The legal way to London

As the recent arrest of Mohammed Anwar in relation to money laundering shows, there is little sign of the pressure on the MQM letting up. And money laundering is just one of the issues the party has to worry about. The Pakistani authorities are more interested in the question of whether Altaf Hussain is using his UK base to incite violence back home, and is asking the UK to hand over the MQM leader in relation to that issue.
While the UK is highly unlikely to agree to that request, Scotland Yard remains determined to conclude the investigation into the 2010 murder of Imran Farooq. It is asking Pakistan to hand over two men named by Scotland Yard as suspects in that murder case – Mohsin Ali Syed and Mohammed Kashif Khan. It is believed they have been held by the ISI ever since they were detained on the tarmac after flying from Colombo to Karachi in 2010.
These various requests are complicated by the lack of an extradition treaty between the UK and Pakistan.
One question being asked in Pakistan is whether, in the event of their being handed over to the UK, the evidence of Mohsin Ali Syed and Mohammed Kashif Khan would be accepted by a UK court. In other words, is there any point in Pakistan handing the two men over? Or would the UK give the men relief on the grounds that their illegal detention amounted to an abuse of process?
Much would depend on the mechanism used to hand the two men over.
UK lawyers say the fact that someone has been held illegally in another country is not in itself a reason for their case to be dismissed by a UK court. After all, the legal authorities in London would not want to create a situation in which anyone subject to abuse by a foreign state could not be tried in the UK.
But there are circumstances in which a British judge could rule that a trial in the UK would not be possible because there had been an abuse of process.
Everything would flow from the judge’s assessment of not only whether there could be a fair trial in the UK but also that the process would be seen to be fair. Specifically there would be two tests.
First, the judge would decide whether the treatment of the suspects was so abusive that any reasonable onlooker in the UK would conclude that a trial would bring discredit to the UK justice system. Such a conclusion would be much more likely if UK officials had been involved in the abuse. If the wrongdoing were all on the Pakistani side then it would be difficult to argue that the British system was being brought into disrepute.
The second test concerns the possibility that the abuse a defendant suffered abroad might impact on the fairness of a trial in the UK. If the case in the UK, for example, were to rely on evidence gathered abroad through torture, duress or even illegal detention then that evidence could well be considered tainted.
There, is however, a simple remedy for this potential problem. Any such evidence gathered abroad would be considered inadmissible and disregarded. The only evidence that would count would be that given in a UK court.
Given that the second issue is easily resolved, everything depends on the first test and, in particular, the mechanism used to hand the two men over.
A judge might well regard any hint of defendants having been kidnapped or rendited as totally unacceptable and likely to bring discredit to the British judicial system.
There are rumours, for example, that MI6 and the ISI have discussed the possibility of moving Mohsin Ali Syed and Mohammed Kashif Khan to a country that has an extradition treaty with the UK. They could then be arrested there and sent to London. However, such a manoeuvre could well be akin to kidnapping and result in a judge refusing to allow the men to be tried in the UK.
In 1999 a defendant was moved from Zimbabwe to the UK after the collusion of the two countries’ security services. He won an appeal against a 30-year sentence. Relevant factors in the judge’s decision included the man’s unlawful deportation to the UK and the failure to provide him with a lawyer in Zimbabwe. The case shows that any suggestion of improper British involvement in the transfer the UK could risk provoking the ire of a UK judge.
Back in 2010 there were reports that the ISI detained the two suspects in the Imran Farooq case as a result of a British tip off. In fact it seems those reports were wrong and that the ISI became aware of the men’s intention to travel to Pakistan through its own sources of information. That will be a relief to the UK authorities since UK involvement at that stage could have created an abuse of process problem.
In any event, there is a way in which the two countries could circumvent all such legal uncertainties.
When he was still a British MP Mohamed Sarwar managed to get Pakistan to hand over three men accused (and later convicted) of the 2004 murder of a 15 year old boy in the Scottish city of Glasgow. He did so by persuading Islamabad and London UK to agree to a one-off bilateral agreement. At the time the UK Home Office objected to Sarwar’s efforts on the grounds that such a temporary extradition arrangement could undermine its attempts to negotiate a full-blown treaty. Sarwar managed to overcome those objections.
And today the UK authorities are trying to secure another one-off extradition. Shahid Mohammed, suspected of involvement in some murders in Doncaster in 2002 is currently in Pakistani police custody. The UK Home Office says its attempts to create a legal mechanism to get Shahid Mohammed moved to the UK demonstrates British commitment to ensuring that suspected criminals are brought back to the UK to face justice.
In other words it all depends on what the politicians want to do. Where there is a political will, there will be a legal way.
The writer is a freelance British journalist, one of the hosts of BBC’s Newshour and the author of the new political thriller, Target Britain. Email: bennettjones@hotmail.com
Twitter: @OwenBennettJone