Gary McKinnon, the hobby hacker who is fighting against a US extradition order, has pulled a legal wild card on his accusers in bid to face trial at home.
In the court of appeal yesterday, McKinnon's lawyers made reference to discussions that have been kept secret since 2003 when a plea bargain was considered, said Karen Todner, McKinnon's lawyer.
"We went for a plea bargain," said Todner, "The Americans said, if he pleaded guilty and didn't oppose the extradition he would get a much shorter sentence of three or four years - as opposed to ten or twelve - and he would come home within six to twelve months to serve the rest of his sentence."
McKinnon was adamant that he wanted to face trial in the UK and refused the bargain, yet agreed with the US that the deal should be kept secret and never drawn out and used in any subsequent court hearing.
However, said Todner, US prosecutors exhumed the plea bargain and put it before judges during his extradition hearing last year. So as far as the defence was concerned, it was fair game to use the bargain in his appeal.
The plea bargain is useful for McKinnon's appeal, said Todner, because of Cobb v. U.S.A., which in 2001 found that coercing someone into extradition would infringe their human rights.
The US bargainers had done just that, Todner told The Register: "They said, 'if you don't go voluntarily we'll go for the maximum sentence and you won't be repatriated. That, we argued, is a breach of his human rights."
McKinnon has been feeling the pressure of the trial and stayed away from yesterday's appeal hearing due to illness. His blog quoted a ZDNet story that reported heart palpitations and a hospital visit.
"It's been going on for five years now," said Todner, "If he'd been sentenced here he'd be out by now. It's had a traumatic effect on his life, with the pressure of facing a phenomenal sentence in the US."
Lords Justice Goldring and Kay will pronounce judgement on McKinnon's appeal against extradition next week.®