In 2009, the Crown Prosecution Service was asked to consider potential charges of preparation of terrorist acts, contrary to section 5 of the Terrorism Act 2006, and conspiracy to commit terrorist acts, in relation to Abid Naseer. Each decision made by the CPS is considered in accordance with the Code for Crown Prosecutors. The Code requires that in order for a prosecution to take place, there must be sufficient evidence for a realistic prospect of conviction, meaning that a conviction is more likely than not. In this case, the CPS concluded that there was insufficient evidence to prosecute these alleged offences.
A CPS spokesperson said:
“The evidence in our possession in relation to Abid Naseeer which would have been admissible in a criminal court was very limited. Crucially, there was no evidence of training, research or the purchasing of explosives. We had no evidence of an agreement between Abid Naseer and others which would have supported a charge of conspiracy in this country.
“The evidence used by the US authorities to extradite a suspect does not need to meet the same tests as set out in the Code for Crown Prosecutors. The CPS does not decide on extradition, but acts on behalf of the overseas party in the British court which decides if an extradition can be allowed.”
Sue Hemming, Head of Special Crime and Counter-Terrorism at the CPS, added:
“Whenever the evidence provided to us by counter terrorism police allows us to prosecute, we do so, with public safety paramount. Our record in successfully prosecuting terrorism, including large scale plots to kill, speaks for itself.
“But in order to prosecute, the law requires us to have sufficient evidence for a realistic prospect of conviction and which allows us to comply with our duties of disclosure. Evidence must be admissible in a British court. In the case of Abid Naseer, the investigation did not provide that. We fully understand that police need to intervene early to protect the public, as they have explained in this case, but this does sometimes mean that the evidence required to prosecute is simply not available from the investigation.
“We have not seen all the evidence relied upon by American prosecutors and therefore it would be inappropriate for us to comment on it. However, it is clear from what is now in the public domain that they had material that we did not have access to at the time Abid Naseer was released from custody.
“The case remained under review as further evidence was collected but there was still insufficient evidence to prove any offence in this country prior to his extradition.”
Additional Information
In January 2010, the then Independent Reviewer of Terrorism Legislation, Lord Carlile QC, published a report into this case called ‘Operation Pathway'.
The test used by the American authorities to successfully extradite a suspect is based on an assessment of whether there was “probable cause” that the suspect committed the alleged offence. The threshold for this test is different than the one set for the CPS in considering a domestic prosecution, which requires “sufficient evidence of a realistic prospect of conviction.”
The CPS lawyers that decide on a domestic prosecution do not see the papers submitted by the American extradition request or vice versa.
The extradition court does not decide guilt or innocence but only whether extradition would be lawful. Extradition law is a matter for Parliament. Extradition can only be ordered by the court, which must consider all defence challenges including whether it would be compatible with the defendant’s human rights. The Scott Baker Review in 2012 concluded that UK’s extradition arrangements with the US were balanced and fair.
