Gary McKinnon (pictured), a vulnerable 44-year old with Asperger syndrome, stands accused by the US of the ‘biggest military computer hack of all time’. It is alleged that, from 2001 to 2002, McKinnon hacked into 97 US military and NASA computers from his London flat. Although McKinnon admits infiltrating the foreign computer systems, he claims that he was motivated only by a search for UFOs and did not intend to cause damage.

The case of Gary McKinnon raises important legal issues and graphically illustrates the difficulties in society that can be encountered by those with autistic spectrum conditions. These conditions are sometimes described as a ‘hidden disability’ because there may be no outward signs of impairment. However, as the chief executive of the National Autistic Society, Mark Lever, explains, individuals affected are ‘often far more vulnerable than initial appearances would suggest, frequently isolated...and sadly many experience severe mental health problems if they do not get the right support’.

Autistic spectrum conditions and the criminal justice systemIn 2008, Gary McKinnon was diagnosed with an autistic spectrum condition known as Asperger syndrome. This is a lifelong disability characterised by difficulties with social communication, interaction and imagination. People with Asperger syndrome are often of average or high intelligence and, as in the case of McKinnon, may develop a powerful interest in a particular hobby or subject.

The National Autistic Society has outlined the following examples of how those with autistic spectrum conditions may inadvertently become involved in the criminal justice system:If criminal justice professionals come into contact with someone whom they suspect suffers from an autistic spectrum condition, it is important that the guidelines produced by the National Autistic Society are followed. For example, autistic individuals may find it very difficult to cope with any interrogating interview techniques used by police officers. The support provided by duty solicitors is therefore crucial and they can request that criminal proceedings are adjourned until psychiatric evidence has been obtained. As autistic spectrum conditions are classified as mental and behavioural disorders, the court may decide to deal with an offence under the Mental Health Act 1983 (section 37 gives the court power to order hospital admission or guardianship rather than imprisonment if certain conditions are satisfied).

  • Social naivety and limited understanding of other people’s motives has occasionally led autistic individuals to act as the unwitting accomplices of criminals;
  • If their fixed routine is interrupted (for example, due to a delay in public transport), autistic individuals may express anxiety and confusion in an aggressive way;
  • Autistic individuals may struggle to comprehend the consequences of their actions and fail to learn from past experience.

Latest developments in the McKinnon caseIn spite of Gary McKinnon’s fragile mental health, he has faced an eight-year ordeal with the perpetual threat of extradition to the US (where he could receive a lengthy prison sentence if convicted of computer misuse offences). Former home secretary Alan Johnson was presented with fresh medical evidence, which confirmed McKinnon’s late diagnosis with Asperger syndrome, and concluded that suicide would be an ‘almost certain inevitability’ if he is extradited. However, Johnson decided that the high threshold for establishing a breach of article 3 of the European Convention on Human Rights (the right not to be subjected to inhuman or degrading treatment or punishment) had still not been met.

A judicial review of Johnson’s decision was due to take place in May 2010, but the High Court formally adjourned this hearing. New home secretary Theresa May has granted McKinnon a temporary reprieve while she reconsiders the medical evidence in the case. Chief executive Mark Lever says that the National Autistic Society now ‘wait in hope that she will...make the decision Gary and his family so desperately need to hear’.

Extradition issuesHuman rights pressure group Liberty has described Gary McKinnon’s case as ‘an example of extradition law failing to protect the interests of justice’. Liberty director Shami Chakrabarti says: ‘The shoddy treatment of this vulnerable man should demonstrate that our rotten extradition laws need urgent reform’.

In the aftermath of the terrorist attacks on 11 September 2001, the Extradition Act 2003 was passed to create a fast-track extradition system and implement the bilateral extradition treaty with the US. Its provisions have generated widespread controversy because the requirement for the US to provide basic (prima facie) evidence of wrongdoing on the part of British citizens was removed. By contrast, the UK must show ‘probable cause’ when making its extradition requests to avoid violating the US Constitution.

Liberty believes that debate should not focus unduly on the principle of reciprocity with the US because summary extradition to any country is unjust. It is campaigning for the following reforms to extradition law:The new coalition government has just announced a review of extradition law and it is hoped that this may lead to important safeguards that are currently lacking.

