Over two days in court, McKinnon's defense team presented new evidence that it said meant the judges should reject his extradition to face charges of breaking into and damaging U.S. government computers.
The Court of Appeal is the court of last resort under U.K. law, and usually it will only find for or against the appellant. But the defense argued on Tuesday and Wednesday that evidence brought to light by the McKinnon case raised serious questions about the U.S. government's case.
Gary McKinnnon
The defense has urged the Court of Appeal to consider referring McKinnon's case back to the U.K. government, or to allow a further appeal to the European Court of Human Rights, if it will not reject the extradition outright.
The evidence centered on what was or was not said to McKinnon when he was being offered a plea bargain. More well-known in the U.S., and now also used on an informal basis in the U.K., a plea bargain is when the prosecution offers a reduced sentence or other incentive, in return for a defendant's agreement to cooperate.
In this case, if McKinnon agreed to cooperate with them, the U.S. authorities said they would agree to a reduced sentence of three years or less. They would also let him serve the sentence in a U.K. prison and not in an American "super high-security prison," as Edmund Lawson, a lawyer appearing for McKinnon's defense, put it.
All parties appear to agree on that part of the description of what happened. But what was said next became the main source of controversy in court. According to McKinnon and his counsel, a U.S. member of the prosecution team then "threatened" McKinnon that if he did not agree to the bargain, they would push for the highest possible penalties and that he would be "turned over to New Jersey authorities to see him fry."
And the defense further alleged that the U.S. said that if McKinnon did not agree to the deal, there would be no chance of his serving his sentence in the U.K. near his friends and family.
This quickly became known as the "fry" statement. The defense said it could be taken to mean a threat on McKinnon's life, should he be handed over to New Jersey rather than Virginia, the two states where McKinnon was alleged to have damaged IT systems.
In fact, if it was a threat, it may be something of an idle one. Although both states have the death penalty, New Jersey has not executed anyone in 20 years, while Virginia is still active in executions. In any case, under European law, McKinnon cannot be extradited from the U.K. to the U.S. if there is a risk of execution.
Despite this, Lawson argued that the overt nature of the threat was an infringement on McKinnon's human rights. If so, it could be a matter for the European Court of Human Rights, as could be the threat to withdraw the possibility of serving his sentence in the U.K.
The prosecution lawyer, Max Summers, dismissed the points immediately. None of the evidence on the "frying" allegation could be allowed into court since any words spoken during the alleged offer were only done so in confidence, he said.
There is no automatic right for an extradited prisoner to serve a sentence back in his own country and the majority do not, especially those extradited from the U.K. to the U.S. As it was, the U.S. was in no position to refute the allegations over "frying," since none of the relevant American staff involved are currently in the U.K., let alone in court this week.
If this evidence was to be considered at all, Summers argued, then the U.S. government would need notice and time to get witnesses organized, and so a recess would be required.
The defense and prosecution teams and the two judges hearing the appeal discussed the legal consequences of taking the McKinnon case into new legal territory for an extradition hearing for an hour. The court was adjourned at 4:20 p.m. on Wednesday for the Appeal Court judges to consider the options.
They could find in favor of the U.S. authorities, meaning McKinnon would soon travel to the U.S., or they could uphold the appeal and allow McKinnon to go free. Alternatively, they could refer the case back to British Home Secretary John Reid, who decided in July 2006 that the extradition should go ahead, or reject McKinnon's appeal but allow a further appeal to the European Court of Human Rights. A decision is expected next week.
McKinnon himself did not attend the appeal, and saw a doctor on Wednesday following heart palpitations.
Colin Barker of ZDNet UK reported from London.
