back to article Judges set timetable for McKinnon case resolution

Senior judges have set a timetable to speed up resolution in the long-running Gary McKinnon extradition case, effectively setting a deadline for the Home Office to respond to evidence that McKinnon is too infirm to withstand the stress of a US trial and likely imprisonment over alleged Pentagon hacking offences. The case was …

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"The campaign focused attention on US-UK extradition requirements, which critics argue are unfairly biased because US extradition requests need not be accompanied by any evidence"

This would seem to be irrelevant insofar as he has admitted it.

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Anonymous Coward

wrong..oh so wrong

He admitted breaking the UK Computer Misuse Act - and rightly expected to be prosecuted in the UK for breaking that law (probable suspended sentence). He did not admit to any terrorist activity - which is what the extradition agreement was intended for. The point is that they are trying to extradite him on terrorist charges for which no evidence is required, and which he has denied.

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Whether or not it's relevant doesn't necessarily have any impact on whether or not the treaty is valid though. Especially if it's a campaign to have the treaty scrapped/reviewed.

I'd love to think of a good analogy, but I can't! I guess the closest I can think of would be if you did something and got stung by the terms and conditions used by company A. Although you couldn't deny you did it, you could argue the terms were unfair and therefore invalid. Even then it's a bad analogy because the contract would relate to you and not simply be used against you having been agreed by someone else (perhaps a change in contract agreed by a Union, I dunno)

Anyway, he definitely did wrong, but I don't think to the extent that warrants extradition. I also have a bugbear about anyone believing that they can ignore medical evidence/reports. I suspect he'll be back in court though as I'm not convinced Theresa May is going to give the yanks two fingers!

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@Ben

Have a read on the Internet. Like you I did think his activities where more of the 'slap on the wrist' offense.

I was quite surprised to read the level of damage for which he is accused. There is a blog by a Solicitor, Jack of Kent, which seems to be unbiased.

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...crime was committed in the UK

Seems to me that's a very weak argument.

Lets think, lets say a bank robber or someone sets up an arrangement so that by pulling a rope on one side of a National border they break into a bank on the other side of the border. The crime surely happened where the bank was, not where the bloke was pulling the rope.

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@Titus

Thanks for that, had Jack of Kent in my 'to read' list for a while!

It's interesting looking at the charges actually, they definitely don't line up with what we hear in the media

- Deleted critical operating system files from 9 computers - OUCH! - leading to a 24hr shutdown of 2000 computers.

I'd assume then that those 9 computers were in fact servers!

- rm'd 2,455 user accounts from one computer -OUCH! - again guessing a server

- rm'd sys files & logs from systems at Weapons station

- Downloaded data we already know

Left message : "US foreign policy is akin to Government-sponsored terrorism these days … It was not a mistake that there was a huge security stand down on September 11 last year … I am SOLO. I will continue to disrupt at the highest levels … "

Jaysus! OK they are only allegations, but WTF haven't we heard mention of any of them (partly my fault for not taking the time to look I know)? Interesting to note that he also initially admitted the hack was for political reasons, but now maintains he was looking for UFO evidence.

We've also heard nothing of the observations by the High Court & the House of Lords - "gravity of the offences alleged against the appellant should not be understated: the equivalent domestic offences include an offence under section 12 of the Aviation and Maritime Security Act 1990 for which the maximum sentence is life imprisonment."

I'd agree about Jack of Kent being unbiased, he lays out the facts and then explains why he opposes the extradition.

I've got some reading to do tonight then!

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@Ben

I daresay the reason we've not heard anything of what they're accused of is very similar to the NatWest three case, in that no-one cares, they just presume that if America is involved the Americans are wrong and will punitively punish an innocent person. It's therefore not unreasonable to presume that no-one is actually interested in the facts of the case, just another opportunity to slag America and Americans off on the Internet. You can hardly blame the mainstream media, they are hardly going to be able to go into what he's done in detail, it's far too technical for most people to understand.

