LONDON, UK:  Britain's Home Secretary, Alan Johnson, may have acted unlawfully by pursuing the extradition of the computer hacker with Asperger's syndrome, Gary McKinnon, a High Court judge said on January 13.

Extraditing McKinnon - who is facing a lengthy prison sentence in the United States for breaching US military and Nasa computers - raised "stark and simple issues", Mr Justice Mitting said.

In a letter, the judge described medical evidence that McKinnon would be at high risk of suicide in an American jail as "as yet unchallenged and unqualified".

That evidence may require the Home Secretary "to refuse to surrender [McKinnon] to the government of the USA" Mitting said, in a letter on January 13. "It is arguable that the [Home Secretary's] decision was unlawful", the letter added.

The decision is seen as a dramatic change from the approach of the High Court in previous hearings on McKinnon.

His mother, Janis Sharp, said: "I can't believe it – some common sense at last. This judge has made such an honourable and decent decision. Gary's health has badly declined it's been traumatic to see. I hope this brings him comfort that the right decision will be made, even if it requires the courts to impose it rather than our government to reach it."

Last July, the court rejected arguments that the extradition would violate McKinnon's rights, after lawyers argued the prospect of up to 60 years' imprisonment in an American "supermax" jail would cause mental harm because of his Asperger's syndrome and depressive illness.

The court was influenced by assurances sent to the Home Secretary by the US government, including a guarantee McKinnon would be assessed by doctors and psychologists in jail, and would get "appropriate medical care and treatment".

But the January 13 letter suggested that new evidence sent by McKinnon's team last October, including a report from consultant psychiatrist Professor Jeremy Turk, may have changed the legal position on extraditing McKinnon.  Professor Turk said the Briton was at "exceptionally high risk of self-harm and even suicide."

The Home Office rejected that evidence in November but the January 13 decision from the High Court could make that position untenable, experts said.

"These remarks really highlight the very weak nature of the Secretary of State's position if he continues to resist", an extradition expert who had seen the letter said. "I think he may now withdraw with some grace rather than fight a humiliating stance despite the problems he faces as highlighted by Mitting."

McKinnon’s lawyer, Karen Todner, said she was “delighted” by the decision. But she gave warning that McKinnon was in a “very poor mental state” because of stress.

Todner said: “I would urge Johnson to review his decision and I appeal to President Obama to withdraw the application for extradition. Mr McKinnon’s suffering has gone on long enough.”

McKinnon admits breaching the systems but denies causing damage and claims that he was looking for evidence of unidentified flying objects. He has said he is willing to stand trial in Britain. If found guilty in the US, he faces a lengthy jail term.

A Home Office spokesman said: “As the case is before the courts, we do not propose, pending the outcome, to comment further.”

(Sources: The Guardian, The Daily Telegraph, January 14, 2010)