Shortly after 12.30pm on 16 October, Home Secretary Theresa May announced her decision to block the extradition of Gary McKinnon to the United States. For Mr McKinnon and his many supporters, the decision represents a remarkable and hard-fought victory. But once the euphoria evaporates, what is the likely long-term impact of the decision?
In standing up to the UK’s closest diplomatic ally, Ms May’s decision was certainly brave. The decision was also politically shrewd, at least in domestic terms. Mr McKinnon’s case had become the paradigm example of what critics from all political parties (and the British public at large) consider to be an unfairness at the heart of our extradition laws. But it is difficult to believe that many others will ultimately benefit from the decision.
Optimists may point to the fact that Ms May announced that a new “forum bar” will be brought into force. This will empower a judge sitting in open court – rather than prosecutors behind closed doors – to take the decision about where an extradition case should be prosecuted. This development is long overdue. It should increase public confidence and understanding about jurisdictional decision-making in cross-border investigations.
But it would be a mistake to assume that this will lead to a spate of extradition requests turning into domestic prosecutions. Sir Scott Baker’s exhaustive review of our extradition laws observed that the judges at Westminster Magistrates Court (where all extradition cases are heard at first instance) could not think of a single case already decided under the Extradition Act 2003 in which it would have been in the interests of justice for it to be tried in the UK rather than the requesting state. The practical impact of the forum bar is thus uncertain to say the least.
Apart from the forum bar, Ms May used the announcement on Mr McKinnon to bury news which would be less welcome to his supporters – namely, no renegotiation of the UK-US extradition treaty, and no introduction of the requirement for prima facie evidence from the US or any other requesting state not currently required to provide it. Ms May then announced, apparently with no hint of irony, the removal of the Home Secretary’s discretion to decide human rights issues in extradition cases, thus stripping herself of the power she had just exercised to save Mr McKinnon.
Mr McKinnon’s case may ultimately come to be regarded as a remarkable last gasp for the role of the Executive in complex extradition cases – a case that sets no meaningful precedent and which turns on its own exceptional facts. It is to be hoped that, in future, the judiciary take a similarly robust stance to protecting individuals at risk of human rights abuses.