because they used actors and didn’t actually own the houses featured in the commercials.

  The American court sentenced Chantal to twenty-four years in prison. She was put in leg irons in a secure American prison, because, being British, she was considered a flight risk. Her husband, being American, served his sentence in an open prison.

  After ten years in prison Chantal, known as ‘goody two-shoes’ to all her friends, asked to serve the remainder of her sentence in the UK and was told no, that her crimes were too serious!

  Edw
ard Fitzgerald had visited Chantal in America and shortly after he raised her case during Gary’s hearing, she reapplied and was repatriated back to the UK, where she served a short time in prison and was then given parole. She is now safely back with her family. But all that time in prison may have deprived her of the chance of motherhood, a heavy price to pay for a non-violent crime.

  Lucy was also approaching the age of forty: her biological clock was ticking and Gary would never agree to be an absent father. I am still hoping that they too haven’t been deprived of the chance to have children.

  When the hearing ended Trudie Styler stood at Gary’s side on the steps of the court. Hundreds of flashbulbs went off as Gary clenched his teeth, waiting for it to be over.

  CHAPTER 14

  CHANGE THE WORLD

  On 15 July 2009, I was invited to do an interview for BBC’s Newsnight. I was pleased as it was a serious news programme with credibility. Jeremy Paxman popped his head into the room I was waiting in beforehand and said, ‘I hope you won’t be so nervous that you won’t be able to speak.’

  ‘Of course I’ll be able to speak.’

  ‘Well, that wasn’t the case with Vivienne Westwood when I interviewed her. After a very long silence on a live show, she asked if we could start again.’

  ‘Well, I’m not a fashion icon,’ I smiled.

  The producer then spoke to me at length to gauge that I was capable of fighting Gary’s corner. She then spoke to the other guest who was being interviewed alongside me – an ex-CPS prosecutor. The producer stressed that he was to remember to say all the things that he had said he would say and not to hold back.

  We then went on air alongside Jeremy Paxman.

  The ex-CPS prosecutor made an experienced and pretty ruthless opponent and stated several times that Gary should be extradited. I was confident I could deal with all his points as by that time I knew the extradition treaty and the treatment of other accused hackers inside out.