Saving Gary McKinnon (7 page)

I remember the prosecutors giving interviews where they were irritated as they felt that Gary was being portrayed as some sort of choirboy, but Gary was just being Gary, and his gentle nature, honesty and naivety were transparent to many people.

It was 27 July 2005 and we were due back in court for the second time. I wore the most conventional thing I owned but also wore my favourite yellow platform shoes.

Wilson and Gary usually wore casual clothes but today they were both dressed in the way that every Celt is taught by their parents to dress for such a sombre occasion: in smart suits.

It was a warm, wet day in London as we again walked past the
ballet dancer, her head still bowed as the rain washed over her body. Stepping back through the dark, heavy wooden doors of Bow Street Magistrates’, the intoxicating atmosphere of oppression in the air drained hope from the hearts of the hopeful.

Photographers and journalists congregated outside and Gary was nervous. He always carried a small bottle of water when he was going in and out of court and I think that holding the bottle somehow helped him to stay calm.

We met Gary’s QC, Edmund Lawson, for the first time. Impressive and intelligent, he was also a showman who without effort commanded the attention of everyone he spoke to both inside and outside the court. Edmund had a warm personality and a great sense of humour.

This was the first chance I’d had to speak to Karen, as after the previous court hearing we had left immediately to try to raise the bail money.

Karen was young with blonde hair. A bit different from other solicitors, she wore trendy clothes and fishnet stockings. She was caring, intelligent and down to earth and thankfully didn’t seem intimidated by anyone.

We went upstairs to the courtroom, to find most of the seats already occupied by journalists but we all managed to squeeze in.

The prosecutor hadn’t turned up, so we sat around for a long time until we were informed that the prosecutor was going to be late, then sat around a while longer until the judge appeared.

‘Sit where you are, Mr McKinnon, as you will become cramped in the seat in front of me,’ said the judge, referring to the dock.

A compassionate judge – this seemed like a good start.

When the charges were read out they sounded damning. The US government appeared to have dropped the charges relating to intrusions into US universities that had been listed in
the original indictment. The US universities had subsequently announced that no damage had taken place. Instead the prosecutor now concentrated only on government facilities. Emotive names such as Pearl Harbor and references to ‘after 9/11’ were used, making it sound as though Gary had single-handedly controlled the entire American military machine from his home computer in his bedroom in north London. It was ridiculous. Gary’s knowledge was deliberately being overrated – or perhaps it’s just that the prosecutors were computer illiterate and had no idea of the reality of what Gary had or hadn’t done.

The majority of the judges seemed ill equipped to understand, as, I believe, were some of the prosecutors whose information the judges were relying on. If Gary had been capable of bringing the US military to its knees from his very basic home computer on a dial-up connection, then God help the planet.

I didn’t like where this was going. Everything was escalating out of all proportion and I knew then they were going to try to crucify Gary. The Official Secrets Act was mentioned despite the fact we’d been told that no classified information was involved, as the networks he had allegedly wandered through were non-classified.

Surely instead of spending a fortune on prosecuting people they should spend it on securing their systems against a real attack from an unfriendly country with sophisticated equipment?

Gary seemed to me like a scapegoat for incompetence more than anything else. They tried to make him sound like an expert, which he isn’t. As Gary said, he’s a phisher, not a hacker. Real hackers use much more sophisticated methods and they don’t leave silly cyber-notes.

Part of Gary’s bail conditions in 2005 were that he was not allowed to use the internet, but this judge said Gary could use
the internet for work providing he gave the police and the courts his IP address. Unfortunately the kindly judge didn’t understand that if Gary returned to his previous job working in networks there would be hundreds of different IP addresses, as every computer has its own one.

Gary’s QC, Edmund Lawson, said he was concerned that they might be planning to try Gary in a US military court, using national security as a reason, and he raised this with the judge.

‘In that case I can’t send him,’ announced the judge.

‘
What
?’ My ears pricked up. This was amazing. The judge was going to refuse to extradite!

At that point Edmund asked the judge for a private word in the back and they disappeared through a doorway. When they re-emerged the judge didn’t mention refusing extradition and I couldn’t understand why. Later on the US provided an unsigned diplomatic note which supposedly gave an assurance that a military tribunal would not be used – but as the note was unsigned, there
was
no assurance.

