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Update: DPP has insufficient evidence to prosecute McKinnon in UK

The notification from the DPP was made in spite of McKinnon indicating that he would plead guilty to an offence under S2 of the Misuse of Computers Act.

According to the extradition act 2003, the United States do not have to provide a prima facie case when requesting a trial. Todner stated that “It’s disappointing that the DPP has not requested the evidence from the United States Prosecutors prior to making this decision.”

According to Todner, McKinnon will remain in the UK as the judicial review proceedings against the Secretary of State remain outstanding. “We are hopeful that those proceedings will be successful,” she said.

"I'm heartbroken at the lack of compassion shown towards my desperately vulnerable son," sais Janis Sharp, McKinnon's mother who is heading the campaign against his extradition.

"Gary is a gentle man with Aspergers - not a dangerous terrorist. His obsessions led him to search US computer systems.  Wrong, yes, but extraditing him to a high-security prison knowing he won't survive - surely no-one can honestly believe that punishment fits the crime?

"When will the UK stop hiding behind treaty obligations to the US and let humanity, common sense and decency prevail?  Perhaps one day the realisation of these decisions will dawn.

"We've suffered an agonising 7 years which has ruined the lives and health of my family.  Somebody somewhere please wake up - and realise the extradition of even one vulnerable person cannot be a price worth paying to save the US government's embarrassment.

"Our last hope now lies with the judges hearing the Judicial Review."

January 23:

'NASA hacker' Gary McKinnon has won permission from the High Court to apply for a judicial review against his extradition to the United States.

"I cannot believe it, I'm thrilled," Janis Sharp, McKinnon's mother, told Infosecurity. Sharp has been leading the campaign to allow McKinnon to be tried in the UK after his diagnosis with Asperger's syndrome.

According to Sharp, the judge who granted permission for the review had previously ruled against McKinnon. "We walked in and thought 'there's no hope,'" she said.

The judicial review is due to take place mid-March. Also, the director of public prosecutions, Keir Starmer QC, is currently making a decision on whether McKinnon may be tried in the UK.

"Now there's real hope," declared Sharp. "I hope it helps other people facing extradition."

Sharp has spoken out against the 'one-sided treaty' that allows the US to take British citizens for trial without proof. She also declared her relief that President Obama is apparently making a stand against the Detention Camp of Guantanamo Bay, following early fears that McKinnon may serve a sentence there.

January 16:

At the time of writing, the NASA hacker Gary McKinnon, who reportedly perpetrated the biggest military hack on record, was awaiting a decision from the Crown Prosecution Service on whether a recent signed confession, along with his diagnosis with Asperger’s syndrome, would help him to avoid extradition to the US and a potential 70 year prison sentence.

At a press conference yesterday, arranged to encourage media attention on the controversial case, McKinnon’s solicitor, Karen Todner, stated that she had requested that McKinnon’s judicial review be adjourned, due to take place at the High Court on 20 January– coincidentally the date of Barrack Obama’s inauguration - pending a decision from the director of public prosecutions, which was expected to be made within four weeks.

"If that fails, we really have come to the end of the line," said Todner. "Gary would then be extradited within the next 10 days."

McKinnon is accused of hacking into over 90 US military and NASA computers between 2001 and 2002. Originally arrested under the Computer Misuse Act by the UK National Hi-Tech Crime Unit (NHTCU) in 2002, McKinnon was informed he may face community service. The Crown Prosecution Service however refused to charge him. He was later indicted by the United States government.

“In my view I can see no reason why Gary should not be prosecuted in the UK,” commented Todner, stating that she believed the US wished to prosecute McKinnon “firstly to make an example of him, and secondly because they believe the British Justice system would not properly deal with him.”

McKinnon reportedly caused damages comprising the costs of tracking and correcting the problems, to the sum of £470 000 ($700,000) - allegedly £3370 ($5000) damage in each machine - which he has always denied.

So why claim such damage was inflicted? Todner explained to Infosecurity that “[The US government] has to show a certain level [of damage] before they can make federal charges, so that’s why a certain level of damage has been alleged.”

Todner recalled that she was informed that the damages “took into account issues such as the cost of the labour of people to fix it,” and asked rhetorically, “How long can you stretch it, really?”

Regarding suitable prison sentences for such a crime, Todner told Infosecurity that

“Normally in this country if you pleaded guilty to an offence…under the Misuse of Computers Act, you’d be looking at a prison time of two and a half years…but you’d have to take into account Gary’s diagnosis with Asperger’s syndrome.”

McKinnon was joined at the press conference by his mother and campaign organiser, Janis Sharp, Mark Lever, CEO of the National Autistic Society, MP David Burrowes who stated that the hacker had “support from throughout the house of commons”, James Welsh, legal director of human rights organisation Liberty, barrister Ben Cooper and psychiatrist Professor Simon Baron-Cohen who diagnosed McKinnon with Asperger’s.

