The High Court has intervened to end a stand-off between the home secretary and Gary McKinnon over the order to have him extradited to face hacking charges in the US.
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McKinnon's extradition has been stalled since the May 2010 election that brought to power a coalition government populated with ministers who campaigned in his name. But the extradition order still stands, and has been stalled only by a disagreement over medical evidence that suggested he was psychologically so frail it would be inhumane to allow foreign police to take him.
Mr Justice Mitting called an end to the deadlock today, giving McKinnon two weeks to decide whether to submit to a medical examination by a psychologist under the direction of home secretary Teresa May.
May had been unsatisfied with diagnoses made by some of the world's leading experts in autism, who had said McKinnon was not fit to stand trial and that extradition would cause him so much torment he would likely commit suicide. McKinnon has been diagnosed with Asperger's Syndrome, a form of autism characterised by low emotional intelligence and can "meltdown" under everyday social pressures.
The home secretary wanted another examination conducted by an official Home Office psychologist. But McKinnon, backed by the National Autistic Society, protested that her official wasn't an expert in autism and could not therefore understand his uniquely vulnerable condition.
Hugo Keith QC, counsel for the home secretary, told the High Court today that if McKinnon didn't submit to a Home Office examination within two weeks May would decide his fate on evidence already before her. That wouldn't take long, he said, because "the arguments are well rehearsed".
The last home secretary, Alan Johnson, said the US/UK extradition treaty gave him no power to halt McKinnon's extradition despite the alarming medical evidence from autism experts.
It took Johnson three months to reassess McKinnon's medical evidence in 2009 and to conclude there was nothing he could do to refuse the US order. It has taken May two years without reaching a conclusion. Mr Justice Mitting said the court may convene a panel of autism experts or call them as witnesses to resolve what the Home Office believes are inconsistencies in their assessments.
The judge said it was about time the matter was settled. It has been 10 years since the US called for McKinnon's arrest, and consideration must be given to the strain it must be putting on him. He made the home secretary's counsel sit down and read a statement from Janis Sharp, McKinnon's mother, before he would proceed today.
Sharp's statement gave a personal assessment of her son's health: "Gary rarely leaves his home now as he is traumatised to the core. A boy who cycled, swam, composed music and sang, now sits in the dark with his cats and never wants to see or speak to anyone. He has no life, and is broken, like a wounded animal with no outlet and no hope, seeing only the dark side and the cruelty that exists in the world."
Read Computer Weekly's coverage of the Gary McKinnon case
The statement also included quotes from a medical assessment made in April by a psychologist who is on the Home Office's books and is an expert recognised by the National Autistic Society, but whose examination has not been deemed sufficient by the home secretary. It said McKinnon was unfit for trial and remained at extreme risk of suicide.
The government had promised to revise the extradition treaty in respect of McKinnon's plight. A Computer Weekly investigation found last year that while the Crown Prosecution Service must assess whether there is a public interest in bringing charges against someone in the UK, it has no such power over extradition requests made by foreign prosecutors.