At the following court hearing the prosecutor suddenly raised part of a conversation that took place in the US embassy and was looking pleased with himself, when suddenly Gary’s QC jumped in and said that an American prosecutor had announced that he’d like to see Gary fry.

The prosecutor looked shocked and a bit worried and said something to the effect that Edmund Lawson wasn’t allowed to bring that in as it was part of a privileged conversation.

‘Oh yes I can,’ said Edmund excitedly. ‘You just brought in part of that same conversation and have therefore opened it up, allowing me to bring it in.’

‘Fry’! I couldn’t believe what had just been said. Well, Gary couldn’t go. Anyone thinking someone should ‘fry’ for computer misuse had to be crazy.

Edmund Lawson was a hero, unafraid to confront the court with the truth and to challenge authority when it was in the wrong.

The judge by his own volition changed Gary’s bail conditions so that Gary only had to sign at the police station twice a week, as opposed to every evening. This was in spite of the prosecutor’s protest that if it were possible they’d have liked Gary to sign at the police station every few hours.

I couldn’t understand why, but the judge also ruled that Gary’s address was to be made public. He had been told that Gary had previously lost a job because of the publicity and the journalists camping on his doorstep.

The case was postponed until 18 and 20 October so that an expert lawyer from America could come over with an affidavit which, we hoped, would help. Clive Stafford Smith was also going to give evidence for the defence, about the torture and inhumane conditions that he said existed in the US.

There were so many photographers outside that everyone who began to walk out into the street turned back and walked inside again. Gary’s solicitor Karen Todner spoke to the press and one photo was agreed to. A friend got a taxi so that Gary could leave quickly. We didn’t realise then how important it was for the press, the photographers and the media to be involved, or what an essential part of our lives they would become.

With the stroke of a pen David Blunkett for Tony Blair’s government signed the rights of British people away so that without evidence, and without having set foot in another
country, we could now be carted off like slaves and taken in chains to a foreign land with a foreign culture, whose judicial system and sentencing bears scant resemblance to our own.

What other country would remove the rights of their own people in this way? America certainly wouldn’t. The 2003 UK–US extradition treaty was entirely one-sided, as no US citizen has ever been extradited for a crime committed while they were physically on American soil.

Since the treaty came into effect, British judges seem to be impotent in extradition cases, and appear to be rubber-stamping extraditions rather than trying the cases themselves, even when the accused had never left the UK.

It seems that the extradition of computer geeks – and subsequently even of students accused of copyright infringement – is being requested by the US simply because they now can.

On 14 February 2006 Clive Stafford Smith gave compelling evidence for the defence. We thought Gary had a good chance of winning his case. However, on 10 May District Judge Nicholas Evans in Bow Street Magistrates’ ruled that extradition should take place. On 4 July Home Secretary John Reid signed an order for Gary to be extradited. Karen launched an appeal against Reid’s decision and simultaneously appealed against the decision of the district judge on the basis of passage of time, human rights and abuse of protest.

A crowd of young computer guys who were outraged at what was happening to Gary filmed themselves on 5 November, Guy Fawkes Night, making LED throwies at home and then walking with them in their hands towards Bow Street Magistrates’ Court. When they reached the court they threw hundreds of home-made sticky LEDs – little batteries with magnets and light-emitting diodes – which then stuck onto all the metalwork of the court building, including railings, drainpipes, lights, above
the door, on the red telephone boxes outside the court and on anything made of wrought iron.

Passers-by joined in and it was a visually spectacular Sticky LED Bow Street Light Show protest in support of Gary, filmed and set to music by computer guys who believed that what was happening to Gary was completely unjust.

They made a little speech and then shouted ‘Free Gary’ at the end of the protest. The first comment written underneath the video when posted on YouTube said: ‘Just wanted to say you have our support here in the States. Americans stand behind Gary, and he did a very American thing. FREE GARY.’

On 3 April 2007 Lord Justice Maurice Kay and Justice Goldring dismissed Gary’s appeal. However, the pressure to induce a plea of guilty on the basis that substantial benefits would be withdrawn if one was not forthcoming, plus the threat to refuse repatriation, was described by the judges as an anathema. They gave Gary leave to appeal to the Law Lords on this basis.

On 30 July 2008 Gary was devastated when the Law Lords dismissed his appeal against Jacqui Smith’s decision to extradite. Karen remained as determined as ever and applied on 7 August to the European Court of Human Rights for interim relief.

