Extradition needs reform and Abu Hamza’s case tells us why

by Stuart Withers and Sarah Walker

Friday night saw the final instalment in a series of the highest profile extradition cases in the past decade. After the High Court refused to grant permission for judicial review (official summary of judgment here) Abu Hamza, one of the most hated and reviled people in the UK, together with Babar Ahmad, Talha Ahsan and the less notorious Al Fawaz and Abdel Bary, were boarded onto planes at RAF Mildenhall bound for the US.  According to the Home Office’s Twitter account they ‘ensured plans were in place so these men could be handed over within hours of the court’s decision.’ Their planes left the UK around midnight.

This is truly an historic event with potential ramifications for future UK-US extraditions. More importantly, it exposes the massive flaws in the Extradition Act 2003 including the imbalance of power between the US and UK, the issue of forum, the judicial reaction to what has been seen as ‘substantial delay’ in the time it takes between appeals, and the public’s reaction to alleged terrorists and their human rights.

The power imbalance between the US and UK, has been well documented. As set out by Ming Campbell in his article in The Guardian, in order to extradite a UK citizen to the US the test of reasonable suspicion applies. For a US citizen to be extradited to the UK the test is one of probable cause. The semantic difference between the two has been the cause of much heated debate, with critics of the treaty arguing that probable cause is a higher test than reasonable suspicion. The Scott Baker Review found that the test was virtually the same and made little difference whereas an independent review by Ming Campbell found that the reasonable suspicion test was lower than that of the US-UK test of probable cause and therefore there was an imbalance of power. Interestingly, a report by the Home Affairs Select Committee concluded that the wording between the two tests did not make a substantial difference, but nevertheless made a recommendation that the UK-US extradition treaty be reworded, so that the tests would reflect each other and the higher test of probable cause. This recommendation somewhat undermines the finding of no substantial difference, further supporting Ming Campbell’s assessment that there is a real difference in the height of the benchmarks in the respective tests, illustrating a clear imbalance of power.

The imbalance of power between both the UK and US does not however rest solely on the tests used for requesting extradition. One prominent feature of Babar Ahmad’s case was the issue of forum – could Ahmad have been tried in the UK for the offences that the US was requesting his extradition for? Alun Jones QC raised this very issue on Newsnight and his performance on the programme must be praised. The wider question is: when a UK citizen commits a crime in the UK, such as Babar Ahmad or Gary McKinnon, when should they be extradited to the US, if at all?

Firstly the issue of forum requires looking at where these crimes have been committed. Determining whether to bar extradition on the grounds that the offence took place in the UK should be an easy question – where physically did the crime take place?  The Scott Baker Review however rejected suggested recommendations of such a simple and clear forum bar argument, on the grounds that it would create unnecessary satellite litigation. As a result, the question is more complex and the law less certain. Babar Ahmad ran a website from the UK which it is alleged was pro-jihad and helping terrorists. The US alleged that it was hosted in the US and, as a result, that Mr Ahmad should be extradited to the US to stand trial. This argument, and subsequently yesterday’s ruling, have caused anger and concern, well presented by Emma Norton, legal office for Liberty, who said “it beggars belief that he won’t be tried here… Isn’t British justice – so admired around the world – capable of dealing with crimes committed in the UK by its own citizens?” Furthermore, to our knowledge, no US citizen has been extradited to the UK when the crime has been committed on US soil, again suggesting an imbalance in the power of the two extradition parties, with the UK appearing to be the ‘younger brother’ in this odd transatlantic family dynamic.

Secondly, the issue of forum raises serious questions about the size and extent of the US’ extra-territorial hand-picking and choosing who to prosecute and what to prosecute them for. As Julian Knowles, a leading extradition expert, said to the Home Affairs Select Committee, [the US] has the power to reach out around the world and—provided there is a very, very tenuous connection with the US—it generally has the power to prosecute’. Such tenuous connections have included the Natwest Three, and now include Babar Ahmad. With the rise in conservative feelings towards the EU and the ECHR, leading into the never ending discussion about parliamentary sovereignty, you would think that there would be greater public disquiet and government disagreement with an arrangement that is clearly a further erosion of the UK’s territorial and parliamentary sovereignty? The Home Office, now governed by a Conservative agenda of empowering Britain, tweeted ‘[i]t is right these men, who are all accused of very serious offences, will finally face justice in the US.’  But is it right, when we could charge them here for alleged crimes committed on our own soil according to our own well-respected judicial system?

