UK prosecutors, cops ponder new probe into NASA hacker McKinnon

Lawyers, plods to meet following 'preliminary enquiries'

UK criminal prosecution lawyers will meet cops this month to decide whether or not to open a new investigation into Pentagon-hacking Brit Gary McKinnon.

Last month Home Secretary Theresa May withdrew an extradition order against the 46-year-old on medical and human rights grounds. Five psychiatrists warned there was a risk the Scot, who suffers from Asperger Syndrome and depression, would kill himself if extradited to America. US authorities want to put McKinnon on trial and jail him for infiltrating US military and NASA computers in 2001 and early 2002.

May said UK prosecutors will review whether McKinnon, who lives in north London, can be tried in Britain. It is understood a meeting between the Crown Prosecution Service (CPS) and Met police officers regarding his case will take place at the end of November.

It's curious that the CPS is mulling a "new criminal investigation" when the high-profile case has been played out in public for years: McKinnon has repeatedly appealed against the American extradition request in court and took his fight all the way to the House of Lords in June 2008.

His mother Janis Sharp fears the "new investigation" may defeat restrictions on how long after the fact a prosecution for computer hacking can be initiated.

"Hopefully the CPS are not now including the Met ‘to investigate’ so that they can pretend it’s new facts from a new investigation so that they can bypass the three-year statute of limitations," she said today.

McKinnon was arrested in March 2002 by officers from the UK's since disbanded Hi-Tech Crime Unit. His case was put on hold until US extradition proceedings began in 2005. McKinnon's family and supporters fought a fierce and ultimately successful campaign against extradition. The campaigners argued that McKinnon ought to be tried in the UK.

Sharp told El Reg that UK prosecutors have consistently refused to take up the case, even when the McKinnon team offered CPS lawyers a signed confession.

"A UK trial is what we fought for ten years and is what the CPS refused us for ten years as they said they were unable to prosecute Gary as they didn’t have the evidence required," she explained.

"After a judicial review in June-July 2009 against the CPS in which we tried to force a UK prosecution to take place, Lord Justice Stanley Burnton agreed with the CPS that the CPS were wholly justified in refusing to prosecute Gary in the UK.

"It would therefore be a spectacular turnaround if the CPS suddenly decided they could prosecute after all."

'This could have saved us 10 years of misery'

The McKinnon case prompted changes to the US-UK extradition procedure, which critics argued was one sided because stateside authorities need to show only "reasonable suspicion" while UK extradition requests to the US need to be backed up by prima facie evidence. The McKinnon case marked the first time a Home Secretary has intervened since the controversial US-UK extradition mechanism was put in place in 2003.

Blighty's courts will soon be allowed to decide whether to assert jurisdiction over a case before processing an extradition request, a procedure known as a "forum bar". Such procedures, had they been available years ago, could have saved the McKinnon family a decade of stress and frustration.

"If this was the case it would mean they could have prosecuted Gary in 2002 and saved our family more than 10 years of absolute misery which has destroyed Gary’s life and caused his mental health to deteriorate further, and has all but ruined our lives too," Sharp said.

McKinnon, who admits he accessed US government computers in search of evidence for UFOs, disputes the level of damage the Americans estimated he caused.

"The Crown Prosecution Service and Metropolitan Police Service have agreed to form a joint panel to decide whether a new criminal investigation into the allegations against Gary McKinnon should take place," a CPS spokesperson told V3.

"It is proposed that the panel will convene in late November once some preliminary enquiries have been made by both the CPS and the MPS [Metropolitan Police Service]." ®