back to article US prosecution of McKinnon 'spiteful', says ex-top cop

The senior former policeman in charge of the National Hi-Tech Crime Unit squad which first arrested Gary McKinnon has described the ongoing US prosecution of the Pentagon hacker as "spiteful". Marc Kirby, retired former detective inspector at the NHTCU, was in charge of the team which first arrested McKinnon for cybercrime …


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  1. Anonymous Coward


    "Kirby, who led the successful prosecution of the gang behind the failed $420m cyberheist at Sumitomo in October 2004 "

    Did he now? And there was me thinking that it was the CPS who prosecuted, not the police.

    1. brimful

      CPS vs Police

      Having attended jury service for 2 weeks now, I think Kirby should be given more credit than you have given him.

      The CPS merely takes eveidence gathered by the police and spins it to "manipulate" the jury into thinking in a particular way. It is the police which does the actual grunt work. When a person is convicted of a crime and is subsequently not proven to be guilty, it is usually the police that get the flak in not doing their job properly. When the convict is proven to be guilty, kudos usually goes to the CPS barrister. Not priased if you do, damned if you don't.

      1. Anonymous Coward
        Anonymous Coward

        re: CPS vs Police

        I don't think the OP was commenting on Kirby, but what the article said.

        It would be correct to say that Kirby led the investigation, not the prosecution. The latter is the remit of the CPS. Of course, a good job on the former helps as you say, but it's factually incorrect to say Kirby "led the prosecution."

  2. Dodgy Geezer Silver badge
    Thumb Down

    The people who are really in charge...

    "...The Tories moved motions against the US-UK extradition treaty calling for its reform in support of McKinnon during the last parliament, while LibDem home affairs spokesman Chris Huhne has been a long-standing supporter of the McKinnon campaign...."

    How much would you bet that the Home Office civil servants will get their fingers out, and send him overseas quickly before a new administration gets its feet under the table...

  3. Anonymous Coward
    Anonymous Coward

    Spiteful and increasingly stupid...

    The US authorities have acted like spiteful children over this whole affair. About time it was drawn to a close in the UK - and quickly.

    The USA legal team should be prosecuted themselves for wasting so much of their taxpayers' money on what has become little more than a extended legal tantrum.

    This whole affair has been nonsense - whatever MacKinnon did, he should not have been ABLE to do if those computer systems had been adequately secured. And what he did, it can only be assumed unfriendly foreign powers had already done very quietly.

    1. Anonymous Coward
      Anonymous Coward


      If you know so much about the law then you would know that whether or not the computer systems were adequately secured is not even slightly relevant. At best a lack of security would be seen as a mitigating circumstance.

      Consider, for example, the offence of burglary under UK law. Let's imagine that one day you leave your back door unlocked while you are in the shower. Somebody wanders into your house, takes a look around and walks out. They didn't steal anything, but left some muddy footprints on the carpet, did they commit the offence of burglary? Damn right they did. All it takes for the offence of burglary to be commited is that the intruder causes some damage, and in legal terms "damage" would definitely cover dirty carpets. OK so it's unlikely that our imaginary intruder would receive a custodial sentence, or indeed that a prosecution would be brought, but they still commited an offence. Whether or not the CPS in such a case would consider a prosecution would depend on how much damage was done. By "how much damage" I really mean what the cost of repairing the damage would be.

      1. Maverick
        Thumb Down


        > did they commit the offence of burglary? Damn right they did.

        err, damn right they didn't actually

        try looking up the definition ;)

      2. Anonymous Coward
        Thumb Down


        Your own understanding of the law is not as good as you expect from others.

        Definition of Burglary from section 9 of the UK Theft Act 1968;

        "A person is guilty of burglary if they:

        enter any building or part of a building as a trespasser with the intention to steal, inflict grievous bodily harm, rape or cause unlawful damage, or having entered any building or part of a building as a trespasser they steal, inflict or attempt to inflict grievous bodily harm."

