GeekLawyer’s Blog

Geeklawyer notes, via Out-Law, that McKinnon has persuaded the Administrative Court to certify to questions to the House of Lords: a) was the American coercion applied to him to get him to ‘voluntarily‘ yield to extradition to the US on pain of not being repatriated to the UK to serve part of his sentence here improper?

b) was the diplomatic note that he would not be bunged into Guantanamo worth a damn?

Readers may recall McKinnon was the nut job who hacked the Pentagon’s computers looking for evidence of UFOs lizardmen and other such tosh. But who the US claims did $700k worth of damage.

Claims of the cost of such damage are usually grossly exaggerated in the same manner as occurs when the *IAA claim that illegal music downloading causes billions in loss or when cops do a press release for the papers on a drugs bust and exaggerate the value to make themselves look good.

Geeklawyer has no idea on the second point. It would seem to balance on the power of executive discretion public international law (Martin?) and the view of Common Law on diplomatic promises. Pass.

On the first point however there is certainly an nasty and unpleasant abuse of power going on. It would seem unarguably right not to allow any decision based on such coercion to be used to his prejudice. Had he agreed to extradition and then resiled it would be unconscionable to hold him to the promise. But there was no such promise here so the argument, in effect, that “these are nasty men so they must not be allowed to take him” seems very weak.
The proper basis for taking prejudice from this conduct is a ‘fruit the poisoned tree’ doctrine variant: that the highest standards of probity require that those who choose such methods cannot be allowed what they wish where some connected behaviour falls below a certain standard; and even if the malevolent behaviour was not responsible for the result which would have otherwise been proper.