When does giving a defendant information as to the possible consequences of his co-operation with the prosecution amount to an abuse of process? Probably never, unless threats of unlawful action are made: Mckinnon v United States of America [2008] UKHL 59 (30 July 2008).
Lord Brown, with whom all the Law Lords agreed, concluded (at 41):
“…It is difficult, indeed, to think of anything other than the threat of unlawful action which could fairly be said so to imperil the integrity of the extradition process as to require the accused, notwithstanding his having resisted the undue pressure, to be discharged irrespective of the strength of the case against him.”
Here, the appellant faced extradition on charges arising from his alleged interference, from his home in London, with military computers in the USA. The US authorities indicated to his lawyer that if he did not oppose extradition his co-operation would very likely result in a significantly lower sentence and in repatriation after a minimum time to serve the balance of the sentence in the UK. He resisted that inducement and argued that it amounted to an abuse of process to such an extent that the proceedings against him should be stayed.
Lord Brown observed (at 34) that plea bargaining is not unknown in the UK:
“…it is as well to recognise that the difference between the American system and our own is not perhaps so stark as the appellant's argument suggests. In this country too there is a clearly recognised discount for a plea of guilty: a basic discount of one-third for saving the cost of the trial, more if a guilty plea introduces other mitigating factors, and more still (usually one half to two thirds but exceptionally three-quarters or even beyond that) in the particular circumstances provided for by sections 71-75 of the Serious Organised Crime and Police Act 2005—see R v P; R v Blackburn [2007] EWCA Crim 2290. No less importantly, it is accepted practice in this country for the parties to hold off-the-record discussions whereby the prosecutor will accept pleas of guilty to lesser charges (or on a lesser factual basis) in return for a defendant's timely guilty plea. Indeed the entire premise of the principle established in Goodyear [2005] 1 WLR 2532 is that the parties will have reached an agreed basis of plea in private before the judge is approached. What, it must be appreciated, Goodyear forbids are judicial, not prosecutorial, indications of sentence. Indeed, Goodyear goes further than would be permitted in the United States by allowing the judge in certain circumstances to indicate what sentence he would pass.”
The circumstances of USA v Cobb [2001] 1 SCR 587 were distinguished, and it could not be said that here the prosecuting authority had attempted to interfere with the due process of the court, nor had it put undue pressure on the appellant to forego due legal process, and extradition here would not violate the fundamental principles of justice that underlie the community’s sense of fair play and decency, and neither would the appellant have paid an unconscionable price for insisting on his rights under English law (para 33 and 38).
We have become so accustomed to procedures like plea bargaining that it is difficult to see what is wrong with reducing a person’s sentence in exchange for a plea of guilty. Economic efficiency has become the dominant concern. It would be interesting to know how many people are adversely affected by this policy: how many convictions are obtained in this way, that could not be lawfully secured otherwise? What is the social cost of such “pragmatic” convictions, compared with the benefits of savings in court time and reduced expenditure on punishment?
[Update:] For a feet-on-the-ground appraisal of this case, see the comment by the English playwright Alan Bennett in Keeping On Keeping On (Faber & Faber, London, 2016), reproducing his diary entry for 31 July 2008, which reads: "A depressing judgement in the House of Lords. This is the not unexpected rejection of the appeal against extradition to the USA of Gary McKinnon, the computer programmer who, for no other reason than that it was there, hacked into the Pentagon computer. Unless the European Court has more courage and more sense than the Law Lords he faces an American prison. And for what? Cheek."
Subsequently, in what the Guardian on 16 October 2012 described as "a victory for common sense" Teresa May blocked the extradition.
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