The decision to extradite terror suspect Abid Naseer on 3 January 2013 has been met with some confusion. In 2009 Naseer was arrested on suspicion of plotting a terrorist attack upon Manchester City Centre. The confusion stems from the apparent inconsistency between the decisions not to charge Naseer in the UK or deport him (he is a Pakistani national) and yet to allow his extradition to America - apparently on the basis of the same evidence. A closer look at these separate but related legal processes reveals the reasons.

The decision was taken by the CPS not to charge Naseer on the basis that there was insufficient evidence - the standard applied by the CPS in all criminal cases. There are frequently occasions when the decision not to prosecute is taken because the evidence gathered in the course of the investigation is not admissible at trial or not available to the prosecution because the investigatory body does not want to reveal its methods or sources. This may have been a factor here.

In 2010 the US announced that they sought Naseer’s extradition alleging that he was involved in the planning of worldwide terrorists attack, including attacks upon the USA. Extradition to the United States does not require the court in the UK to consider the evidence behind the extradition request. Therefore the indication by the USA that their request was based - at least in part - on evidence gathered by UK investigators, and which had been deemed insufficient on which to charge Naseer in the UK, was no bar to his extradition as long as the other requirements for extradition were satisfied, which the UK court concluded they were.

In considering Naseer’s deportation, the High Court concluded that Naseer posed "a serious threat to the national security of the UK” but that he could not be deported because he would be likely to face torture in his home country of Pakistan and that this would be a breach of his Article 3 rights not to be subjected to torture or inhumane treatment. Similarly, Naseer argued that extradition to the US would amount to a breach of his Article 3 rights on the basis that he would be imprisoned in a Supermax prison in the US. This argument however is never successful in relation to US extradition requests.

Although a first glance the decision not to prosecute or deport Naseer but to agree to his extradition seems at odds, a closer look reveals the distinct and separate legal backgrounds of each decision.