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Re: OK they are only allegations

Yes, and that's why it is very convenient indeed that the extradition treaty doesn't require the US to give the slightest hint of a proof...

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@ Ben

Wowsers, that article changes my mind about a few things too.

Notable that Gary pretty much admitted to the (substantially more serious) allegations under caution and forensic data released in court papers suggests the allegations would be difficult to deny. As Jack of Kent says, that doesn't prove the allegations - that's for the courts to decide - but in my opinion, it does paint a different picture than the popular media and many campaigners would have us believe.

Frankly, if I did that much damage to military systems, I would be bricking it. Purely from the perspective of bystander, perhaps the realisation of the scale of the alleged damage has added to his problems over the years.

I don't agree with Jack of Kent about custodial sentences not being a deterrent. On balance, it seems to me there is a case to answer in the US.

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"The campaign focused attention on US-UK extradition requirements, which critics argue are unfairly biased because US extradition requests need not be accompanied by any evidence"

Especially since this is factually untrue. The US uses different language for its evidence requirements - but that's all.

Further, since the US has refused NOT ONE of the UK's requests, whilst the UK has refused numorous US requests, the claim that somehow the US is getting the better of the deal is stupid on its face, and should embarass anyone who makes it.

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Jack of Kent unbiased? Don't make me laugh

The whole reason why people are opposed to this extradition is that the wild allegations made by the US prosecutors are without foundation, and the current legislation affords no protection from such false allegations. The extradition request relies upon the allegation of $5000 of damage caused per machine accessed. This allegation was shown in the High Court in July 09 to be unsubstantiated, and most likely false [cf the CPS Review Note Three and the forensic IT report of Prof. Peter Summer]. The 'critical files' McKinnon is accused of deleting turned out to be his own log files, the 'vital military installations' he's supposed to have shut down were not in fact shut down by him, and in any case were only responsible for ceremonial and administrative activities. The information he accessed was so 'top secret' that it was put on the internet without any protection. The $5000 of 'damage' turned out to be the cost of installing the firewalls and passwords that the US military were legally obliged to have installed in the first place! If you doubt how the government have exaggerated the allegations, never mind Jack of Kent, who clearly has his own axe to grind, and is highly selective in his analysis. Have a look at Mark Ballard's award-winning article for Computer Weekly.

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Number One - the only admission was Computer Misuse Level1 - a Summary Offence and not extraditable, hence not material to the extradition request. That admission was made without an Appropriate Adult present in any case, which renders it inadmissable as evidence. The extradition allegations have always been denied. His solicitors made an offer to admit Level3, but this was laughed out of court as so blatantly contrary to the evidence.

Number Two - the forensic IT report (which Jack of Kent for some reason omits to mention) shows that McKinnon caused no damage at all.

Number Three - without 'reasonable suspicion' that he caused the threshhold amount of damage, it is not an extraditable offence. That 'reasonable suspicion' was ruled out by the evidence presented to the High Court in 09.

Number Four - Why Jack of Kent fails to grasp any of this is anybody's guess. He had a very good reputation before he threw it away on this hatchet job on an innocent and vulnerable man....

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I could make an allegation that you'd raped, murdered and dismembered someone, if I wanted to. But that wouldn't make it true though, would it? Wouldn't mean you had a case to answer. lol

You're wrong to assume Jack of Kent is unbiased, when you clearly have no idea of the information and factual detail he's selectively leaving out, in favour of repeating ludicrous allegations that have been publicly shown to have no basis in fact. The reason some of these allegations are not mentioned elsewhere anymore is because proper journalists who check their facts know that these allegations are false and that repeating them amounts to defamation, not to mention prejudicing a fair outcome. Jack of Kent is an incompetent at best, as far as this case is concerned.

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Did Jack of Kent also include the Judge's response to the suggestion of trying McKinnon under the Aviation and Maritime Security Act? The response was, and I quote: "and pigs might fly".

Did the oh-so unbiassed Jack of Kent mention that? No, I thought not.

