Advanced Search

Decision to Charge

Once the Police have completed their investigations, they will refer the case to the Crown Prosecution Service for advice on how to proceed. We will then make a decision on whether a suspect should be charged, and what that charge should be.

Find out more about private prosecutions

International Crimes

In the modern world with increased communication and travel opportunities crime is increasingly an international issue. International crime includes: technology crime (such as money laundering, fraud, confidence tricksters or other internet scams), immigration offences, extradition (either into or out of this country). The Crown Prosecution Service cooperates with international agencies in order to effectively prosecute international crimes.

Legal guidance on Immigration offences and protocol

Factsheet about extradition

CPS decision on Gary McKinnon case

26/02/2009

Aspects of this statement have been superseded. See statement of 31 July 2009
 
The Crown Prosecution Service (CPS) has today announced that it will not prosecute Gary McKinnon in relation to allegations of computer misuse. This decision follows a careful review of all available evidence including further material and admissions to offences under Section 2 of the Computer Misuse Act 1990 which were submitted by Mr McKinnon's solicitors.

Alison Saunders, head of the CPS Organised Crime Division said: "We identified nine occasions where Mr McKinnon has admitted to activity which would amount to an offence under Section 2 of the Computer Misuse Act (unauthorised access with intent). Although there is sufficient evidence to prosecute Mr McKinnon for these offences, the evidence we have does not come near to reflecting the criminality that is alleged by the American authorities.

"As with every case the CPS considers, Mr McKinnon's case was reviewed in accordance with the Code for Crown Prosecutors, a public document which prosecutors must follow when deciding whether or not to charge. It states that a defendant 'may want to plead guilty to a different, possibly less serious, charge because they are admitting only part of the crime'. CPS lawyers 'should only accept the defendant's plea if they think the court is able to pass a sentence that matches the seriousness of the offending'. Mr McKinnon's offered pleas to the Section 2 offences do not allow the courts this option.

"These were not random experiments in computer hacking, but a deliberate effort to breach US defence systems at a critical time which caused well documented damage. They may have been conducted from Mr McKinnon's home computer - and in that sense there is a UK link - but the target and the damage were transatlantic."

In light of all of the evidence, the CPS also considered offences under Section 3 of the Computer Misuse Act (unauthorised acts with intent to impair). In order to charge an offence under this act the CPS must prove that any offender must have the 'requisite intent' to cause the unauthorised modification of the contents of a computer. Mr McKinnon denies having any malicious intent and, in the absence of further evidence, there is insufficient evidence to prosecute him with any offence under this section of the Act.

The House of Lords has also suggested that Mr McKinnon's activity would have amounted to an offence under Section 12 of the Aviation and Maritime Security Act 1990 but the CPS has not been provided with any evidence to support this offence.

When the case was first notified to the CPS, it became clear that this was an extremely complex enquiry and would require the examination of a large number of computers, the majority of which were situated in the US. In 2002 the CPS met with prosecutors from the United States, following which it was agreed that the UK would cede jurisdiction to US authorities

Mrs Saunders continued: "Having reached our conclusions on these matters, as is our wider duty in accordance with the Attorney General's guidance for handling criminal cases in the USA, we also reconsidered in which jurisdiction the case is best prosecuted - and that remains the United States.

"The facts have remained the same. The bulk of the evidence is located in the United States, the activity was directed against the military infrastructure of the United States, the investigation commenced in the United States and was ongoing, and there are a large number of witnesses, most of whom are located in the United States."

The CPS did not consider Mr McKinnon's diagnosis of Asperger's Syndrome. This could have been considered under the second of the Code tests - whether it is in the public interest to prosecute. All cases must first pass an evidential test and then the public interest test only if that test is satisfied. Because this stage was not reached, the public interest test did not therefore arise.

The Director of Public Prosecutions, Keir Starmer QC, was consulted on the decision.

Ends

  1. Media enquiries and interview requests to CPS Press Office 020 7710 6088, Out of hours pager: 07699 781926.
  2. The House of Lords judgement of 30 July 2008 deals with Mr McKinnon's alleged criminality in paragraphs 11 - 16.

    www.publications.parliament.uk - McKinnon

  3. On the decision to prosecute in the United States, paragraphs 36 and 37 of the High Court judgement following the appeal hearings of 13 and 14 February 2007 before Lord Justice Maurice Kay and Mr Justice Goldring are as follows:
    • (36) The third point raised by Mr Lawson is to the effect that it would be disproportionate to remove Mr McKinnon to face trial in the US when he could be tried for equivalent offences in this country and, if convicted, could be sentenced in a way which would not amount to such an interference with his Article 8 rights. Of this point the District Judge said:

      "The CPS did consider whether to launch a prosecution in the UK and for good reason decided against it. The defendant intentionally targeted computers in the US; his actions resulted in criminal damage being suffered there, as well as causing very considerable disruption to the workings of those computers resulting in interference and disruption to military activities in the US. It is not my task to determine which state has the better right to prosecute, but for what it is worth my view is, unquestionably, if the defendant is to face prosecution, it should be in the US."

    • (37) We agree with that analysis. Submissions similar to those advanced by Mr Lawson were advanced on behalf of the appellant in Bermingham. There, neither the fact that the appellants were United Kingdom nationals nor anything else about their circumstances brought them within the scope of exceptionality. We agree with Mr Summers that, if anything, the US links in the present case are stronger than they were in Bermingham and the UK links are weaker. We add as a footnote that the Extradition Act 2003 has been amended by the Police and Justice Act 2006, Schedule 13. It contains a new section 83A dealing with "Forum" as a bar to extradition to a category 2 territory. However, that section has not yet been brought into effect.
  4. CPS factsheets on extradition are available on the CPS website.

    CPS fact sheet on extradition

  5. The Attorney General's guidance for handling criminal cases in the USA can be found at the foot of the Attorney General's web page below.

    The Attorney General's guidance for handling criminal cases in the USA

  6. The Crown Prosecution Service is the independent authority responsible for prosecuting criminal cases investigated by the police in England and Wales. It is responsible for:
    • Advising the police and reviewing the evidence on cases for possible prosecution
    • Deciding the charge where the decision is to prosecute
    • Preparing cases for court
    • Presenting cases at court
  7. The CPS consists of 42 Areas in total, each headed by a Chief Crown Prosecutor (CCP). In addition there are four specialised national divisions: Organised Crime, Special Crime, Counter-Terrorism and the Fraud Prosecution Service. A telephone service, CPS Direct, provides out-of-hours advice and decisions to police officers across England and Wales. The CPS employs around 8,400 people and prosecuted 1,091,250 cases with an overall conviction rate of 85.1% in 2007-2008. Further information can be found on our website.

    More about the CPS

  8. The CPS, together with ACPO and media representatives, has developed a Protocol for the release of prosecution material to the media. This sets out the type of prosecution material that will normally be released, or considered for release, together with the factors we will take into account when considering requests.

    Publicity and the Criminal Justice System protocol