The constant cycle of high hopes turning to dust makes everything you reach for feel like a mirage. Life takes on a surreal quality. I felt as though we were constantly trying to run up a downward escalator, never quite managing to reach the top.

Karen immediately arranged for us to have a legal conference at the barristers’ chambers to discuss our options. While walking through the new tunnel walkway in King’s Cross, which has an Orwellian science fiction-type feel to it, Wilson told me about
a dream he’d had. His dream was of us walking along this same tunnel and in this dream, when we approached the bend in the tunnel, a Home Secretary who was female looked at us with a smile and wanted us to know that she was singing our song. This seemed a good omen and, although it didn’t fit with Jacqui Smith’s decision on Gary, Wilson’s dream made me feel more optimistic.

The conference with Gary’s legal team was full of positivity and they were as determined as ever to see Gary tried in the UK. When we got home I decided to write a statement to the court but couldn’t keep my eyes open and kept falling asleep in the front of the keyboard. I was totally drained of energy. It’s easy to lose your sense of time when you’re exhausted and constantly under pressure, but when you’re fighting for your child somehow you manage to get up each day, put one foot in front of the other and carry on – because you have to. I’ve also found that some of the best ideas spring into your mind when you’re dog-tired and find yourself staring into space. Inspirational thoughts are like revelations that invigorate the soul. Suddenly the tiredness is gone as your mind races with ideas, endowing you with a new-found energy that puts you back into fight mode.

The European Court of Human Rights announced on the morning of 28 August their refusal to even consider Gary’s case, while simultaneously deciding to take on that of Abu Hamza.

I submitted a statement I had written to the court. Despite my signature, the judges refused to consider it – they said it had clearly been written by a lawyer, which it had not.

Gary’s legal team then asked me to submit evidence for the court swearing that I alone had written my statement, with no input from a lawyer – which was the truth of the matter.

One of the younger lawyers suggested that he could write it out for me. I laughed and pointed out that it would be a bit silly 
for him to write an oath in which I’m swearing that I wrote my own statement, and he said, ‘Oh, right.’

In my oath, I pointed out to the judges that by thinking I wasn’t capable of writing my own statement they were basically underestimating the intelligence of mothers. I then added mischievously that it was hardly rocket science and that I had the benefit of having access to the internet, the library of the world.

T
racey Newport, one of Gary’s lawyers, had evidence on his laptop relating to conversations that took place with regard to the statement from a US official that one state would like to see Mr McKinnon ‘fry’. Suddenly the laptop containing this information was stolen from his car. This was a bitter blow to our case and, rightly or wrongly, we started to suspect that it was no ordinary theft.

A file containing the notes of a meeting Karen had in the US embassy, also relating to the ‘fry’ statement, mysteriously disappeared from Karen’s office and this seemed just too much of a coincidence.

We started to become paranoid. Someone who worked for Gary’s lawyers was worried about being followed by someone from the FBI who was involved in the case: wherever she went, this man seemed to be behind her and she felt very intimidated by him.

It later transpired that Gary’s QC, Edmund Lawson, had his own notes about the ‘fry’ threat, but few were aware of this.

It seemed that our phones were also being monitored. One day, having just hung up after a phone conversation with a friend on our landline, the phone rang and, when I lifted it up, I heard a recording of our whole conversation.

Another time two of my friends rang me separately and were both able to get through at the same time – we had a three-way conversation on the landline. It was increasingly feeling as though we were living more in some kind of spy film than in reality.

16 June 2008 was the date of Gary’s appeal to the House of Lords.

Gary’s QC, Edmund Lawson, seemed to have disappeared off the face of the earth. Whenever we asked where he was everyone was vague and spoke about him maybe being in Hong Kong or elsewhere. We couldn’t understand what had happened.

A QC named David Pannick was keen to take Edmund Lawson’s place and to represent Gary in the Lords on a
pro bono
basis and as he was well respected, we agreed that he could act for Gary, but we were extremely disappointed in not having Edmund Lawson as we believed that he would have won Gary’s case.

Civil liberties campaigning group Liberty was also intervening in the case, represented by the legendary Edward Fitzgerald QC.

The case was to be heard in the morning and I had to get up very early to do a radio interview before we left. We climbed into the car and turned the volume up loud, and for ten precious minutes could sink into a world of sound. I don’t know how I could survive without music, it’s such a release, such an escape from worry, even if only temporarily.

