The UK government’s decision to enable self-confessed hacker Gary McKinnon to avoid extradition to face trial for breaking into US government and military computers could set a dangerous precedent.
Home secretary Theresa May said in a statement that, after careful consideration of all of the relevant material, she had concluded that “a decision to extradite would be incompatible with Mr McKinnon's human rights".
But there is a tension between the government’s actions in the McKinnon case and its campaign against the cyber threat to the economy, according to Stewart Room, partner at law firm Field Fisher Waterhouse.
“On the one hand, the government is making a stand against cyber threats, but on the other it is creating a human rights get-out clause in extradition cases,” he told Computer Weekly.
Room believes that by enabling McKinnon to stay in the UK, the government has potentially hamstrung all future international cyber-related prosecutions.
It is extremely likely that any time a country applies for an extradition of someone to stand trial on cyber-related charges, they will attempt to play the human rights card, he said.
Read more about Gary McKinnon's extradition appeal
Whatever the effect will be on future cross-border cyber cases, it certainly will not make it easier if an extradition request is involved, said Room. “It will almost certainly make such cases harder to prosecute,” he said.
However, the home secretary has promised to introduce a law that would allow people accused of crimes with dual jurisdiction – such as hackers based in one country and infiltrating another – to be prosecuted at home, if it was in the interests of justice. She warned that extradition remained important in a world where it was easy to commit cross-border crimes, either digitally or in person.
British courts had repeatedly thrown out McKinnon's pleas for the extradition process to strike a balance between his hacking crimes and the vulnerable psychology caused by his having Asperger's Syndrome.
The government has also agreed to consider what more could be done to ensure extradition orders were handled proportionately and not pursued when the burden of an extradition outweighed minor charges.
The UK routinely prevents cases being brought before its own courts if it is against the public interest, but the government has been criticised for failing to extend the same protections to UK citizens faced with extradition.