McKinnon was diagnosed after a television interview when a member of the public believed he showed signs of the condition. Professor Baron-Cohen explained that despite being on the autistic spectrum, the condition had its own peculiarities:

“In Asperger’s the individual has normal language and good intelligence – in Gary’s case, the social naivety that is very common in Asperger’s syndrome and not realising the social implications of his actions.” Baron-Cohen also indicated the obsessive tendencies involved; in this case, “Gary’s obsession, not only with computers but with the search for truth. People with Asperger’s try to… find all the details of facts and confirm that it is true. It can bring a sort of ‘tunnel vision’ so that in their pursuit of truth, they’re actually blind to the potential social consequences for them or for other people. Asperger’s is a developmental condition…It’s not unusual for people with Asperger’s syndrome to be overlooked in childhood, to be overlooked in adolescence and only get their diagnosis in adulthood.”

It’s thought that the syndrome can be exacerbated by stress or a life-changing event, and McKinnon’s arrest is being viewed as one such trigger.

“Someone with Asperger’s syndrome would find it very hard to tolerate a prison environment,” said Baron-Cohen maintaining that the hacks were “the activity of someone with a disability rather than criminal activity.” He added that “Over and above the social naivety, many people with Asperger’s…suffer difficulties such as depression and anxiety, and prison life might just make things worse for him

When questioned if this meant that McKinnon did not know the difference between right and wrong, the psychiatrist responded that McKinnon believed that “what he was doing was right – because he was trying to uncover truth, and he believed the pursuit of truth was the right thing to be doing,” observing that McKinnon had “a different notion of what is right.”

“I did feel at the time that it was morally correct,” admitted McKinnon. “And sometimes people do have to break the law to do something that feels right.”

“He was searching for UFOs,” explained his mother, Janis Sharp. “He was searching for free energy.” Sharp stated that McKinnon did leave notes commenting on state-sponsored terrorism “which half the world believes rightly or wrongly,” but stressed that “It’s a cyber peace process, cyber graffiti, nothing more. But unfortunately, to try to turn someone into a terrorist because you’re looking for a terrorist, because you’re looking for someone to put up as an example for computer crime, then I think that because Gary admitted the computer misuse, they thought he was a soft touch. The fact that Gary admitted it without a lawyer being present shows his naivety.”

Referring to McKinnon’s signed confession, Sharp questioned “Why does there need to be a trial? Why does he need to be extradited? Why can’t he be sentenced here?”

The saga has apparently been taking its toll on McKinnon.

“I’m on beta blockers at the moment,” he said. “I’m extremely stressed. I’m very controlled, which is probably not a good thing, but inside the fires of hell are burning.”

McKinnon had attracted accusations that he may be a terrorist or terrorist sympathiser, and left a note on one computer saying:

“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.”

When interrogated over his motivations, with hacks being carried out shortly after 9/11, McKinnon responded:

“I understand the allegation. I also understand that politicians love to use 9/11 emotively. I think that’s an insult.”

Infosecurity asked whether McKinnon believed the US military sites should, to some extent, share culpability, as according to reports, he hacked into the systems with little difficulty.

“Security was non–existent – there were no passwords, no firewall,” he replied. “I didn’t even have to crack passwords – they had blank passwords. Heads should be rolling.”

He also said how some believe he has effectively performed a service for the US, and that the US military should be grateful it was him who hacked in “and not Al Queida”.

When asked by the Australian Broadcasting Company (ABC) what his original motivations were, he replied:

I was working from a book by the Disclosure Project….All of these men and women from military, government backgrounds…and they all said that UFOs were real, [that] they were from other planets, some had crashed or [the US military had] shot some down. They reverse engineered this technology…I felt that these men and women being so serious and so credible, must be telling the truth so I decided to look for it.”

He maintains that he found evidence of UFOs, but that he “didn’t find evidence of free energy or the advanced technology you might get from that.”

McKinnon finished by assuring Infosecurity that he would not condone anyone else looking for ‘the truth’ through illegal means.

“Not in the way I did. No. They should use legitimate channels…I certainly don’t advise anyone to hack.”

During the press conference, Sharp, made appeal to the secretary of state for justice:

“Jack Straw stopped the extradition of Pinochet, he stopped the extradition of an accused IRA terrorist, and is currently considering pardoning someone who has been convicted of murder in Europe. I would like to ask Jack Straw to pardon Gary. His alleged crime is nowhere near as serious.”

Todner has also asked for a pardon from President Bush in these final days of his administration, however “because he is not an American citizen, Gary cannot apply for a pardon from President Bush. I have written to our foreign secretary David Milliband and asked him to approach President Bush on either a formal or informal basis to ask him for a pardon for Gary…I’m hoping to get a response to that shortly.”

In June 2005, shortly after the UK had implemented a new extradition treaty with the US, McKinnon became subject to extreme bail conditions.

In July 2008 he lost his appeal in the UK's House of Lords, and in August of the same year, lost an appeal to the European Court of Human Rights.

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