Update | Crime: Gary McKinnon, DPAs and malicious communications

Gary McKinnon was arrested in March 2002 on allegations that he had hacked into sensitive US military computer systems. A lengthy contested extradition process ensued, which along the way, garnered extensive media coverage. Finally, on 16 October 2012, the Home Secretary, Theresa May, blocked McKinnon's extradition to the United States on human rights grounds. This attracted criticism that her discretion was exercised for political considerations rather than having regard to the merits of the individual case. May announced that the single issue she had to decide was whether the extradition of McKinnon, who has Asperger's Syndrome, would result in a breach of his human rights under article 3 of the European Convention. In making this decision, May announced that 'Mr McKinnon's extradition would give rise to such a high risk of him ending his life that a decision to extradite would be incompatible with Mr McKinnon's human rights.'

Some people may question the consistency of May's decision, especially given the parallels to the lesser known case of Talha Ahsan, and the timing of the decision on McKinnon which took place less than a month after Ahsan had been extradited. Ahsan is a British-born Muslim who, like McKinnon, also suffers from Asperger's syndrome. Similarly, Ahsan had never been to the US, but is accused of operating a pro-jihadist website. The only connection to the US, according to his supporters, is that one of the website's servers was located there. However, Ahsan exhausted all legal remedies both in the UK and the European Court, despite, like McKinnon, relying on evidence of the effects that US prison conditions would have on his mental health. His case had been joined to that of Abu Hamza, ?among others.

In both McKinnon and Ahsan, the issue of 'forum' was raised, that is, whether, having regard to the facts of each case, it is more appropriate to prosecute in the UK or the United States. Following her decision on McKinnon, the Home Secretary announced that the government intended to introduce a 'forum bar' to extradition, under which alleged crimes predominantly committed in this country will be tried here if it is in the interests of justice to do so. In fact, in 2006 the Extradition Act 2003 was amended to include a forum bar, but this has not been implemented.

An independent review carried out last year by Sir Scott Baker was against the introduction of the forum bar. Instead, the Baker Review suggested that the issue of forum should be considered by prosecutors at the beginning of an investigation and that formal guidance, publicly available, should be drawn up for prosecuting authorities to follow in deciding whether or not to prosecute a case involving cross-border criminal conduct in the UK. This appears to be eminently sensible, as the determination of forum at the outset would save time and investigative resources, and may also avoid lengthy legal battles, as already seen in the McKinnon and Ahsan cases.

Deferred Prosecution Agreement developments

The draft legislation for DPAs, which was published on 23 October 2012, neatly encapsulates the core principles of the DPA scheme as envisaged by the government and having regard to the public consultations that have taken place. The draft legislation confirms that DPAs are agreements between a designated prosecutor and a corporate entity (including bodies corporate and partnerships), that such agreements will not be available to individuals, and that all agreements must be sanctioned by the courts in a transparent fashion.

In addition, a Code of Practice from the Director of Public Prosecutions and the Director of the Serious Fraud Office will be drafted and shall be of crucial importance to companies and their advisers in deciding whether it will be in the company's best interests to enter into a DPA. A Code of Practice is needed in order that companies may be clear on the prosecutor's position in relation to disclosure of information during the negotiation process, and the use to which the prosecution may put admissions or evidence gathered.

The specific requirements of a DPA are up for negotiation between the parties but the draft legislation suggests that in addition to the expected financial penalties and compensation to victims, companies may also be required to donate money to charity, implement a compliance program relating to the company's policies or train employees.

Whilst the features of DPA agreements are clearly modelled on the US approach, we remember the BAE case in 2010, when the SFO agreed that BAE should make a £29.5m charitable donation towards education projects in Tanzania. This was part of the settlement to conclude the investigation into BAE's alleged bribery relating to the sale of military equipment to the Tanzanian government. The difference in that case was that BAE had simply pleaded guilty to failing to provide proper accounting records and had avoided making any admission as to corruption. Under the proposed DPA system, one would imagine that the statement of facts upon which the DPA is agreed would most likely contain some admissions by the company involved.

From a practitioner's perspective, the next issue will be to consider how enforcement of these measures should be monitored. For example, at the time a DPA is entered into, it is unlikely that either the company or the prosecutor would be able to set out, in accurate detail, how a charitable donation could be distributed. It should be noted that BAE has been criticised over the methods they adopted to distribute the charitable funds to the Tanzanian people. Genuine issues arise as to how money should be allocated to victims and charity groups, especially in countries where there is a risk that funds could be siphoned back to corrupt officials. This in turn, may require additional resources from both the prosecution (to monitor) and the company (to demonstrate) compliance with the DPA.

Criminal twit(ters)

Over the course of 2012, we have seen the growing emergence of criminal offences carried out in the public domain via Twitter and other social media applications. Whilst civil practitioners specialising in media and internet law are experienced in dealing with civil claims arising from libellous statements, the CPS is struggling to find a consistent approach when dealing with offensive statements that stray into the realm of criminal conduct.

In July, Paul Chambers finally found justice but it took four members of the High Court to decide that his expression of frustration at the closure of Robin Hood airport was not meant as a terrorist threat. Until the Chambers case, prosecutions under section 127 of the Communications Act 2003 were rarely reported in the mainstream media. However, with the advent of Twitter, hundreds, if not thousands of postings, on any given day may constitute criminal acts if the message is 'grossly offensive or of an indecent, obscene or menacing character'. Since then, a surge of cases has resulted concerning individuals arrested for posting various unpalatable and distasteful messages.

Semi-professional footballer Daniel Thomas, for example, posted a homophobic message about Olympic swimmer Tom Daley. This took place after the High Court's decision in Chambers, and it appeared that the CPS had learnt its lesson: it dropped the case against Thomas on the basis that the message was 'intended to be humorous'.

However, some tweets were seen by the courts as more than just joking matters. Liam Stacey received 56 days in prison after he tweeted a series of racist messages on Twitter about footballer Fabrice Muamba, beginning with 'LOL F*ck Muamba. He's dead!' Stacey was not prosecuted under section 127 of the Communications Act 2003, but rather, on the basis that he had committed a racially aggravated disorder offence, with intent to cause harassment, alarm or distress.
In another case, Stephen Birrell was prosecuted in Scotland for posting a Facebook message about Catholic football supporters, saying 'Hope they all die. Simple. Catholic scumbags ha ha.'
Whilst there is no doubt that both messages were distasteful and insulting, the inconsistency of the decisions made by the CPS, both in respect of whether a prosecution should proceed, and if so, for what offence, begs for clarification. The CPS has issued interim guidance but more specificity is required in order to reassure the public that prosecutorial decisions are made impartially.

On 12 November, a man was arrested in Kent for allegedly posting an offensive comment alongside a picture of a burning poppy on Facebook. He has been released on police bail pending further investigations. It is with interest that we await the result, particularly as in March 2011, Emdadur Choudhury, of Muslims Against Crusades, was fined £50 under section 5 of the Public Order Act 1986 for burning replica poppies at an Armistice Day memorial. It is may seem somewhat incongruous that, if prosecuted under section 5, the burning of a poppy in public is a non-imprisonable offence, whilst posting an image of burning a poppy on Facebook carries a maximum 6 month prison term if prosecuted under section 127 of the Communications Act 2003.