We jumped onto the train in the nick of time and even managed to get a seat. It was a hot day – I knew I shouldn’t have worn a jacket.

We arrived at King’s Cross train station twenty minutes later and ran down the escalator and onto the tube. A strikingly
dressed woman with dark hair and a red coat kept staring at me. She was tall and slim and wore shiny black platform boots and looked as though she might be the head of a fashion company or something – she stood out from the crowd.

‘You’re Gary McKinnon’s mum,’ she said, as a statement rather than a question.

‘Yes, I am.’

‘Well done to you. Keep fighting and don’t give up. This is England and not America and if your son has to be tried anywhere it should be right here in an English court.’

‘That’s what we’re fighting for. We’re in court today.’

‘Good. Gary’s got the entire country behind him. An American would never be extradited to Britain if the boot was on the other foot, we all know that. Your son has embarrassed them by showing up how abominable their security is and the Yanks don’t like to lose face. Our government are wimps; let’s hope they have a spine among them. Good luck,’ she said, putting her hand on my shoulder before she stepped off the tube.

‘Thank you,’ I smiled.

‘She’s right, Wils; let’s hope they’ve got a spine among them.’

‘I doubt it but I hope so. This is our stop.’

We got off the tube and ran along the road. When we walked inside the court the session was just beginning. It was a dark, depressing room with a large painting on the wall and that familiar musty smell hanging in the air.

Despite the huge press presence, we managed to get space to sit down on one of the hard, uncomfortable benches.

The Law Lords were on stage, exuding an air of superiority while deciding on virtual life-or-death decisions to be passed on British subjects, in this case on my son.

It was as though time had stood still again and we were back
in a Dickensian world reminiscent of the hanging judges of years gone by. Although Britain thankfully no longer has the death penalty, Gary was facing what he believed was a sentence worse than death.

Who are these people, these Law Lords smiling and acting mildly amused, as though it’s some kind of game? How dare they think that it’s fine to send one of their own countrymen to be dragged like a slave to an alien land he’s never set foot in, and for a ludicrous number of years? This was no laughing matter.

Had Gary murdered anyone? No!

Had Gary raped anyone? No!

Had Gary sold secrets to anyone? No!

Had Gary made any money from anything he did? No!

Had Gary hurt anyone? No!

Did Gary believe in conspiracy theories? Yes!

Did Gary post a peace protest in a cyber-note accusing the US government of state-sponsored terrorism? Yes!

Had Gary left cyber-notes telling them their security was crap? Yes!

Had Gary embarrassed them? Yes! – and therein lies the crux of the matter.

The court was in session and David Pannick QC started delivering Gary’s case.

Maybe I got that wrong … he didn’t sound as though he was acting for Gary.

‘
Is
he Gary’s QC, Karen?’

‘Yes.’

‘That’s scary.’

‘I know what you mean,’ said Wilson.

The more I heard, the more I could feel my heart sinking.

‘Is this the barrister everyone raved about?’

‘I believe so,’ said Wilson solemnly.

Why do the Law Lords keep referring to Gary serving a possible ten-year sentence in the US – surely they know it’s ten years
per count
?

Lord Phillips must have read my thoughts. ‘Was it ten years per count? Is that where the sixty years came from?’ he boomed. I was thankful that at least one of the Law Lords finally seemed to acknowledge this.

It was Lord Brown’s turn now. Oh no! Lord Brown was trying to equate Gary’s computer misuse with aviation crime. Good God, Gary had never been charged with any such thing. Was this an ingenious attempt by Lord Brown to try to justify the sixty-year sentence suggested by the US?

How could a judge, whose job it is to be independent, strive to make a case to justify a life sentence for a British computer nerd who had never hurt anyone… if that’s what he was trying to do?

‘Didn’t Lord Brown work with the Americans at GCHQ at one time?’

‘I think he did,’ said Wilson, tugging on his beard.

‘Right. That might explain it.’

That Lord Brown could basically suggest without any evidence whatsoever that Gary’s computer misuse ‘may’ equate with crimes against shipping or aviation, when even the CPS had been given no evidence of any such thing, was morally wrong as far as I was concerned.

I mean, anyone could suggest that anyone was guilty of anything but when that person is in a court of law is it right that the judge deciding whether or not you should be extradited should publicly announce suggestions of serious crime with no
evidence to back those suggestions up? Especially when, due to the very nature of the extradition treaty, the accused is not even allowed to defend himself in a British court against any allegations? Besides, the CPS had admitted that they had received no evidence from the US, only hearsay.