A further problem highlighted by last night’s series of cases is that the extradition requests took too long from the issue of the request from the US to the delivery of those requested onto the plane. Endless appeals, judicial reviews and appeals to the European Court of Human Rights are in the words of the Lord Chief Justice a ‘source of real fury’. There are two areas that prolong this.  Firstly, the Extradition Act allows for an automatic right of appeal, and secondly in US extradition requests the final decision to extradite is the responsibility of Secretary of State, which can take many months and may also be subject to judicial review. This is a valid criticism and raises the very real concern that suspects are being held, without trial, for long periods of time, uncertain as to if or when they will be extradited. However, it appears that this concern, going to the heart of the rule of law, is being re-presented as a further attack on the European Court of Human Rights.

The Home Office tweeted ‘[t]hey used every available opportunity to frustrate and delay the extradition process over many years.’ This statement solely places the blame onto the team of lawyers working for the requested persons and the European Court, rather than asking honest questions about why so many opportunities to challenge the extradition decision are available and the necessity and usefulness of each one. It is right that, in these cases, delays in filing applications and receiving judgment from the European Court were considerable. However, the delays in some respects of these cases were actually attributable to the actions of the police and the CPS. Abu Hamza’s extradition was halted on the grounds that he was arrested and tried for various terrorism offences in the UK, spending a significant time in prison. In the case of Babar Ahmad, the police decided to not pass on a significant amount of information to the CPS, instead passing it onto the US authorities, effectively crippling the CPS’ decision of whether or not there were grounds to prosecute him in the UK and leading to a lengthened argument on the issue of forum, as discussed above

There is a further point about the issue of delay and appeals, raised by Mark Reckless MP on Newsnight; that of rule 39 relief from the ECHR. In effect Mark Reckless’s position was that should an English court order extradition and there be no further avenue of appeal available to them in English law, then the court could extradite even if rule 39 relief is obtained. This is somewhat mirrored in the language of the summary judgment at para 13 where the court stated  “[u]nder Rule 39 of the Rules of that Court, the court indicated to the UK Government that it would be desirable in the interests of justice not to extradite the claimants until further notice.” As rule 39 relief is binding on a member state of the ECHR, it is odd that the court would use less-definitive language like ‘desirable’. It is hoped that the full judgment will illuminate this particularly odd turn of phrase, as a development of extraditing first and asking what the European Court of Human Rights thinks later, is not an attractive option, and would be seriously damaging to the validity of applying to the ECHR for relief, as well as further convoluting the already unclear extradition law.

The final area of concern is the public reaction to these cases. Abu Hamza was perhaps the most hated man in Britain up until his departure. The mere mention of his name has led and still will lead to ignorant remarks about Islam and ill informed remarks on human rights.  Last night’s tweets called for the death penalty, and for the various plane’s passengers to be shoved out of the plane whilst it is crossing the Atlantic. Clearly visible across social media and beyond, is the view that for all intents and purposes these men are already convicted terrorists. Sadly less visible is the golden thread of English law, that unequivocal maxim “innocent until proven guilty”? These are extradition requests for allegations of criminal behaviour. In the eyes of many members of the public these men deserved to be extradited, not because of an imbalanced extradition law, but because it appears that for many their guilt has already been decided whilst these men have been detained without charge, unable to address their alleged guilt.

Richard O’Dwyer, whose extradition to the US has been sought since May 2011 in relation to his video search engine TVShack.net

Furthermore, this mistaken and currently unsupported perception of guilt leads to the view that the human rights of these men are just annoying obstacles. Such a view is prevalent in the UK at present, perhaps because it supports the Conservative-led government’s desire for a new bill of rights and removal of the Human Rights Act. But it ought to be corrected, especially in situations such as this. Additionally, questions ought to be asked of why the public are so ready to see Muslim males extradited for crimes not committed on US soil, but are in starkly contrasting uproar about the potential extradition of men such as Gary McKinnon and Richard O’Dwyer.

It is often said that hard cases make bad law, and the same must be said for those who were just extradited to the US. Their cases have highlighted the need for serious reform within extradition law, our imbalanced relationship with the US in relation to this law, and the ill-informed views of the public about guilt and human rights more generally. Significant and serious problems with all of these areas still exist. Trying to bury them behind the ugliness of the allegations these men face is a massive mistake for law reform and justice and we would hope that it will not happen again.

  1. Joshua Mellors said:

    “Additionally, questions ought to be asked of why the public are so ready to see Muslim males extradited for crimes not committed on US soil, but are in starkly contrasting uproar about the potential extradition of men such as Gary McKinnon and Richard O’Dwyer.”

    Because they’re racist?

    • Joshua Mellors said:

      This was a good article, but you could be more direct. Tell us what you think! Give us those questions, and the answers while you’re at it!

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