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@Titus

Interesting read that Jack of Kent, plenty of good links to follow, gotta agree there is a pretty damn good case for extraditing him.

What I don't get though is why it took them a 17 month investigation to find a guy who had effectively RDP'd to unsecured machines with blank administrator passwords? I can only assume they were connected on puclic IP addresses?

http://www.computerweekly.com/news/1280097145/McKinnon-charges-exaggerated-by-government

My eyes are burning, kinda got sucked into that blog

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@Titus Technophobe

I would also like to thank you for that link.

I am usually quite sceptical with regard to the press but I seem to have let my guard down over this issue. I still think he should be tried in the UK but considering the gravity of the accusations I do now understand why America is pushing so hard. People need a valid case to get the government to re-think this one sided extradition treaty but it would appear that isn't the one.

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Anonymous Coward

Paranoid, much! lol The facts of the case, in comparison to the allegations, speak for themselves.

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IF HE HAS COMITTED...

a crime here try him here, and I think that is the problem.

He would probably be aquitted if tried by a jury in this country as it should be, an opportunity in sticking two fingers up to the US for interfering in our judicial system.

This would cause untold problems with the 'special relationship' crap they keep feeding us.

Therefore they see the easier way out and send him on holiday.

If he goes, there will be an under the table agreement to keep him locked up while the trial takes place, then release him with a suspended sentence and undertaking that he does not touch a computer for a year or so.

Anything more than that we should tell them to get lost.

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>>"He did not admit to any terrorist activity - which is what the extradition agreement was intended for. "

Reading it

http://www.statewatch.org/news/2003/jul/UK_USA_extradition.pdf

the extradition treaty /seems/ to cover all extraditable offences, of which terrorism is only one.

What evidence do you have that the intention with the new treaty was that non-terrorist offences would no longer be extraditable offences, since that seems to be what you're claiming is the case?

If you actually meant something else, like "The new treaty was negotiated to make terrorist extradition easier" or "The new treaty was sold to the public/politicians on the basis that it would make terrorist extradition easier", that's not at all close in meaning to what you actually said.

"He did not admit to any terrorist activity - which is *one of the things* the extradition agreement was intended for" would be a very different statement.

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@Bill99

Given the JoK lays out his thinking, and still says that he doesn't believe Gary should be extradited I'd say he's probably fairly unbiased.

I don't think Gary should be extradited, but I do think that he (inc. legal team) have been playing the media somewhat. I've noted the points you've raised, but as the _only_ posts you have made on El Reg are in support of McKinnon I'm more likely to view the opinion of one who lays out his thinking.

It's more than possible that the allegations have been boosted somewhat. But you know what, if I accuse you of mass genocide and there's any possibility that it could be true it _has_ to be investigated.

Whether or not that should happen in the UK or the US is something entirely different. The fact that this is the first I've heard of the actual allegations raises questions in my mind about the reliability of the information coming from Gary's legal team (who were always going to be biased anyway!).

Re: Critical system files - Given the allegation mentions critical system files AND logfiles, I find it hard to believe that these are the 'critical' files mentioned.

Also, it would not be defamation to publish the allegations. It's reporting on the facts - i.e. he has been accused of this. Given the papers are more than happy to publish 'Joe Bloggs has been accused of kiddy fiddling' given half the chance, I find it highly unlikely they would hold back to save Gary's character. See same for prejudicing fair outcome.

All this still doesn't mean he is guilty but also doesn't mean he isn't. Even that is a seperate argument to where he should be tried. All we know is that important facts have been left out in reporting. Gary's supporters have been quite media friendly when rallying support (and who can blame them) but it does also reflect badly when you see that _very_ important (read: the actual allegations) have been left out. Especially, if you take at face value the assertion that he admitted it was politically motivated, compare and contrast to the current 'reason'

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"....Asperger's sufferer McKinnon would be a suicide risk if extradited to the US...."

Ah, poor ickle dear! I suppose it would be best, and for his own good, if we just have him Sectioned and sent to a nice, secure, prison psychiatric ward somewhere, so he can receive the treatment he seems to need.....

