Dear Jacqui Smith,

We are writing regarding Gary McKinnon, for whom the US authorities have made an extradition request for offences related to access to US government computers which you have discretion to agree or refuse. We believe that there are solid reasons for denying the extradition request and for Mr McKinnon to be charged and tried in this country, if appropriate, for any offences he has committed here.

We would ask you to consider that it would be oppressive to extradite Mr McKinnon, a man diagnosed with Asperger Syndrome, without undertakings from the US authorities as to his treatment. We understand that full information on his health status was not available to the District Judge or the High Court when reaching their decisions as the diagnosis was only made in August 2008, but it is now available to you.

Given that the US authorities have chosen now to categorise Mr McKinnon's behaviour as (cyber-)terrorism, there is a real risk of him being detained, both pre-trial and in the event of a conviction, for a long time in a 'Supermax' high security prison. The suitability of such detention in a case of a computer hacker with no previous criminal history and who cannot be considered a future risk may be questioned in any case. But we would ask you in particular to consider whether, given his vulnerability due to his condition, such detention may well breach the ban on inhuman treatment in Article 3 of the European Convention of Human Rights. We would ask if you have you sought clarification from the US authorities as to the availability at least of pre-trial bail for Mr McKinnon?

It seems that no pledge has been secured from the US authorities that he would be repatriated to serve any term of detention in a British prison. Can you clarify if you have asked for but been refused such an undertaking, or if you have not done so and your reasons for such inaction.

There was a gap of over 2 years from the date of arrest (March 2002) to the date of the US extradition request (October 2004). This calls into question the seriousness of Mr McKinnon's alleged crime and/or raises questions about the plea-bargaining process that took place in the intervening period when the US sought from Mr McKinnon a guilty plea and a waiver of his statutory extradition rights in exchange for a more lenient sentence and repatriation for sentence. Mr McKinnon however refused to agree to this bargain.

It is indeed an extraordinary feature of this case that in 2002-3 the US authorities in seeking voluntary surrender through a plea bargain indicated the likelihood of a 3-4 year sentence for non-terrorist offences and speedy repatriation to the UK (with early release under favourable UK remission rules), but after exercising his right to resist extradition the defendant is faced with a possible 45-60 year prison sentence without parole for terrorism and no repatriation.

The coercive tactic of threatening a defendant with a substantially longer prison sentence for not agreeing to forgo the statutory right to contest extradition given to him by Parliament must surely be contrary to the tenets of any fair legal system. We believe that it amounts indeed to an abuse of the extradition process and can only agree with the High Court, which described the threat of withdrawing repatriation if Mr McKinnon refused to surrender as "anathema" and viewed the way the US authorities conducted plea bargaining with Mr McKinnon in London with "distaste". The fact that the charge against Mr McKinnon changed from non-terrorist to terrorist offences after he refused voluntary surrender is also part of this exercise in coercion.

We submit that you should show by refusing extradition that you will not tolerate this abuse of the English judicial process through coercive plea bargaining by the US authorities, which surely has no part in our extradition process. At the very least you can demonstrate your rejection of these oppressive methods by demanding an express assurance of repatriation; since the offer of repatriation was previously used as a bargaining tool by the US authorities, they cannot claim any objection of principle.

We are asking not only for a refusal of this extradition but also that an immediate stay be put on this (and all) pending extraditions of UK citizens until both the forum amendments of the Police & Justice Act are enacted and express assurances are obtained from requesting countries of immediate post-trial/sentencing repatriation to the UK, in accordance with the principles of the European Treaty on transfer of prisoners (to which the US is a signatory).

We look forward to a response from you which would uphold Mr McKinnon's human rights and see him punished as appropriate in this country for any offences committed.

Yours sincerely,

Chris Huhne MP, Liberal Democrat Shadow Home Secretary Sarah Ludford MEP, Liberal Democrat European justice spokeswoman

The forum amendments (set out in paragraphs 4 to 6 of Schedule 13 to the Police and Justice Act 2006) have not yet been brought into force. In terms of time-scale, under paragraph 6 of the 2006 Act the forum amendments were not capable of being brought into force until at least 12 months after the date on which the 2006 Act was passed. This 12 month period expired on 8 November 2007, although there has not so far been any move to bring the amendments into force.

In December 2007 Jacqui Smith indicated that the Government did not have any plans to implement the forum amendments set out in the 2006 Act:

http://www.publications.parliament.uk/pa/cm200708/cmhansrd/cm071203/text/71203w0008.htm#07120329000991

A similar answer was given by Lord West of Spithead in February 2008:

http://www.publications.parliament.uk/pa/ld200708/ldhansrd/text/80220-0002.htm#08022081000010