        Dirty footprints on a carpet, and/or "damage" with none of the listed intent is not burglary.

        Neither in common parlance, or in law.

      3. Anonymous Coward


        Actually no they didn't commit burglary...they committed trespass (Which is a civil matter).

        They didn't commit theft and how can you prove their motive was to commit theft? You can't.

        With the leaving muddy footprints part, again this could be construde a civil matter...Walking in with muddy foot prints doesn't indicate that the motive was to commit vandalism/criminal damage. You would probably have to sue them to get compensated....

      4. Juillen 1

        Appropriate response..

        I don't think anyone's saying that no offence was committed.

        The thing that irks everybody is that this hypothetical burglar in your analogy is now being extradited to face terrorist charges in another country, as they compromised security (by showing there was no lock, which meant that money needed to be spent to put in place what should have been there all along) and the muddy footprints may be biological warfare against you (no, they're muddy footprints, but hey, it's claimed that this constitutes biological warfare).

      5. brimful


        The common law burglary was defined by Sir Matthew Hale as

        “ The breaking and entering the house of another, with intent to commit a felony therein, whether the felony be actually committed or not."

        By that definition, firstly the CPS has to prove that the guy had intent to cause an offense such as criminal damage. Actus Reus does not prove Mens Rea nor does Mens Rea result in Actus Reus.

        "A person who has permission to enter part of a house, but not another part, commits a breaking and entering when they use any means to enter a room where they are not permitted, so long as the room was not open to enter."

        By that, you could infer that an open door is free for all. If not then we're all criminals for visiting our friends, neighbours, or families.

        In the case of Mckinnon, I think he should sue the US for indecent exposure for exposing their secret parts over the internet.

        Naturally I'm not a lawer so if I get flamed then so be it.

      6. brimful

        In addition

        If a computer system is not adequatly protected and it's visible to the wider network then how can it be a criminal offence to merely broswe the the ip address, have a nosey, and then leave? If google did the same thing and indexed the files which were on the computer, would that be a criminal offence?

      7. Anonymous Coward


        I love it when a Commentard gets on his high horse and tries to belittle others, all the while not realising the mistakes s/he is making in the process.

        "They didn't steal anything, but left some muddy footprints on the carpet, did they commit the offence of burglary?"

        I lol'd at that.

        Despite what facists and our current (ish) government might want you to think, crime needs "mens rea" to be a crime. Civil matters are another story.

    2. Matt Bryant Silver badge

      RE: Spiteful and increasingly stupid...

      Really? So, if you were a script kiddie, curious geek, well-meaning security "expert", or just bored hax0r, wouldn't you be thinking twice about taking a gander at an "unsecured" US military computer now? Especially after all the hyped media attention the bored, curious, well-meaning McKinnon has received? Which is the whole point of such actions - a law is even more effective if it deters crime as when it is used to hammer the stpuidly guilty. To deter criminals they have to believe they will be harshly punished. McKinnon is seen by the US as attempting to "get off" in a manner that would imply anyone can kick holes in US military systems and then claim Asperger's Syndrome to avoid prosecution.

      It may be unfair on McKinnon but his ongoing "persecution" is legal, and there would have been a fraction of the "mental strain" if his legal team had co-operated and plea bargained with the US rather than just given them a two-fingered salute. But then that's because McKinnon's "legal" team has been at the beck and call of certain "human rights" types that are much more interested in pushing their own agenda and stroking their own egos than actually helping McKinnon. Indeed, that bunch and their attendant media circus seem to delight in McKinnon's discomfort and make no move which does anything other than heighten it. Even if he dodges extradition he will be tried here in the UK, and the ongoing UK-US relationship will mean he will get hammered with a stiff sentence regardless of which political party is calling the shots.