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And if he went to court in the UK, a doctor would asses him and if they felt it was necessay that's exactly what would happen.

Of course, if it's would be a suicide risk _IF_ extradited.... as it seems to be, then it logically follows he won't be a suicide risk if they don't extradite him.

Just a thought

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WTF?

@Matt

But he might then end up getting ECT for the rest of his life. Now would that be fair?

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Seriously!

WTF.

And his medical condition should have nothing to do with the fact he should not be extradited. This treaty is being abused beyond it's remit for political gain - and it will get worse (extradition for having a web-site with links to TV programs - that's what they're going for now).

The extradition treaty was agree for TERRORISTS - is he a terrorist? Is the guy with links to TV torrents a terrorist? And they wondered why people didn't believe the US gov.t about abusing the scope of SOPA (we will only use it for piracy sites - honest). Yeah, just like this is only for terrorists - honest.

You may not like the guy, but seriously you need to wake up to what is going on here.

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@AC 15:11

"The extradition treaty was agree for TERRORISTS"

No, the extradition treaty is for everyone, not just those charged with terrorist offences.

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The claim that Gary has developed 'an autistic fixation on committing suicide' were he extradited is basically saying 'extradite Gary and he'll top himself!'. I hold anybody who espouses such a thing beneath contempt.

People charged with crimes are suicide risks, and sometimes they attempt suicide. We do not, as a policy, reduce the severity of any punishment if a perpetrator attempts suicide, for it would only encourage more suicide attempts by others. Thus, if Gary succeeds in his aim of avoiding punishment a very dangerous precedent will be set.

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Mis-sold then.

Even if that is not what they actually wanted it for it was certainly sold to the public here as a necessary part of the WAR ON TERROR. Do you really think they would get it through parliament if they said it was desperately needed to combat UFO conspiracy theorists?

P.S. Our American friends wouldn't even allow US servicemen to be questioned in the UK during the friendly fire death inquests. So it seems unlikely they would actually allow extradition doesn't it?

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UFO Conspiracy theorist?

Would a UFO conspiracy theorist post the following message:

"US foreign policy is akin to Government-sponsored terrorism these days … It was not a mistake that there was a huge security stand down on September 11 last year … I am SOLO. I will continue to disrupt at the highest levels … "

Note the threat in the last sentence. Put that in a post 9/11 context and add in his disruption of services and deletion of data. One can easily see how the authorities in the US may come to the conclusion that there was a real and credible attack underway.

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UFO Conspiracy theorist?

"US foreign policy is akin to Government-sponsored terrorism these days … It was not a mistake that there was a huge security stand down on September 11 last year … I am SOLO. I will continue to disrupt at the highest levels … "

Anyone who claims to be Hans Solo is clearly under a misaprehension of some sort. ;-)

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Devil

RE: Ben Tasker

"And if he went to court in the UK, a doctor would asses him...." Strangely enough, all these claims of "mental illness", yet he seems to be quite happilly roaming the streets (and the Internet)....

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Extradition treaties

Extradition treaties are for all crimes not just terrorism. That's why Assange is going back to Sweden and McKinnon to the U.S.

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Big Brother

What they actually said the law was for

The official (written) reason given in the bill was "Serious" offences.

"The Extradition Bill is designed to introduce fundamental reform of the law of extradition,

which provides for the return of persons accused or convicted of serious offences, from the

United Kingdom to other jurisdictions and vice versa."

http://www.parliament.uk/documents/commons/lib/research/rp2002/rp02-079.pdf

Personally I would take that to mean 5 years+ from a court, but typical UK law is vague/contradictory on definitions, but under the powers of a criminal court (sentencing) act, it was defined as follows;

Attempted murder, conspiracy to murder, murder;

Soliciting murder;

Manslaughter;

GBH (section 18 OAPA 1861);

Rape and attempt rape;

Intercourse with a girl under 13 (section 5 Of the Sexual Offences Act 1956);

Possession of a firearm with intent to injure (section 16 FA 1968), use of a firearm to resist arrest (section 17 FA 1968) or carrying a firearm with criminal intent (section 18 FA 1968); and

Robbery where at the same time the offender was in possession of a firearm or imitation firearm

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Anonymous Coward

yes, especially considering not one terrorist has been extradited under it! and not forgetting the assurances given to US senators by the british government that UK would not seek extradition of IRA terrorists given safe harbour in the USA....

