West Law Report

Plea bargain offer not an abuse of due process

Posted in House of Lords (case), Times Law Report by mrkooenglish on August 8, 2008

From The TimesAugust 6, 2008

Plea bargain offer not an abuse of due process
McKinnon v Government of the United States of America in the House of Lords

House of Lords

Published August 6, 2008

McKinnon v Government of the United States of America

Before Lord Scott of Foscote, Lord Phillips of Worth Matravers, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury

Speeches July 30, 2008

A plea bargain offered by a foreign prosecutor to an accused person whose extradition was sought, particularly if offered during a regulated process of plea-bargaining, did not constitute an abuse of process unless it was so extreme as to amount to a threat of unlawful action which imperilled the integrity of the extradition process.

The House of Lords so held, dismissing an appeal by the defendant, Gary McKinnon, from the dismissal by the Queen’s Bench Divisional Court (Lord Justice Maurice Kay and Mr Justice Goldring) (The Times April 19, 2007) of his appeal from:

(i) a decision of District Judge Nicholas Evans at Bow Street on May 10, 2006, to send his case to the Secretary of State for the Home Department on the ground, under section 87 of the Extradition Act 2003, that his extradition to the United States of America would not be incompatible with his human rights, and

(ii) the Home Secretary’s decision of July 4, 2006, to order his extradition at the request of the Government of the USA on offences alleging that between February 1, 2001, and March 19, 2002, he had gained unauthorised access to 97 US Government computers.

Mr David Pannick, QC and Mr Ben Cooper for the defendant; Mr Edward Fitzgerald, QC and Mr Joseph Middleton for Liberty, intervening; Miss Clare Montgomery, QC and Mr Mark Summers for the US Government.

LORD BROWN said that the defendant was a British citizen aged 42, who, through his home computer identified US Government network computers, extracted the identities of certain administrative accounts and passwords, and installed unauthorised software which enabled him to access and alter data upon the US computers. He then deleted data from the 97 computers, including computers of the US Army, US Navy, US Air Force, NASA and the Department of Defense.

The defendant’s conduct was alleged to be intentional and calculated to influence the US Government by intimidation and coercion. The cost of repair was alleged to total US$700,000.

Analysis of the defendant’s home computer confirmed those allegations. During his interview under caution he admitted responsibility, although not that he had actually caused damage.

Before the request for extradition, communications took place between the defendant’s legal representatives and the US prosecutor during which it was indicated to the defendant how much better a deal would be available to him if he went voluntarily to the US and pleaded guilty than if he contested extradition and denied the charges.

The defendant was offered a deal in return for not contesting extradition and agreeing to plead guilty to two counts of fraud and related activity in connection with computers. On that basis he was told that it was likely that a sentence of three to four years would be passed and after serving six to 12 months in the US he would be repatriated to serve his sentence in the UK.

If, however, the defendant chose not to cooperate, and was then extradited and convicted, he was told that he might expect to receive a sentence of eight to ten years, possibly longer, and would not be repatriated to the UK for any part of it. He would accordingly serve the whole sentence in the US, possibly in a high security prison with at best some 15 per cent remission.

The defendant refused the deal and extradition proceedings were commenced in June 2005.

The defendant’s main argument focused on the wide disparity between on the one hand the predicted likely outcome if he cooperated with the US authorities and on the other hand the threatened likely outcome if he refused to cooperate.

Pressure of that kind, it was submitted, indeed plea-bargaining generally, ran flatly counter to the principle of English law clarified in R v Goodyear ([2005] 1 WLR 2532). The US Government must comply with the legal principles of this jurisdiction when it was seeking the assistance of the English courts.

His Lordship said that it was well to recognise that the difference between the American system and our own was not perhaps as stark as the defendant’s argument suggested. In this country too there was a clearly recognised discount for a plea of guilty: a basic discount of one-third for saving the cost of the trial and more if a guilty plea introduced other mitigating factors.

It was also accepted practice in this country for the parties to hold off-the-record discussions whereby the prosecutor would accept pleas of guilty to lesser charges, or on a lesser factual basis, in return for a defendant’s timely guilty plea. What Goodyear forbade were judicial, not prosecutorial indications of sentence.

On the question of repatriation, the European Convention on the Transfer of Sentenced Persons (ETS 112 of March 21, 1983) conferred no rights on prisoners: a state was not obliged to comply with a repatriation request nor to provide reasons if it refused to do so.

By the same token that a guilty plea attracted a lesser sentence, understandably it was likely also to attract a more sympathetic response to a repatriation request where, as here, that involved a greatly enhanced prospect of early release.

The question raised and central to the determination of the appeal was: would the defendant, following extradition, be paying an unconscionable price for having insisted on exercising his rights under English law?

His Lordship would unhesitatingly answer the question in the negative. The gravity of the offences alleged against the defendant should not be understated. The equivalent domestic offences included an offence under section 12 of the Aviation and Maritime Security Act 1990 for which the maximum sentence was life imprisonment.

Although the disparity between the consequences predicted by the US authorities depended on whether or not the defendant cooperated was very marked, it was no more appropriate to describe the predicted consequences of non-cooperation as a threat than to characterise the predicted consequences of cooperation as a promise or indeed a bribe.

In one sense, all discounts for pleas of guilty could be said to subject the defendant to pressure, and the greater the discount the greater the pressure. But the discount would have to be very substantially more generous than anything promised to the defendant before it constituted unlawful pressure such as to vitiate the process.

So too would the predicted consequences of non-cooperation need to go significantly beyond what could properly be regarded as the defendant’s just desserts on conviction for that to constitute unlawful pressure.

It would only be in a wholly extreme case that the court should properly regard any encouragement to accused persons to surrender for trial and plead guilty, in particular, if made by a prosecutor during a regulated process of plea bargaining, as so unconscionable as to constitute an abuse of process.

It was difficult to think of anything other than the threat of unlawful action which could fairly be said to imperil the integrity of the extradition process as to require the accused, notwithstanding his having resisted the undue pressure, to be discharged irrespective of the strength of the case against him. The defendant’s was far from being such a case.

Lord Scott, Lord Phillips, Lady Hale and Lord Neuberger agreed.

Solicitors: Kaim Todner LLP; Mr James Welch, Southwark; Crown Prosecution Service, Headquarters.


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