  4. Flugal
    Thumb Up

    Let's hope

    Let's hope the (likely) Con-Lib alliance will have a rather more intelligent, sensible, logical, human-rights-based, moral, less repulsive, less vindictive, less here's-our-collective-British-arse-USA-f*ck-it-as-hard-as-you-like approach to the McKinnon case than Labour had.

    Then again, how could it not be?

    And while we're there, this idea that Labour are more aligned with Lib-Dems than Conservatives gets completely wiped out by the concept of ID cards.

    I was going to try and get less angry on Monday mornings. Next week maybe,

    1. Andrew Newstead


      Mostly I agree but bear in mind the conservertive gov of the eighties and ninties was also accused of being American poodles, Maggie and Ronnie Raygun immediately spring to mind.

      America has had a big influence on the UK since WW2 and I can't an end to this just yet.

  5. Owen Carter

    This has always been about spite

    Incompetent little people who lack even enough skill to protect against McKinnon, let alone a real hacker. And their gabbling herd of talking heads who pop up in any article on this to pour more spite in his direction.

    Children, the lot of them.

  6. Wommit


    it's time the UK reviewed our 'special relationship' with the USA, rather than just dropping our keks and bending over whenever POTUS is feeling a little horny.

    1. Anonymous Coward
      Anonymous Coward

      Don't you know?

      Don't you know what the "special relationship" actually entails? After the war the septics leant us a huge amount of money, and continue to top the loan up when it looks like we might be in danger of paying it off. The "special relationship" is basically that so long as our government bend over and take it they will continue to charge nominal interest on the loan. Should we stop playing the game they will charge interest at commercial rates and bankrupt us.

      This is how most US foreign policy has worked since WWII.

    2. brimful


      Do you refer to the Liverpudlian slang term for trousers or do you refer to the British term of the same definition? If the former then the US can shaft away. If the latter, then it's about time stop. However the Liverpudlians shouldn't be exempt from the "no shaft zone".

      1. Trevor 10

        Wartime Lend-Lease agreement

        The war time lend-lease agreement was finally paid off in 2006, it was originally due to be paid off in 2000 but we deferred payment a few times.

        For the last 4 years, we have owed the yanks nothing, at least not from the original loan, I wouldn't be surprised to find we owe a shed load of cash for things like Trident etc.

      2. TkH11

        Special Relationship

        As AC eluded. The special relationship is unilateral.

        In fact, the special relationship extends back to WW2 and ended in 1982.

        In 1982 in the Falklands War, the USA provided us with a new variant of the sidewinder air to air missile to equip our Harriers which had a decisive effect in the war by enabling our Sea Harriers to launch heat seeking missiles head-on. This gave us a significant advantage.

        Since 1982, the phrase 'special relationship' keeps coming up, year after year, but in reality, the American's screw us repeatedly and we get nothing in return.

        There have been numerous cases in Anglo-American history where we've formed agreements to share information, to share technology and we, as always in the UK, bend over like muppets, give them the information and the Yanks then renege on the agreement and fail to reciprocate it.

        This has happened repeatedly since shortly after WW2, with exchange of information regarding aviation technology with regards to breaking the sound barrier, to rocket design, to nuclear bomb information.

        The fact is, we in the UK, like to think we have a special relationship, we speak the same language and we think America are our friends. We think that by having a special relationship with the Yanks, they'll support us in difficult world political issues, in difficult times.

        We think that by having a special relationship that we get preferential treatment, that we enjoy a relationship which benefits us more than a non special relationship between another country and the USA. Otherwise, what is a special relationship unless we benefit more than if it wasn't a special relationship? FFS!

        They helped us out in WW2 and 1982 and that's about all. Even on the Falkland Islands issue which has resurfaced in Year 2009/2010 did the Americans support our position? Did they heck!

        The fact is, the Yanks are incredibly selfish. They take, take from us and don't give us anything back. The extradition agreement we formed with them is just another example of that.

        1. Rattus Rattus

          Preferential treatment

          You do get better treatment than the rest of the world, though. The US hasn't tried to bring democracy to you yet, after all.

