McKinnnon, O’Dwyer and Assange – different strokes for different folks

There’s been a lot on various social media networks recently which links the extradition cases of Gary McKinnon, Richard O’Dwyer and Julian Assange. I don’t think this is actually as helpful or valid as it might seem at first glance.

Gary McKinnon, of course, has recently won his fight to avoid being extradited to the US on charges of hacking. I think that’s the right result, and I’m pleased that the Home Secretary has made that decision. However, I don’t think it’s quite the victory for justice that is being trumpeted.

Laywer and journalist David Allen Green makes a very strong case for the underlying justness of McKinnon’s extradition request. I’m not a lawyer, so I’m in no position to offer a detailed critique of Green’s argument, but it seems to me to be fundamentally sound. McKinnon’s actions meet all the criteria for extradition, including the fact that the victim was located in a different country and he was directly targetting them. The reason that McKinnon isn’t on his way to the US for trial isn’t because he committed no alleged offence against US interests, but because he has been deemed unfit to travel for trial on medical grounds.

As such, that’s not so much a victory for justice as a victory for mercy. I still think it’s the right decision, and I’m glad that McKinnon won his case. But it isn’t as clear-cut as some of his supporters suggest.

Having said that, I do agree that the UK is a more appropriate forum in which to prosecute McKinnon, and I hope that he is now prosecuted here. On the facts of the case as reported in the media, it does seem clear that he has probably committed an offence under the Computer Misuse Act, and this is something which needs to go before a court. The initial error made by the UK authorities was in not prosecuting the case straight away, and instead leaving it to the US to seek extradition. That should not have been allowed to happen.

Richard O’Dwyer’s case is entirely different. Although extradition is being sought by the US, there is very little evidence to suggest that any crime took place in the US. Even if a crime was committed at all (and there’s a very strong argument that it did not – at least one similar case in the UK resulted in a not guilty verdict), the mere fact that some US corporations were among the very many alleged victims does not give the US jurisdiction over the case. O’Dwyer’s crimes, if indeed they were crimes at all, were committed within the UK against a wide range of corporations all around the world. Why should the US be the one to prosecute? Why not Australia, or Japan, or China? Or, for that matter, the UK?

It seems clear to me that the appropriate forum for any prosecution of O’Dwyer is England, where his alleged offences took place. The fact that some alleged victims were from outside the UK does not, alone, make it suitable for extradition. To use an analogy (albeit a rather unpleasant one, but it’s the nearest I can think of at the moment), extraditing O’Dwyer to the US is like suggesting that, if and when he is found, the “Alps Massacre” killer should be prosecuted in the UK because some of his victims were British. That’s so obviously wrong that nobody would even dream of making that argument. The crime took place in France, and, if and when the perpetrator is caught, it will be prosecuted in France. O’Dyer’s alleged offences are considerably less serious than that, of course, but the same principle applies. His crime was committed in the UK, and the nationality of his victims doesn’t have any bearing on that.

Julian Assange’s case is different again. Unlike McKinnon and O’Dwyer, he was not in the UK when he committed the alleged offences. Nor were any of his victims British. He is alleged to have committed offences against Swedish nationals, on Swedish soil. There is, therefore, no question that Sweden is the appropriate jurisdiction for any prosecution. The UK has no interest in the case; no crime has been committed in British territory or against British victims.

The arguments, such as they are, against Assange’s extradition have nothing to do with where the alleged crimes were committed or which country has jurisdiction over them. I’m not going to address those arguments here, mainly because I consider them to have been so effectively refuted elsewhere already (Here’s David Allen Green, again, on the subject) that there’s little point in me doing so. But even those making them are not arguing that Assange should be prosecuted in the UK for rape and sexual assault. Their case is either that Assange should not be prosecuted at all, since he’s far too important to be prosecuted, or that he shouldn’t be extradited to Sweden to be prosecuted because if he is then Sweden will in turn extradite him to the US. The fact that those two arguments are themselves not entirely consistent is maybe a matter of note, but either way they are completely different arguments to those made by supporters of McKinnon and O’Dwyer. And I think that attempts by Assange’s supporters to try to link their man’s case to that of McKinnon are both disrespctful to Gary McKinnon and his family and a blatant attempt to blag some entirely undeserved sympathy by association. The sooner Julian Assange is facing his accusers in a Swedish court, the better.