麦金农案不改变美英引渡现状

At least five UK newspapers hailed it as home secretary Theresa May’s Love Actually moment – recalling the scene in the film when Hugh Grant, playing Britain’s prime minister, tells the US president to shove it.

在电影《真爱至上》(Love Actually)中，休·格兰特(Hugh Grant)饰演的英国首相让美国总统“滚远点（原因是英国首相看到美国总统正对首相官邸一名女职员无礼——译者注）。最近，影片中这一情节在英国内政大臣特里萨·梅伊(Theresa May)身上真实上演，至少5家英国报纸为之喝彩。

The newspapers were celebrating Ms May’s announcement that she had decided not to extradite Gary McKinnon, wanted by the US for allegedly hacking into 97 military and Nasa computers.

报界为之喝彩的原因是，梅伊宣布她决定不把加里·麦金农(Gary McKinnon)引渡至美国。美国称麦金农入侵了美国军方和国家航空航天局(Nasa)共97台电脑，因此对其发起了通缉。

Ms May said there was a high risk that Mr McKinnon, who has Asperger’s syndrome, would kill himself if he was sent to the US.

梅伊表示，麦金农患有阿斯波哥尔综合征（Asperger’s syndrome，一种不善交际、兴趣偏狭的内向征状——译者注），如果将他引渡至美国，他很有可能自杀。

At last, his supporters said. Here was a politician prepared to stand up for Britain and Britons. Many who fear being flown to the US in handcuffs – and past victims have included not just suspected terrorists but business people such as the NatWest Three and Ian Norris, former head of engineering group Morgan Crucible– are, no doubt, hugely relieved.

麦金农的支持者们这下终于松了一口气。现在有了一位愿为英国和英国人利益挺身而出的政治家。毫无疑问，许多担心被铐上手铐引渡至美国的英国人，听到这个消息也大大松了一口气。以往被引渡的人不仅有恐怖主义嫌犯，还有一些商人，比如“英国国民西敏寺银行三人组(NatWest Three)、英国工程集团Morgan Crucible前首席执行官伊恩·诺里斯(Ian Norris)。

They shouldn’t be. Far from heralding a new era of British assertiveness, Mr McKinnon’s case is likely to be seen as exceptional. The vast majority of UK residents wanted by the US will probably be sent there. There are three reasons to think this.

这些人开心得太早。事实上，欢庆英国步入扬眉吐气新时代的时刻远未到来，麦金农案很可能只是个特例。绝大多数被美国通缉的英国公民很可能还是会被引渡过去。原因有三点。

First, Ms May said there would be no change to the strength of the case that the US has to present when asking for a UK resident to be extradited. Under the current extradition treaty, the US has to show “probable cause. In the UK, arrests take place on the basis of “reasonable suspicion. Critics of the treaty say the US level of proof is lower than that required in the UK. They say that the US should be required to present a prima facie case – evidence sufficient, if it is not rebutted, to secure a conviction.

首先，梅伊说，英国在衡量美国要求引渡英国居民的理由是否充分时，标准并没有改变。根据现行的引渡条约，美方在要求引渡时必须拿出“合理根据(probable cause)。而在英国，必须基于“合理怀疑(reasonable suspicion)才可逮捕嫌疑人。批评现行引渡条约的人士称，美国的证据标准比英国低。他们说，英国应要求美国拿出“prima facie case（即充分的证据，如果该证据未被驳回的话），才能提出指控。

Ms May dismissed the prima facie idea. She added that a report by Sir Scott Baker, a retired judge, had said there was no significant difference between probable cause and reasonable suspicion. She agreed with him and said the current US-UK arrangements were balanced.

梅伊对要求美国拿出“充分证据的主张不以为然。她补充说，退休法官斯科特·贝克爵士(Sir Scott Baker)说过，“合理根据和“合理怀疑并无显著区别。梅伊同意他的看法，认为现行美英引渡安排是平衡的。

Second, Ms May’s decision to introduce a “forum bar, one of the campaigners’ other demands, is unlikely to be much help to those facing US extradition.

