Support is building in the British Parliament and from legal experts forto be tried in the U.K.
Liberal Democrat peer Lord Carlile of Berriew, Queen's Counsel, the independent reviewer of Britain's antiterror laws, told CNET News sister site ZDNet UK on Wednesday that McKinnon's diagnosis with Asperger's Syndrome, a condition on the autistic spectrum, means he should be tried in Britain rather than in the U.S.
McKinnon was diagnosed with Asperger's Syndrome last summer by Cambridge University autism expert Simon Baron-Cohen. Despite the diagnosis, the Home Office refused to to the United States to face charges of hacking 97 U.S. military computers.
McKinnon, who is 43 years old, faces up to 70 years in a maximum security jail if tried and found guilty under U.S. antiterror laws. U.S. prosecutors claim McKinnon was politically motivated to access the U.S. Army, Navy, Air Force, and NASA systems. McKinnon claims he was searching for UFOs.
"In my opinion, Mr. McKinnon can be prosecuted in the U.K. since the acts of hacking occurred within our jurisdiction," Carlile told ZDNet UK. "I believe that Professor Simon Baron-Cohen's opinion that he is clearly placed within the category of autism spectrum disorder, with potential serious injury to his health were he to be transferred to the U.S. legal system, strongly reinforces the case for him to be tried in this jurisdiction."
In December, McKinnon signed a confession in an attempt to avoid extradition, admitting to offenses under section 2 of the U.K. Computer Misuse Act. McKinnon's legal team sent the confession to the director of public prosecutions, Keir Starmer, who is still in the process of making a decision as to whether to prosecute McKinnon in the United Kingdom. A U.K. prosecution would help McKinnon avoid extradition.
"We'd hope to make a decision soon," a Crown Prosecution Service spokesperson told ZDNet UK on Tuesday.
Lord Carlile told The Guardian on Monday that he had sent a letter to home secretary Jacqui Smith pressing for U.K. prosecution for McKinnon. Lord Carlile is one of a growing number of parliamentarians who are taking up McKinnon's cause. Eighty members of Parliament have now signed an early day motion urging the home secretary not to permit McKinnon's extradition.
Members of Parliament who have signed the motion include the Conservative shadow minister for justice, David Burrowes, Liberal Democrat shadow home secretary Chris Huhne, Liberal Democrat deputy leader Vince Cable and Independent Labour MP Clare Short.
Lord Carlile is also one of an increasing number of legal experts calling for U.K. prosecution for the self-confessed hacker. The all-party law-reform and human-rights organization Justice told ZDNet UK on Monday that the idea of McKinnon being tried under U.S. antiterror laws was problematic.
"The U.K. should seriously consider whether to prosecute here," said Justice director Roger Smith. "One of the problems of extradition is that people are tried by the standards of that country, but whatever he is, McKinnon is not a terrorist. He should not be dealt with as a terrorist. Lord Carlile in this case was speaking as a reviewer of terrorism."
Smith added that Justice thinks McKinnon should be charged and dealt with by U.K. authorities as a matter of policy, rather than human rights. "We think he should be tried here," he said. "He could be tried here or elsewhere, but our view is he should be tried here where [he has] strong connections."
Human rights organization Liberty, which has in the past provided legal representation for McKinnon, told ZDNet UK on Tuesday that the extradition agreement with the U.S. should be changed to allow for extradition to be halted on compassionate grounds.
"Any humane extradition scheme must allow for extradition to be refused on compelling compassionate grounds," said Liberty legal director James Welch. "If the Extradition Act can't accommodate this, then this is yet another way in which this unprincipled legislation is flawed."
Liberty has campaigned for the extradition agreement between the U.K. and the U.S. to be made reciprocal. Currently, U.S. prosecutors do not need to provide prima facie evidence of wrongdoing in a U.K. court to secure the extradition of a U.K. citizen to their country.
Tom Espiner of ZDNet UK reported from London.