    3. Anonymous Coward


      Its about time we ended the thing completely. America has given us more shit than any other country in the world. The stupid litigation (sue you for accidentally treading on my toe) mentality. Killed more of our troops than the bloody germans, dragged us into a war we didnt want (thanks blair you C*&^), the list goes on.

      So, America i fart in your general direction. Your mother was a (English) hampster and your father smells of cranberries. Now go away, i dont want to talk to you no more..

      Go icon but sadly is missing "away" after it.

  7. Anonymous Coward
    Black Helicopters


    if they don't get him to the States how can they waterboard him into giving details of his terrorist contacts??

  8. Martin Gregorie Silver badge

    Legislative cock-up

    Strikes me the NuLabour were very stupid to have ratified the extradition treaty before the Yanks showed any sign of ratifying their end. At the very least it should have been put on hold until the reciprocal agreement was signed into US law and the Americans told exactly what was happening and why. Labour could have done that at any time up to and including the pre-election wash-up: their failure to have done anything to put extradition on a fair and balanced footing says all you need to know about them.

  9. Anonymous Coward
    Anonymous Coward

    About that treaty...

    Did the USoA get around to reciprocally ratifying it? Or are they still requesting extradition based on a mutual extradition treaty that the UK has managed to ratify but the USoA has, er, conveniently forgotten?

    If the latter case, I say sod the treaty. Problem solved.

    1. Uncle Slacky Silver badge


      The treaty can't ever be ratified as a truly reciprocal agreement, as the US Constitution (4th amendment) explicitly forbids it, requiring "probable cause" before allowing someone to be extradited:


      'For the UK to extradite someone from the US...they would need to establish 'probable cause'...defined as "information sufficient to warrant a prudent person's belief that the wanted individual had committed a crime".'


    2. The BigYin

      Yes, it is ratified

      As 30 seconds on your favourite search engine would have told you (it was tratified years ago in point of fact).

      It is, however, still a very one-sided treaty and the Yanks can (pretty much) get whomever they want for any reason and there is little the UK courts can do to stop it. They don't even need to have evidence. The UK, on the other hand, must prove that it has evidence, case, a crime was committed etc.*

      Our government basically abdicated it's responsibility to protect the people from foreign powers. That's treason in my book and another reason that Blair, Brown et al should be in jail.

      Don't expect the new incumbents to change anything. The Lib Dems have no spine, Tories are part of the problem.

      [*All heavily abridged.]

  10. The BigYin

    I get the he "hacked"...

    ...what I really don't get is why the USofA are so worked up about it. He did the equivalent of shoving his head through the electronic door and yelling" Coo-ee! Any aliens here?" Perhaps if the USofA actually LOCKED THE FRIGGIN' DOOR rather than just putting a "Post-It" not on there that said "Secret - please don't come in" we wouldn't be in this mess.

    Give McKinnon a community service order or something and tell the Yanks to shove their request up their collective arsehole. It's what they'd say to us if the roles were reversed.

    1. Anonymous Coward
      Anonymous Coward


      I doubt they even did that. Kinda like putting a blank door without a lock in a public building and expecting noone to be curious. Some of us are a bit nosey...

      As to why, well - he showed the public that whoever was in charge of those places he went for a look-see had not done a very good job. A capital offense when it comes to buke-rats. Off with his head.

      1. Anonymous Coward
        Anonymous Coward

        As I understood it...

        ...the computers were password protected, but they were simple and obvious passwords. If we're using an unlocked door analogy then the nearest analogy would be a lock that is very easy to pick. What amazes a lot of people is just how to bypass the locks on their houses are. If you've ever been locked out and called a locksmith you will probably know the feeling. A locksmith will often be through your front door in under a minute without doing any damage. A neighbour locked herself out of the house a few years ago and asked me for help. I managed to open a downstairs window in a couple of minutes without doing any damage and I'm not even remotely dodgy.

