The European Court of Human Rights in Strasbourg is often accused of getting it wrong and recently it seems hardly a day goes by without its decisions being maligned. However, politicians and commentators on all sides of the political spectrum have welcomed the court’s ruling in the case of Abu Hamza and others, which also included Babar Ahmad1.
The court rejected all but one of the appellants’ arguments that their article 3 rights would be engaged if they were subject to extradition to the United States2.
Suspected terrorists are never likely to garner sympathy but many of the issues relevant to Babar Ahmad’s case have at times been overlooked, masking the very live questions of the applicability of the Extradition Act 2003 to his particular case.
Internet crime and extradition
Extradition treaties are founded upon the simple notion that perpetrators of crimes must not go unpunished.
There are many cases when extradition is an appropriate means of securing justice. For example, a murder may be planned and ‘ordered’ by an individual in England but if the victim lived in the United States, the crime, once committed would arguably be most appropriately prosecuted in the United States.
In cases involving the internet, such as that of Babar Ahmad, who is accused of running a website from England in the mid 1990’s which used servers in the United States, this delineation is less straightforward.
It was recognised by Lord Griffiths in the case of Liangsiriprasert v Government of United States of America (1991) 92 Cr App R 77,90 that:
"Unfortunately in this century, crime has ceased to be largely local in origin and effect. Crime is now established on an international scale and the criminal law must face this new reality”.
Internet crime is now raising issues of jurisdiction, as a website created in England could, unbeknown to its creators, be hosted by servers anywhere in the world.
In such cases, common sense dictates that the correct jurisdiction for trial would be the country in which the website was created. Indeed, this is precisely the issue decided by the Court of Appeal in the case of R v Sheppard and Whittle  EWCA Crim 65.
In Sheppard, the appellants were British right-wing Holocaust deniers who had created anti-Semitic and racist websites in England. A remote server located in Torrance, California hosted the websites. Crucially, both the appellants lived in England at the relevant time and the material was uploaded in England and, the judge found, designed to be seen by people in England.
Sheppard and Whittle were prosecuted and convicted for a number of offences relating to racially inflammatory material under the Public Order Act 1986. They unsuccessfully argued that the website was hosted by a server in the United States, where their crimes would not have been considered illegal owing to the First Amendment to the American Constitution and that therefore the court lacked the jurisdiction to prosecute them.
In these circumstances the legal test to be applied is relatively straightforward.
The substantial measure test
This test was applied in the case of R v Smith (Wallace Duncan) (No.4)  2 Cr App 17 and was summed up effectively in a quotation at paragraph 55 of the judgment of Lord Woolf C.J. in Wallace Duncan Smith (No.4) citing Rose L.J. in Smith (No 1):
"The English Courts have decisively begun to move away from definitional obsessions and technical formulations aimed at finding a single situs of a crime by locating where the gist of the crime occurred or where it was completed. Rather, they now appear to seek by an examination of relevant policies to apply the English criminal law where a substantial measure (author’s emphasis) of the activities constituting the crime take place in England, and restricts its application in such circumstances solely to cases where it can seriously be argued on a reasonable view that these activities should on the basis of international comity not be dealt with by another country."
Following this test the Court of Appeal in Sheppard dismissed the appellants’ appeal and noted that it was in England where “the material was generated, edited, uploaded and controlled.”
Applicability of test to Babar Ahmad
Following the above reasoning it is entirely unclear why the United States is seeking the extradition of Babar Ahmad. He is accused of setting up a website in England, allegedly encouraging individuals to travel to Chechnya to carry out ‘jihad’. The substantial measure test if applied, would dictate that Babar Ahmad be charged in this jurisdiction just as Abu Hamza was, and then, if deemed necessary, he could be subject to extradition.
The issue here therefore is not the fairness or otherwise of our extradition treaty with the United States but rather, if Babar Ahmad has committed a crime, why has he not been charged in this jurisdiction?
Further, questions remain as to whether or not the CPS reviewed evidence gathered by the Metropolitan Police in England? If not, why did this process not take place?
Many may hold the view that if the current legislation is being used to extradite convicted or indeed suspected terrorists then who really cares? Furthermore, if the Right Hon. Sir Scott Baker’s 2011 report3 into the terms of our extradition treaty concluded that there was no real imbalance in respect of our extradition arrangements with the United States then surely that must be right?
These arguments fail to address a crucial issue. Babar Ahmad, (unlike that of the infamous hook-handed Abu Hamza), has not been convicted of or charged with any offence in this country.
Instead he has been subject to almost 8 years of detention without charge, the longest serving Briton to do so in modern times. He is awaiting extradition to the United States based upon evidence obtained by the Metropolitan police which appears to have been sent directly to the United States and which was never put to Mr Ahmad.
And this law does not only apply to suspected terrorists. It is also worth noting the case of Richard O’Dwyer, a Sheffield student who founded a website sharing links to TV programmes and whose extradition is being sought by the US. His website contained links, some of which led to legal sources and others to unauthorised sites, breaching US copyright laws (but not, incidentally UK ones). He too is fighting extradition to the US. Others also include Gary McKinnon, the alleged computer hacker with Asperger’s Syndrome, who admits to hacking US government computers but states he was looking for information on UFOs. His case has been ongoing for several years.
The need for reform?
On the one had it is argued that requests for extradition take place each year, and most of them remain uncontroversial. However, the above cases highlight the need for reform to the current system, perhaps in the way of guidelines issued by the Lord Chief Justice and also via statutory recognition that an English court should determine whether a trial should take place in the UK or the requesting state.4
Whatever our views on suspected terrorists, and on the decisions of the European Court in Strasbourg, in all cases it must surely be right that an English court should have the authority to review and determine the appropriate jurisdiction for the trial of British subjects (and indeed all those living here) and that as a matter of course, any evidence gathered by the police in this jurisdiction against a British subject or resident, is subject to review by the CPS before being passed on to foreign jurisdictions.
1Babar Ahmad and others v the United Kingdom (Application nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09)
2This case will be discussed in detail in the next edition of the newsletter.
4Such a provision is already contained in the Police and Justice Act 2006, but requires a Parliamentary vote prior to enactment.