In addition to this, Gary had no lawyer present during his first police interview in March 2002. After his second police interview in late 2002, the lawyer representing Gary had written in his notes words to the effect that Gary wasn’t right in the head.

Gary was eccentric and clearly vulnerable, and he paid a high price for his naivety and openness and his attempts to be ridiculously helpful when he was arrested.

I continued to be confused and worried by David Pannick’s performance but I still wasn’t prepared for his answer when Baroness Hale asked him if he regarded what the judges in the High Court had described as threats that amounted to anathema as incentives or threats. Mr Pannick replied, ‘Incentives, M’Lady.’

I couldn’t believe what I was hearing. How could threats such as those made against Gary if he didn’t accept a plea bargain possibly be described as incentives?

Will the courts start to describe blackmail as an incentive to keep a secret?

We raised QC Pannick’s performance with Karen and she said she didn’t know what was wrong with him, as he had a good reputation.

I was overwhelmed with outrage and worry and wished that Edmund Lawson was there. Where was he when we needed him?

I looked at the Law Lords, who were supposed to be listening to arguments in order to make a judgment; rightly or wrongly, I believed that their minds had never been open to argument or reason. It seemed to me that the decision had been made and the only reason they were there in front of us was to attempt to publicly justify extradition and even possibly to attempt to justify a life sentence being given for a non-violent crime.

The reality is that our judges and politicians rarely refuse the US any demand they make.

Thankfully Edward Fitzgerald, acting for Liberty, spoke up for Gary. Although he hadn’t prepared an in-depth response we were very grateful to have Edward there.

We were later informed by other barristers that David Pannick QC had claimed that his performance in the Lords that day was down to him feeling tired. But that didn’t explain why he had ended Gary’s case early, by turning down the following day in court that had already been arranged for Gary’s defence.

Could someone please explain what the heck was going on?

Some months afterwards we discovered that Gary’s original QC, Edmund Lawson, had died suddenly, apparently of a stroke. We were shocked and saddened, all the more so because Edmund left young children.

We were nervous waiting for the judgment to come through and weren’t optimistic because of what we perceived as the shambles in the Lords.

Every time I saw an email from our solicitor Karen on the computer, I was actually scared to look at it.

On 29 July, Karen informed us that the judgment was due to be announced on the following day and that she wasn’t allowed
to tell us the result until then. Gary, Lucy, Wilson and I were waiting for Karen to call us when we heard the judgment being announced on BBC TV. The lords had ruled against Gary. What a way to hear such a devastating decision. The Law Lords upheld the decision to extradite and dismissed the appeal.

It was no surprise to me as I was convinced that the Law Lords had made their decision before even hearing the case. But you always cling to the hope that good will prevail, and hearing that we had lost floored us.

Gary was devastated, as he thought this was the end. I rarely cry in front of anyone and tried to wipe the tears away, but they were coming too fast for me to hold back and we all cried together.

When I managed to compose myself and look at how this was destroying Gary, my sadness was replaced by anger. I told Gary he wasn’t going anywhere and that it wasn’t the end: we would win his freedom. What was happening was wrong and just about everyone knew it.

When a sentence of six months in the UK can become a sentence of sixty years in the US, it is patently clear that our justice systems bear scant resemblance.

Duncan Campbell wrote in
The Guardian
after the hearing in the Lords in 2008:

In the beginning we had such faith in the British judicial system. OK, the American system allows plea bargains, where convicted people can get their sentence reduced if they testify against someone else that the authorities want put away, lengthy solitary confinement and the threat of ridiculously huge sentences, often to pressure someone into taking a plea bargain whether guilty or not … but not
here
, not in the UK?

A disappointment as catastrophic as this was like the floor collapsing with Gary on it. He rarely showed his emotions and could appear calm on the outside, even when he was dying inside, as he was now.

Gary had arranged to give an interview with Ben Scotchbrook on ITV’s
London Tonight
the following day. Gary was devastated and broken but people who didn’t know him couldn’t see that. They saw him as confident and self-assured, but nothing could have been further from the truth and we were seriously worried about him. However, I spent hours persuading him to
go ahead with the interview as I thought it might help. Anyone who knew Gary could see that he was honest, naive and open, so I thought maybe viewers, including politicians and maybe even the American authorities, would see that too.