The extradition that changes the game

The court ruling that settled Abu Hamza's fate has raised concerns for the rights of others fighting to be tried in Britain

When it was announced that radical Muslim cleric Abu Hamza had finally lost his battle against extradition, there was no public outcry. But it is feared that Monday's decision may have hidden consequences for British citizens who have found themselves fighting a very public fight against the controversial US-UK extradition treaty.

As a panel of European Court of Human of Rights judges threw out an appeal by terror suspects Abu Hamza, Babar Ahmad, Syed Talha Ahsan, Adel Abdul Bary and Khalid Al-Fawwaz, commentators said the ruling amounted to the first green light for American top security prisons and for European governments to approve requests for high-risk suspects.

Keith Vaz, chairman of the Commons Home Affairs Select Committee, welcomed the final resolution of Abu Hamza's "clear cut" case, but warned there were more complicated issues at stake for others awaiting extradition to the US.

"There remain concerns about the Babar Ahmad case, and this must not be used as a green light for the Home Secretary to agree to the extradition of Gary McKinnon or Richard O'Dwyer," he said.

Abu Hamza, who is accused of being involved in hostage-taking in Yemen, advocating violent jihad in Afghanistan and conspiring to establish a jihadi training camp, was jailed in the UK for seven years for soliciting to murder and inciting racial hatred.

But supporters of Babar Ahmad and Syed Talha Ahsan, neither whom have been charged with an offence in the UK, insist they should be tried in this country. The pair were allegedly involved in a group of websites called Azzam.com, which are said to have played a key role in inciting young Muslims in the West to commit acts of terrorism.

Mr Ahsan's brother Hamja reacted to the judgment with horror, pointing out that his sibling has Asperger's syndrome, similar to Gary McKinnon. "The last six years have been a terrifying ordeal for the whole family. This judgment is disturbing. It gives a green light to the most abusive prisons in the US, the type that do not exist in the UK," he told The Independent.

The Strasbourg-based human rights court ruled on 10 April that "detention conditions and length of sentences of five alleged terrorists would not amount to ill-treatment if they were extradited to the USA."

The unanimous ruling said there would be no violation of Article 3 of the Convention on Human Rights – the prohibition of inhuman and degrading treatment – as a result of detention conditions they might face at ADX Florence "supermax" prison in Colorado, where inmates are confined to cells most of the time.

Mr Ahmad's family urged Theresa May, the Home Secretary, to halt the extradition until a decision was made on a potential private prosecution in the UK.

The US-UK extradition treaty, which came into force in January 2004, has been a subject of controversy with many claiming it is one-sided because it allows the US to extradite British citizens for offences committed in the UK, with no reciprocal right.

Sir Scott Baker, who was appointed to review the treaty by Mrs May, concluded last year that it was balanced and there was no basis to see it as "unfair or oppressive". Robin Simcox, of the Henry Jackson Society think tank, defended the system, insisting it was "widely misunderstood". He said: "The charges against these terror suspects are extremely serious, and their extradition should be welcomed. The idea that an open trial in one of the world's great democracies would contravene the European Convention on Human Rights is obscene."

However, in March the Home Affairs Select Committee criticised the Home Office for failing to publish the evidence that lay behind the Baker review, saying it had "serious misgivings" about some aspects of the US-UK arrangements and recommended the Government renegotiate the treaty.

Mr Ahmad and Mr Ahsan's supporters – 149,000 of whom have signed a petition to have them tried in Britain – insist their websites were run in London and that any prosecution should be UK-based. The US is seeking extradition on the grounds that the website host company was based in Connecticut.

Businessman Karl Watkin has even sought consent from the Director of Public Prosecutions to bring a private prosecution against the pair, rather than "outsource the country's criminal justice system to the US". Yesterday the Crown Prosecution Service said the matter was still being considered and the Home Office would only say it was working to ensure extradition as quickly as possible.

"I do not need a court in Europe to tell me that an extradition could take place. I say it shouldn't take place - based on the evidence I've seen," Mr Watkin said yesterday. "The principle is simple – if you are British, and alleged to have done something criminal in this country, then you get prosecuted in this country."

"Their case has next to nothing to do with America. So I await the DPP's decision on my prosecution as a matter of urgency. Until then Ahmad and Ahsan should stay where they are."

Yesterday's decision may also have wider implications for others fighting extradition to the US. Gary McKinnon's mother Janis Sharp said it highlighted again the unfairness of the system: "Why do we not have the same rights as American citizens, who can't be extradited if the crime was committed on US soil?"

In April, a Freedom of Information request revealed that no US citizens had been extradited from the US to the UK under this treaty for crimes committed in the US.

Mr McKinnon, 46, is wanted by the US for hacking into military computers. He claims he was looking for evidence of UFOs, and is awaiting Mrs May's decision on his case next month. His mother insisted the US extradition treaty should not apply to him, as his alleged crimes were committed before it came into force. But European Court's decision that supermax prisons did not breach human rights may have an effect.

Ms Sharp said: "He is unfit for trial and a suicide risk. Gary would not last five minutes in those places, supermax prison or not."

Abu Hamza, 54

Abu Hamza has been convicted in the UK and sentenced to seven years jail in 2006 for soliciting murder and inciting hatred. The US want him on charges of organising hostage taking in Yemen and for allegedly seeking to set up a terror-training camp in Oregon.

Babar Ahmad, 38

First arrested in 2003, no charges have been filed against Mr Ahmad in Britain, but the US wants him for allegedly running a pro-Taliban website and receiving classified information about the US Navy Fifth Fleet. He recently told the BBC that his prosecution had been "outsourced" to the US because there was not enough evidence against him.

Syed Talha Ahsan, 33

Described by his brother as "quiet, bookish and intelligent" , Ahsan has been pursued by the same prosecutors who want Babar Ahmad. No charges have been brought against him by the UK. The US allege he played a role in obtaining information about US ships from a former US serviceman. His family say he should be tried in Britain if any crime was committed.

Khaled Al-Fawwaz, 50

Saudi-born Fawwaz ran Osama bin Laden's London-based media operation until he was arrested in 1998 after al-Qa'ida's bombing of the US embassies in Kenya and Tanzania. US prosecutors have wanted him extradited ever since, making him the longest-serving prisoner without charge in Britain today. He is said to have fought alongside Bin Laden in Afghanistan.

Adel Abdul Bary, 52

Bary is wanted by the US for his alleged involvement in the American-embassy bombings in East Africa. According to the indictment, Bary regularly communicated with al-Qa'ida's deputy leader, Ayman al-Zawahiri, and helped to publicise statements claiming responsibility. He was sentenced to death in absentia in Egypt for an alleged plot to blow up a market.

No one has escaped from 'Supermax'

Its inmates have included Oklahoma bomber Timothy McVeigh, members of the gang behind the first attack on the World Trade Center in 1993 and the "shoe bomber" Richard Reid.

The five terror suspects whose extradition was confirmed on Monday are bound for the ADX Florence "Supermax" prison in Colorado, after their claim that being held there amounted to "inhuman or degrading treatment" was thrown out.

Many of its 490 inmates are terrorists, drug dealers and gang leaders. Cells measure 7ft by 12ft and inmates are confined for 23 hours a day. Anyone thinking of escape – a feat none has ever achieved – will have to contend with 12ft-high razor-wire fences, laser beams, pressure pads and attack dogs.

Kevin Rawlinson