The Babar Ahmed extradition case again raises the “forum bar” argument; where significant aspects of the case took place in the UK and it is in the interests of justice to do so, the court should have the ability to say the trial should take place here and not in the requesting state. No such power presently exists.
In Babar Ahmed the District Judge said: “this is a difficult and troubling case. The defendant is a British Citizen who is alleged to have committed offences which if the evidence were available, could have been prosecuted in this country.”
There is legislation available, easily implemented, to amend the Extradition Act, to allow the forum bar argument, but successive governments have shown no inclination to do so. All it would take is a resolution in parliament.
In order to bring the Babar Ahmed matter to a head, a private prosecution has been launched to prosecute, and thereby keep him in this country. But such a prosecution requires the agreement of the Director of Public Prosecutions (DPP). Whether the Home Office will undertake not to send Babah Ahmed to the United States pending that decision and any challenge in the courts if the DPP refuses, remains to be seen.
There are of course arguments against the forum bar: that it will lead to satellite litigation and prolong what is already seen as a lengthy process. But I believe it should be available to the court in appropriate cases. Without it being considered, it looks as if we are heading for further litigation and delays, the very thing that government wants to avoid; and there are cases coming up this autumn where the same arguments will be deployed.