        There are two things that keep our houses secure and neither of them are much to do with how good the locks are. One is quite simply that people don't enter your house because it's not the done thing. Ever come home and found you've left the front door unlocked? It's suprisingly common, yet it's very uncommon that somebody tries the door handle. The other reason is that most scrotes are pretty thick and would brick a window rather than trying any of the less damaging and less attention grabbing methods. Therefore they don't do it unless they are pretty sure there's nobody about to pay attention.

  11. adam payne

    A trial in this country

    He committed a criminal offense and should be tried for it in a court of his peers, but in this country.

    I don't believe he will get a fair trial in the US as it very much seems that they want to make an example of him. I mean after all he did cause major embarrassment to the US authorities by hacking in with a commercial available product and did expose their use of blank administrator passwords amongst other woeful IT practices.

  12. Wang N Staines

    Am I right...

    in saying that the US has better judicial system than the UK? It seems that the British Government are bending backward to send their citizens over there.

    1. Eddy Ito

      No, you're not.

      It isn't that our system is better, it's that our gubbermint is more afraid of its citizenry than anything else.

  13. Eddy Ito

    Just another Obamanation

    It really is a petty thing our, meaning the U.S., gubbermint is trying to do. The large part of it only serves to advertise that the U.S. is "tough on crime". Roughly that translates as "I am the great and powerful Oz". You see the "logic" is that if they make a mountain out of this molehill it deters other moles by showing that they can play whack-a-mole very badly. No wait, I mean if they stomp really hard on this ant and ignore all the other ants then they won't have to stomp on so many later. Ok, so maybe there isn't a good catachresis for group that needs an anal craniumectomy but at least you get the idea that it's a fish of a different color. I mean they just want to know if he actually found it. Perhaps amanfrommars can explain it better than I can.

  14. Anonymous Coward

    @ Burglary

    hahahahaha have you been smoking crack??? Since when has 'walking' into an unsecured location then leaving again without taking anything been burglery?

    1. Ross 7


      Burglary != stealing stuff. It's basically trespass + theft/GBH/rape, or the intent to do one of those things. His example would have been fine had be used "putting a sledge hammer through your 42" Sony Bravia".

      Illegally entering someones house intending to give them a sound beating, finding them not in and so leaving = burglary (proving it beyond reasonable doubt is ofc another matter). Max penalty is 25 years as I recall, so on a par with GBH/rape. Theft on the other hand is 7 I think, showing that it's socially less acceptable to break into a house (a mans house is his castle and all that) or business premises and nick stuff than just to nick stuff out of your open car boot.

      I think what he was trying to say is "he committed an offence". Based on what's come out I agree that he did, and either did know he was doing as much, or should reasonably have known. However I don't believe he should be extradited. To be honest, given the whole palava (sp?) and the assiociated cost to both sets of tax payers they should just drop the charges, keeping them on record in case he's stupid enough to do it again. It's beyond ridiculous now.

  15. Scott 39

    Two Separate Issues

    Every time the subject of McKinnon comes up, there are reams of posts decrying the treatment of the well meaning, harmless lad who was able to break in to these systems "only" because they weren't secure.

    Why does that even matter? The man willfully and knowledgeably compromised government computer systems. His curiosity and lack of ill intent are mitigating factors, at best. The lack of adequate security is shameful, but shouldn't be mitigating.

    Whether or not he should be extradited is a thornier subject, but if it is obvious that the UK government is not willing to treat this as a serious crime, then it is perfectly reasonable for the US government to attempt to do so.

    All the posturing about the "Special Relationship" should be kept separate, not used to pretend McKinnon didn't cross a very serious line. For the most part, it comes off as an ad hominem (ad res publicem?) attack on the US, deflecting attention away from the perpetrator of the offense.

