McKinnon (Appellant) v Government of the United States of America (Respondents) and another

Prosecutorial encouragement to consent to extradition and plead guilty, including a substantial difference between the predicted consequences of cooperation and conviction after contest, does not ordinarily abuse the extradition process. A permanent stay and discharge are justified only in a wholly extreme case where the pressure is so unconscionable that it imperils the process’s integrity. A threat of unlawful action may meet that standard.

Legitimate plea bargaining may include a reduced charge or factual basis, credit for accepting responsibility and a more favourable approach to repatriation. Courts should accommodate differences between friendly states’ legal systems when applying extradition law.

The United States sought the appellant’s extradition for alleged unauthorised access to, and damage of, 97 government computers. Before the extradition request, prosecutors offered a substantially more favourable charging, sentencing and repatriation position if he travelled voluntarily and pleaded guilty. They indicated materially harsher consequences if he contested extradition and was subsequently convicted.

A District Judge sent the case to the Secretary of State, who ordered extradition. The Divisional Court dismissed appeals against both decisions in [2007] EWHC 762 (Admin) but certified a question of general public importance.

The House considered whether the plea-bargaining communications, particularly the indication that prosecutors would withhold support for repatriation if extradition were contested, constituted an abuse requiring a permanent stay or an unjustified interference with Convention rights.

1. Appeal dismissed unanimously. Lord Brown of Eaton-under-Heywood delivered the leading speech. Lord Scott, Lord Phillips, Baroness Hale and Lord Neuberger agreed with his reasons. Baroness Hale answered the certified question, “not in this case”.

2. Per Lord Brown, extradition proceedings may be stayed for abuse of process to protect the integrity of the statutory regime. The relevant abuse must justify a permanent stay and the accused’s discharge. Articles 5(4) and 6 added nothing to the abuse claim on the agreed basis of the appeal.

3. Prosecutorial plea bargaining was not inherently improper. English practice also recognised substantial credit for a guilty plea and permitted private negotiations under which prosecutors accepted lesser charges or a lesser factual basis. Goodyear [2005] 1 WLR 2532 prohibited improper judicial sentence indications; it did not prohibit prosecutorial discussions. Regulated federal plea bargaining also required disclosure and judicial scrutiny.

4. The disparity between the predicted outcomes did not constitute unlawful pressure. A guilty-plea discount would need to be substantially more generous than that offered before it vitiated the process. Correspondingly, the predicted consequences of non-cooperation would need to extend significantly beyond the offender’s proper punishment following conviction. Support for repatriation could legitimately be influenced by cooperation because transfer could materially affect the period actually served.

5. USA v Cobb [2001] 1 SCR 587 was materially different. There, the sentencing judge threatened the maximum lawful sentence and a prosecutor threatened sexual violence in prison. Here, prosecutors described differing lawful consequences. The allegation that they would oppose transfer merely because extradition was contested had also been expressly repudiated.

6. Per Lord Brown, only a wholly extreme case, such as Cobb, would make encouragement to surrender and plead guilty so unconscionable that extradition must be refused. A threat of unlawful action was the clearest example. This case fell far short of that threshold, particularly given the gravity of the alleged offences. Extradition law should also be applied broadly and with proper accommodation for legal and cultural differences between friendly states.

1. House of Lords: Dismissed the appellant’s appeal unanimously in [2008] UKHL 59 and upheld the extradition process.

2. Divisional Court: Maurice Kay LJ and Goldring J dismissed appeals against the District Judge’s decision and the Secretary of State’s extradition order in [2007] EWHC 762 (Admin). The court certified two points under section 114(4) of the Extradition Act 2003; the House granted leave on one.

3. Secretary of State: Ordered extradition on 4 July 2006 after the case had been sent for executive decision.

4. Bow Street Magistrates’ Court: District Judge Evans sent the case to the Secretary of State on 10 May 2006.