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'Dangerous precedent'? hardly!

No it won't. What a silly thing to say. Because each case is taken on its own merits. A precedent would therefore only be set for cases which match this highly unusual (if not unique) one in all the relevant respects.

And he's not trying to avoid punishment, it's always been made very clear that that is not the agenda here. He's asking for a UK trial, that's all - which is not unreasonable, considering that the grounds for extradition are very shaky to say the least.

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Anonymous Coward

a) Those are very heavily-edited quotes from what he actually wrote. He also said he's a friend of the American people, and that he's very worried for their sake about the lack of security on those computers. But in any case, have you read what you typed? The answer is yes!

b) You are interpreting those quotes from the perspective of a neuro-typical person. People with Asperger's don't always know how to communicate in the most diplomatic way, or understand how their behaviour may be interpreted by others. You simply can't assume any threatening intent, once you know the circumstances, however it may appear at first glance.

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@Magnus_Pym

>>"Even if that is not what they actually wanted it for it was certainly sold to the public here as a necessary part of the WAR ON TERROR. Do you really think they would get it through parliament if they said it was desperately needed to combat UFO conspiracy theorists?"

You seem to be taking a pretty black-white view of things there.

It's neither 'about' terrorism, nor 'about' conspiracy theorists.

It, like the treaty before it, is 'about' a whole range of crimes, though it specifies them by having a threshold level of seriousness, rather than a specific list of offences like the previous one.

That's a point I got wrong somewhere else (can't find the post at the moment, though I'll try to track it down and correct it).

Though hardly a point relative to the 'terrorism' angle. It's hard to see many MPs thinking that a change from an offence list to a 1 year sentence-length-threshold would be a major aintiterrorist tool.

(And it's not as if McKinnon is being charged with 'being a conspiracy theorist'. Rightly or wrongly, he's being charged for supposedly going into places he knew he had no right to go and allegedly causing damage. If claims of damage /have/ been exaggerated to reach a suitable threshold to qualify under the treaty, that's not the /treaty's/ fault)

Even if the changes from the 1985 US-UK treaty had been sold to politicians on the basis that they would make terrorism extraditions easier, it's not as if the treaty is so complicated that people couldn't read it before voting.

It's 15 pretty lightly-filled pages, with the meat of it being a few pages long, and it seems pretty obvious from reading it that it isn't just about terrorism.

If someone couldn't even be bothered to read it before voting, I think that would be rather more of a problem than how the changes may have been presented.

And as a member of the public, I don't remember it being sold to me /at all/, or it being an issue of concern in any particular election.

I'm not sure that *even now* it would be likely to be a major factor in the way many people would vote, even if some people are deeply concerned about it.

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lol if matt ever woke up he'd have ro realise what an insignifican wrong-headed dolt he is.

leave him in his own blissfully ignorant ikkle word why dont ya

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asbergers is not a mental illness.

it's a disability

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Terrorist extraditions....

this is a bit of a red herring. any fule kno that terrorists dont get extradited. they disappear in the dead of night, repear in egypt/lybia/saudi where they get the TA Edison interrogation to their nuts for a few weeks - just to establish the facts - then it's off to gitmo forever.

Why does the great satan need extradition treaties with anyone if thats their policy? if anything it just high lights the hypocracy of their own position i.e. harbouring their home-grown war criminals and terrorists irrespective of the crimes they commit, or indeed the evidence against them.