其次，尽管梅伊决定引入“审前会商机制（forum bar，用于决定一个案件该在英国国内审判还是在国外审判——译者注，这是麦金农支持者的另一项诉求），但这个决定不太可能对美国要求引渡的其他英国人有多大帮助。

The forum bar would, in theory, allow the UK courts to order that British residents face trial at home rather than in the US. Mr McKinnon’s supporters said it would have been absurd to send him to the US when his alleged crimes were committed while he was sitting at his computer in north London.

理论上，“审前会商机制将使得英国法院能够决定英国居民是在国内、还是在美国受审。麦金农的支持者表示，麦金农在所谓的犯罪过程中，一直坐在北伦敦自己的电脑前，如果把他送到美国受审，那就太荒谬了。

However, the courts said that, even if it had been up to them, they would have preferred his trial to take place in the US.

然而，英国一些法院表示，即便由它们来决定，它们也倾向于让麦金农去美国接受审判。

In a 2010 hearing, Lord Justice Stanley Burnton said Mr McKinnon’s “offending conduct?.?.?.?was directed at the USA, and at computers in the USA; the information he accessed sor could have accessed was US information; its confidentiality and sensitivity were American; and any damage that was inflicted was in the USA. The witnesses who can address the damage done by his offences are in America.

在2010年的庭讯中，大法官斯坦利·伯恩顿(Lord Justice Stanley Burnton)表示，麦金农的“冒犯行为……针对的是美国，以及美国的一些电脑；他获取到的或原本可能获取到的信息也属于美国；那些信息的机密性和敏感性是对美国而言的；该行为造成的任何损失落在美国身上。能够指出其冒犯行为所造成损失的证人都在美国。

Sir Scott said he had asked extradition judges whether any cases they had decided should have been tried in the UK. They said No.

斯科特爵士表示，他曾问过一些引渡法官，是否曾判定某个案件应在英国审判。这些法官们表示，从来没有。

The third reason why Ms May’s apparently brave stand is unlikely to help those facing US extradition is that she intends never to have to take such a stand again.

梅伊的大胆之举不太可能帮到那些面临美国引渡要求的英国人的第三个原因是，梅伊打算再也不要面临这样的抉择。

Under the current US-UK treaty, the home secretary’s role is limited. One of the few decisions she has to make, as in Mr McKinnon’s case, is whether extradition contravenes the Human Rights Act. She said the government planned legislation to ensure that, in future, this decision would be taken by the courts.

按照现行美英引渡条约，英国内政部能做的十分有限。梅伊能做的屈指可数的几项裁定之一是，引渡是否违反《人权法案》(Human Rights Act)——麦金农案就是这种情况。梅伊表示，政府计划立法，以确保这个裁定未来由法院做出。

Judges do occasionally block extradition to the US. They recently did so, in the case of a man wanted for sex offences against minors, because there was a possibility he would be detained for life after his sentence. Even then, the court would have ordered his extradition had the US given an undertaking to release him at the end of his term.

法院有时确实会阻止将嫌犯引渡至美国。最近在一名男子被控性侵未成年人的案子中，法院就做出了禁止引渡的决定，因为该嫌犯引渡至美国后，可能被判无期徒刑。即便是这个案子，假若美国当时承诺最多会判处此人有期徒刑，法官们可能仍会同意将此人引渡至美国。

Generally, UK courts are reluctant to stop extradition and will do so only in exceptional cases. They made it clear they would not, without Ms May’s intervention, have stopped Mr McKinnon’s. I think that would have been cruel. Simon Baron-Cohen, an autism expert, said Mr McKinnon had “the mind of a child. I also think that countries requesting extradition should have to make a prima facie case. But that is not the law, nor, Ms May made clear, will it be. Many may have cheered that scene in Love Actually. They should remember it was a childlike fantasy.

通常而言，英国法院不愿阻止引渡，除非案子特殊。英国法院明确表示，如果梅伊不介入、而由它们来决定的话，它们不会阻止美国引渡麦金农。我认为，允许美国引渡麦金农有些残忍。孤独症专家西蒙·巴伦-科恩(Simon Baron-Cohen)说，麦金农“的思想跟孩子并无二致。我还认为，提出引渡要求的国家应拿出充分的证据。但这个主张并不是法律，而且梅伊明确表示，它将来也不会成为法律。《真爱至上》中的那一幕可能会让许多人欢呼，但这些人应当记住，那只是天真的幻想。