Sir John Thomas, the senior judge who dismissed Abu Hamza’s extradition challenge on October 5, did his chances of promotion no harm at all by the robust way in which he handled the cases of the so-called radical cleric and four other terrorist suspects trying to avoid being sent to the United States. I’m not suggesting for a moment that Sir John was influenced by the expected retirement next summer of Lord Judge as Lord Chief Justice of England and Wales. But the Crime and Courts Bill, currently before parliament, would give the Lord Chancellor a seat on the five-person panel that will select Judge’s successor. Chris Grayling MP, who is trying to sustain a reputation as a tough, no-nonsense Lord Chancellor, is likely to see Thomas as something of a kindred spirit — even though the other favourite for the top job is a woman, Lady Justice Hallett.
One thing that should impress Grayling is the speed with which Thomas and Mr Justice Ouseley, who sat with him, were able to produce a fully reasoned decision — taking nearly two hours to read out — just a day after hearing three days of argument. They had clearly worked late into the night.
Why, then, did it take between seven and 14 years for the US extradition requests to be granted? On Radio 4’s Today programme, an ill-briefed Theresa May was asked repeatedly by an equally ill-briefed John Humphrys why she, as Home Secretary, had not asked the courts to “expedite” the cases — as if that would have made any difference. The main reason for the delay is that the cases took as long as five years to be resolved by the European Court of Human Rights at Strasbourg, even though there were no public hearings. Before that, the suspects had to exhaust their rights of appeal to the domestic courts. It can take a couple of years for cases to get from the magistrates’ courts to what is now the Supreme Court.
Abu Hamza’s flight to New York came eight years after the US had requested his extradition — but he had served a seven-year prison term in the meantime. Adel Abdul Bary and Khaled al-Fawwaz, accused of involvement in conspiracies to murder more than 200 people at US embassies in East Africa, had to wait the longest: the US had requested the latter’s extradition in 1998. Their final appeals to the UK courts were dismissed in 2001. But they then spent the next eight years making representations to the Home Secretary and unsuccessfully challenging the Home Secretary’s decisions in the courts before going to Europe.
As Sir John Thomas made clear in his judgment, this was the real problem in some of these cases. “There may be real dangers,” he said, “in the structure of a scheme which not only has a statutory appeal procedure but which has become complicated by judicial review proceedings which can be used to reopen or raise again issues that have already been decided.”
As the court said, there needed to be finality. And “a necessary part of finality in litigation is that all parts of a case should be raised on the first occasion on which they properly can be raised.” He was not impressed by lawyers who waited until one door had closed before seeking to open another.
How, then, can we speed up the process? It would not be realistic to expect thedomestic courts to act as quickly as they did at the beginning of October; they do not have the resources, particularly when points of law are being raised for the first time. There are prospects of speeding up cases in Strasbourg, but the applications by Abu Hamza and the other terrorist suspects required the court to investigate conditions at US maximum-security prisons, adding to the time taken.
The answer, as Thomas suggests, is for our own courts not to allow extradition cases to ping-pong between the Home Office and the courts. The whole point of the Extradition Act 2003 was to remove the Home Secretary’s discretion and make it less likely that the minister’s decisions would be subject to judicial review.
Except, of course, that the discretion to block extradition to the US in deserving cases would have been very useful for the Home Secretary when she was thinking of what to do with Gary McKinnon, the Asperger’s sufferer accused of hacking into US military computers from his bedroom in London so long ago that he had to use a dial-up modem. On October 16, May announced that McKinnon would not be sent to the US on grounds of ill-health.
At the same time she promised new legislation giving the courts a get-out clause in these cases and in cases where defendants should be tried in the UK instead of being extradited. Whether that will square the circle remains to be seen.