In this piece, Fahad Ansari examines the use of the UK US Extradition Treaty 2003 in securing convictions against British citizens in the US when in more than one instance the CPS in the UK have deemed insufficient evidence for a prosecution to be brought.
Despite the seeming disregard for principles of due process and the rule of law, the House of Lords Select Committee didn’t find anything particularly problematic with the Treaty, they should consider the wider impact of a complete lack of faith in the British criminal justice system.

(CC image courtesy of Pranav Bhasin on Flickr)

The House of Lords Select Committee published its findings following a nine month inquiry into the UK’s extradition arrangements with other countries. Part of the inquiry examined the UK-US Extradition Treaty 2003 that has come under severe criticism since its inception.
Despite receiving detailed submissions and oral evidence from civil liberty groups and numerous individuals directly affected by the Treaty, the Committee gave an almost clean bill of health to the extradition arrangements with the US. Although it flagged concerns about the US justice system, particularly lengthy periods of pre-trial detention, excessive harshness and difficulties in obtaining bail, it agreed with the European Court of Human Rights that prison conditions there did not breach human rights.

Apart from the risk of human rights abuses, one of the greatest criticisms of the Treaty is the lack of an effective forum bar to extradition where the majority of criminal activity has taken place in the UK. This watered down forum bar was finally introduced into law in 2013 after many high profile Muslim detainees were extradited. The bar still allows extradition where the Crown Prosecution Service refuse to prosecute. It is this aspect of the Treaty that has resulted in British justice effectively being subcontracted to a foreign jurisdiction. There are many examples of this but three tend to stand out.

One of the most recent cases of a defendant being convicted in the US following extradition from the UK is that of Pakistani student Abid Naseer. Naseer was one of several men arrested in Manchester in April 2009 and accused of plotting to blow up the Arndale Shopping Centre. However, despite carrying out one of the largest ever counter-terrorism investigations – involving the surveillance of a dozen suspects, the CPS said there was not enough evidence to put any of the men on trial.
There were emails between Naseer and a suspected al-Qaeda operative in Pakistan – allegedly coded discussions about a possible imminent attack on the city centre. But crucially no explosives or chemicals were found and no gathering of ingredients to make bombs.

Following the decision not to charge Naseer, the Home Office attempted to deport him to Pakistan. Other members accused of participating in the plot were permitted to voluntarily return to Pakistan. Naseer’s deportation was blocked due to the risk of his being mistreated in light of the accusations against him. A secret court examining evidence that neither Naseer nor his solicitor were permitted to see or challenge, concluded that Naseer was an al-Qaida operative who posed a threat to the national security of the UK. But due to there being insufficient evidence to charge Naseer, he was placed under a control order for a brief period before the US requested his extradition alleging that his plot was part of a wider al-Qaeda conspiracy to attack Britain, America and Norway. The evidence against Naseer during his trial was weak with the crucial documents seized from Bin Laden’s compound in Abbotabad failing to make any mention either Naseer or even Manchester. Nevertheless, based on information provided by the security services, Naseer was convicted and now faces life imprisonment in solitary confinement.

Earlier this year, the controversial cleric Abu Hamza was sentenced to life imprisonment without the possibility of parole after having being convicted or terrorism offences, primarily related to the killing of Western hostages in Yemen in 1998. Having already completed a seven year sentence for incitement offences, Abu Hamza spent the next five years in detention fighting extradition to the US before being flown over in 2012. Astonishingly, despite four of the killed hostages being British citizens, the CPS never prosecuted Abu Hamza for these offences stating that there was “”simply insufficient evidence to allow a prosecution.” Yet, all the evidence in relation to those crimes was possessed by British police and provided to the US prosecutor. Following his conviction, the Met admitted that it had provided the FBI with “a high volume of exhibits and case papers and facilitated several interviews with witnesses and victims in the UK” during the investigation.

One of the real cause célèbre of campaigners was the case of Babar Ahmad and Talha Ahsan who finally lost their eight year battle against extradition in October 2012. In exchange for significantly shorter sentences (12.5 and credit for time served respectively), both men entered guilty pleas to charges of material support for terrorism. Although technically convicted of terrorism, the judge in the case found that neither man was interested in terrorism or in any operational terrorist actions that would harm the US, that they did not support or believe in or associate with Al Qaeda, and never engaged in operational planning or operations that could fall under the term “terrorism”. Incredibly, all the evidence in the case against Ahmad and Ahsan had been seized in the US by British anti-terror police but had been deemed insufficient to prosecute them for any offence.

These are just a handful of examples of cases involving individuals accused of plotting terrorist attacks from the UK, targeting British citizens and being a threat to the national security of the UK. Despite Britain having some of the broadest anti-terror legislation in the world, not one of these men could be charged with a single criminal offence due to insufficient evidence. Yet that same evidence was then sent across the Atlantic to convict these defendants. This was possible due to the fact that under the Treaty, there is no need for the US government to make a prima facie case and its evidence cannot be tested in a court of law.

One can only speculate as to why Britain continues to subcontract its justice system to a foreign jurisdiction in this manner. Perhaps it provides an easy way to dispose of complex cases where there is not enough evidence for a conviction in a British court – defendants are more likely to be convicted by an American jury in an atmosphere of serious prejudice should they not enter a plea agreement. Or maybe it because of the much greater sentencing powers of US judges that would mean controversial individuals are locked up for life, something that would be unlikely to happen in the UK. Or it could be vindictive in the knowledge that even before a US trial begins, a defendant could spend up to three years in solitary confinement in conditions described as amounting to torture by the UN.

Whatever the correct answer is, this practice is abhorrent and completely undermines the rule of law and principles of due process which will only lead to a widespread lack of respect for the British criminal justice system.

(NOTE: CAGE represents cases of individuals based on the remit of our work. Supporting a case does not mean we agree with the views or actions of the individual. Content published on CAGE may not reflect the official position of our organisation.)