  • A person should not be extradited to a foreign country unless it can prove a basic case against him in a British court;
  • When a crime has been committed in the UK, a person should not be extradited if a British court decides that this is not in the interests of justice;
  • A person in the UK should not be extradited for conduct that is not classified as a crime under domestic law.

The Autism Act 2009 and adult autism strategyGary McKinnon’s plight highlights perhaps above all else the lack of understanding that those with autism seem to experience on a frequent basis. It is therefore particularly welcome that the Autism Act 2009, which received royal assent on 12 November 2009, makes ‘provision about meeting the needs of adults with autistic spectrum conditions’. This is the first ever statute that focuses on one specific disability and therefore represents a significant milestone.

As required under the Autism Act 2009, the government has published a strategy document entitled Fulfilling and rewarding lives: The strategy for adults with autism in England (2010). The strategy sets out a framework to improve the opportunities in society for adults with autism and its measures can be divided into five core areas:The adult autism strategy has been welcomed by autism representative organisations, including Dimensions (which is the country's largest provider of support for adults with autism). ‘We know that for people with autism, their families and circles of support, swift, accurate diagnosis and access to local services are vital,’ says communications officer for Dimensions Nicola Doughty. Although there is no actual requirement in the strategy for local areas to set up specialist autism teams, Doughty explains that Dimensions has ‘already pushed ahead to develop a network’ of such teams within its services and hopes ‘this marks the start of the kind of tailored support right across the country, so people with autism aren't subjected to a postcode lottery’.

  • Awareness: The first step of the strategy is to improve autism awareness training for all frontline public service staff. For example, training will be provided to all Jobcentre Plus Disability Employment Advisers and £500,000 will be invested to develop specialist training for those working in the health or social care sectors.
  • Diagnosis: The strategy aims to develop a ‘clear, consistent pathway’ for diagnosis of autism in every area and to link diagnosis with an assessment of need under the NHS and Community Care Act 1990. Leading autism expert of Cambridge University Professor Simon Baron-Cohen (who diagnosed McKinnon with Asperger syndrome) says: ‘There is a dire shortage of clinics for adults with suspected Asperger syndrome in the UK, and this situation is mirrored in other countries. Such clinics should be providing both a diagnostic assessment and support/intervention for those seeking such help. It is hoped that the new autism strategy will lead to the necessary expansion of such clinical services.’
  • Public services and support: Guidance will be provided on the types of reasonable adjustments that public sector organisations can make (as required under the Disability Discrimination Act 2005) to ensure that services are accessible for autistic individuals.
  • Employment: As adults with autism are significantly under-represented in the labour market (research shows that only 15% are in employment), measures will be introduced to ensure that they benefit from wider employment initiatives and support.
  • Local services: Each local area is expected to develop its own commissioning plan covering services for adults with autism, and the Homes and Communities Agency will take account of their needs when setting housing design standards.

The futureThe future of Gary McKinnon is still uncertain as the home secretary Theresa May will now formally review the issues in the case. Her decision will be of crucial importance because the legal possibilities for challenging the extradition have almost been exhausted. It is difficult to imagine anything more inhumane than uprooting an individual with a serious medical condition from his support network and exposing him to the risk of suicide in a US prison. Given that David Cameron and Nick Clegg were both outspoken in their support for McKinnon before the election, the new coalition government’s handling of this case will be a real test of its integrity.

More generally, it is hoped that McKinnon’s case may provide the impetus for a more compassionate extradition scheme as recommended by pressure group Liberty.

The Autism Act 2009 and adult autism strategy are designed to ensure that adults with autism can access all mainstream public services. Lever emphasises that ‘the next step will be to translate the strategy into decisive action at a local level’. A new National Autism Programme Board is responsible for overseeing the implementation of the strategy, and statutory guidance for local authorities and health services (together with a full delivery plan) will be published by 31 December 2010.

The treatment of Gary McKinnon demonstrates that improved understanding of autistic spectrum conditions is urgently needed. Although autism may be a ‘hidden disability’, it is imperative that the 1 in 100 adults with this complex condition are no longer invisible and become fully integrated in society.

Azmina Gulamhusein is a solicitor and editor of the Encyclopaedia of Forms and Precedents