  16. Martin Usher

    The US is amorphous

    The US's government and legal system is an overlapping set of individual fiefdoms that are bound together by the Constitution. The result is that its fairly easy for what used be called "Little Hitlers" in England to get themselves a slice of the action and start personal vendettas. (Look what happened to Michael Jackson in Santa Barbara -- pure theater put on by someone looking for political advantage.) There are mechanisms to deal with this, often involving money or publicity (essentially the same thing) but it is imperfect. The first line of defense is to "just say no" -- in this case don't pander to some power-crazed sub-sub-assistant-attorney out to make a name for him or herself by taking down McKinnon. Like any nuisance, don't encourage them and maybe they'll go away.

    Don't debate the ethics of the crime. Its at worst trespass. Hyping it up to be some serious crime is just pandering to them.

  17. TkH11


    I recall watching a television programme where McKinnon was interviewed and he actually said that administrator passwords had not been said.

    Yes, what he did was illegal, but heck, whilst accessing someone's computer without authorisation may be regarded as 'hacking' within the technical definition of the law ( but i doubt the law actually defines 'hacking', if the muppets don't even set passwords, then the agencies operating those computers have a lot to answer for and must accept some of the blame.

    The fact is, they haven't even taken the most basic of steps to protect their systems, it's sheer incompetence, lazyness.

    Hacking to my mind, and I'm sure to many of us, is actually using ones skill, putting effort in, to actually defeat the security prevention measures.

    McKinnon didn't do this. He logged in without any credentials being needed.

    And I understand, he didn't actually cause any damage. Sure, the Yanks say he did, and have deliberately inflated the monetry value of damage he did to an amount that way exceeds the hardware and probably software costs.

    What they're doing is inflating the amount to include costs they incurred in putting in place the security measures which should have already been present had they done their jobs properly in the first instance.

    It can not be fair, appropriate, reasonable to pass those costs and claim they were 'damages'.

    McKinnon didn't actually cause any damage, didn't destroy any files, didn't prevent them from doing their work. There was virtually no financial loss to the agencies concerned other than costs they should have already incurred if they're been administering their system properly in the first place.

    And finally, the one sided extradition treaty between us and the Yanks underpins this case. It's completely unfair, it's wrong and no-one in the British Labour Government have had the balls to stand up the Yanks and stop this farce.

    1. Anonymous Coward

      It's more spite and embarressment

      He was an idiot and by his reckless actions he showed up a group of system admins in the US gov' as imbeciles. Mucho embarrassment at the time as it was a kids mistake for them to make, and the yanks spend billions on security tech'

      Most people have no understanding of computers or ICT in general, most struggle to drive Facebook! So discussions on the vagaries of IT security can be heard whooshing past their ears.

      Enter the PR folks - by positioning the guy as an experienced hacker, possible terrorist and an enemy of Democracy - they turn a PR loss into a PR gain.

      Don;t expect this one to go away anytime soon

  18. Anonymous Coward
    Anonymous Coward

    Spite can be useful

    Prosecute all criminals especially those who try to hide behind their PC monitor. The only good criminal is in prison. Let's hope Gary gets 50 years in the slammer to ponder how good life was before he decided to hack military PCs.

  19. Andy Enderby 1

    wait up a moment...

    With respect, some of the posters here forget that McKinnon was working as a sysadmin and as such would have been fully aware of the law with regards to intruding into systems belonging to any third party. Given whom these systems belonged to, a hefty sentence if/when caught was always going to be on the cards.

    Having said that, is this case a clearly vindictive and disproportionate use of state power in order to make an example ? Very much so.

    I would have thought that a trial followed by a sentence to be served here in the UK would have been totally in order, but that those responsible for failing to set any security on those systems (military personnel and/or contractors) are equally to blame - ie time in a military detention facility for negligence. At the very least, it should be the end of certain persons careers in the military and/or NASA. After all, whilst this case involved a semi bright, though not malicious "hacker", it could have been an agent of a hostile power that intruded into those computers.....

    As for our beloved government response here in the UK.... as always totally supine.

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