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FAIL

RE: Naughtyhorse

Lol! Listen to the child whining when he has not counter-arguments! I never cease to be amazed by the blind hatred spewed on here by the anti-Yank crowd. He can't explain why McKinnon should avoid being sent to a nuthouse if he really is too "unwell" to stand trial. McKinnon's obviously a menace and has admitted to criminal hacking for political ends (yeah, UFOs, tell me another one!). If he doesn't want to stand trial in the States because he is mentally unfit then he can get some treatment here in a secure unit. One where he can't get onto the Internet.

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@AC 00:43

You wrote "you can't assume any intent once you know the circumstances"

But that's the problem with the written word isn't it? Leave aside any additional communications issues Gary has, if you see something written it's not always possible to perceive the tone in which it was written.

Part of the thing to think about is that there are often indirect consequences to our actions. As an easy example;

- Gary gets onto a server and posts a message to the screen (let's ignore the content)

That's his action

- Server is taken offline for security check

That's a direct consequence of his action

- 2000 terminals reliant on that server are therefore offline

That's an indirect consequence of his action

- Lots of money is spent on securing the otherwise open network

Another Indirect consequence.

Look, what I'm saying is that as much as anyone can say "Gary only did this" the simple fact is, those indirect consequences would not have happened had he not. Yes, the DoD should have secured their systems properly, but you can't explain away one fuck-up with another.

There can't be many here stupid enough to believe that most other places wouldn't try and blame the resulting mess on the 'hacker' that penetrated their systems? I'm not saying it's fair, but as the chain of causality is there, there's a good chance it's a tactic that'll be agreed by a court.

All that said, I'm still undecided as to whether or not he should be tried in the UK or in the US. I lean towards the former though, but obviously that's without even considering possible medical evidence.

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Asperger's is not a disability

Asperger himself defined it as "the extreme end of normal male behaviour". Note the word "normal" in there. Most aspies function perfectly well in society - and, let's face it, most of modern science and It wouldn;t exist without them.

Mr McKinnon's decision to claim that people with Asperger's are compulsive, untrustworthy security risks has not been a helpful move.

Oh, and read up about the medical and social models of disability, will you.

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lol

looks like i fed the troll

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Anonymous Coward

10 years?

Isn't there a Statute of Limitations on this?

Obviously not.

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Charges were >brought< 10 years ago, so the statute does not apply. In any case it is Gary who has been holding everything up.

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What rubbish!

Ten years ago when charges were brought, the CPS decided not to prosecute because, according to the head of the High Tech Crime Unit, they had been told 'from the top' to 'stand aside, because America wanted him'. Charges were dropped. A further three years then passed, and it was only after the new extradition act came into force, removing the requirement for prima facie evidence, that the extradition request was issued.

And then in May 2010, the Home Secretary herself adjourned the Judicial Review in order to consider the evidence. The submissions requested by the Home Secretary were then received by the 8th June deadline as requested, and since then, she has sat on her proverbial, scraping the barrel for lame excuses not to act on her Section 6 obligations. It's been 18 months.

You can hardly say it's >Gary< who has been holding everything up.

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Anonymous Coward

Well, they waited three years after the alleged offence to request extradition in the first place. Had they made the request in a timely manner, of course, they'd have had to provide evidence for their allegations. Coincidence?

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@Bill99

>>"Ten years ago when charges were brought, the CPS decided not to prosecute because, according to the head of the High Tech Crime Unit, they had been told 'from the top' to 'stand aside, because America wanted him'. Charges were dropped."

Which charges were brought and subsequently dropped?

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Anonymous Coward

After he is sent to the U.S. for trial...

...they should add ten years on to his prison sentence for manipulation of the judicial system and public opinion. His Mum should get a stern tongue lashing for being in denial and orchestrating an invisible illness to help her son try to escape accountability for his hacking crimes. These two are an insult to those suffering from Asperger's and a disgrace to society.

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After he is sent to the U.S. for trial...

Yes and after that they can actually try him and find out if he is guilty or not.

The problem is not the extradition but the terms. No evidence has been presented so he cannot counter defend himself and on the face of it the claims seem a bit unlikely.

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