Legal arguments aimed at delaying the extradition of the Islamist cleric Abu Hamza and four other terrorist suspects are “much too late” and an “abuse of process”, the high court has been told.
After eight years of appeals through British and European courts, James Eady QC, for the government, said, “there must be finality in litigation.”
He added: “Those who litigate before the courts cannot store up points so as to achieve a delay that is to their advantage. That is all the more important in the context of extradition proceedings where there’s a strong public interest. Justice delayed is justice denied.
“It’s incumbent on those challenging extradition to raise whatever points they have as soon as is possible. The courts will not continue a fresh cycle of proceedings if they have not done so.
“It’s an abuse to store up a point. The consequence of a store-up approach is to create unnecessary delay running contrary to the public interest.”
Lawyers for terrorist suspects facing imminent extradition to the US, including Abu Hamza, are due in court to make last-ditch appeals against their removal.
The cleric, who was jailed for seven years for soliciting to murder and inciting racial hatred, has been fighting extradition since 2004.
His lawyers are applying for an injunction delaying his deportation on the grounds of the 53-year-old’s medical condition.
They are seeking permission for him to be given an MRI scan. His medical condition, it is argued, has deteriorated partially because of sleep deprivation and continued confinement.
Babar Ahmad, a computer expert, has been held in a UK prison without trial for eight years after being accused of raising funds for terrorism through a website. Khaled al-Fawwaz and Adel Abdul Bary are accused of being aides to Osama bin Laden. The court list does not mention the fifth suspect, Syed Talha Ahsan.
The claims are being heard before Sir John Thomas, president of the Queen’s bench division, and Mr Justice Ouseley.
Last week, the European court of human rights in Strasbourg rejected further appeals to its upper chamber, agreeing with an earlier ruling that the human rights of the five terrorist suspects would not be violated by the prospect of life sentences or solitary confinement in a US “supermax” prison.
The decision was seen as clearing the way for their deportation. The Home Office believes the decision should have exhausted legal avenues and is preparing to send them to the US as soon as possible.
Supporters of Ahmad and Ahsan called for them to be prosecuted in this country for their alleged connection to an extremist website.
But the director of public prosecutions has rejected that request. In a statement, Keir Starmer said he declined to support the charges. He said: “I have refused to give my consent to Mr [Karl] Watkin to bring a private prosecution against Mr Ahmad and Mr Ahsan for offences under the Terrorism Act 2000.
“The underlying evidence in support of these alleged offences is in the possession of the USA. The material provided to me in support of the proposed private prosecution has been carefully considered by a specialist lawyer in the CPS special crime and counter-terrorism division.”
Starmer said he had also consulted the attorney general, Dominic Grieve. “I have received written confirmation that the Metropolitan police service do not intend to refer any further documents or other material to the CPS for consideration,” the DPP added.
The grounds of Ahmad’s application to the high court was that the DPP must be given more time to consider whether or not a private prosecution against him and Ahsan can go ahead in the UK. It is not clear whether the court will still be prepared to hear any claim given the DPP’s decision.
Karl Watkin, the businessman who brought the private prosecution, said: “The DPP’s decision smacks of a determined effort to extradite both these men [Ahmad and Ahsan]. Yet their case is worlds apart from that of convicted Egyptian terrorist Abu Hamza.
“The public will decry this decision as it supports a trial of British men thousands of miles from Britain, where the alleged crime was committed, simply because, in the DPP’s opinion, the evidence is too weak to prosecute here.
“If that’s not outsourcing our criminal justice system, I don’t know what is. To my mind, if you commit a crime in Britain, you get convicted in Britain. These two should be tried here and, if guilty, go to prison here. In my view, the evidence is clear and I have instructed my lawyers to consider asking the courts to order the DPP and attorney general to think again.”
On Monday night the mayor of London, Boris Johnson, put out a statement calling for Ahmad to be put on trial in the UK.
He said: “Clearly the UK-US Extradition Act  is unfairly balanced. In the case of Babar Ahmad, if there was a crime committed it was committed in this country.
“There is absolutely no reason why this gentleman should not be produced before the British courts, arraigned and asked to answer to whatever his crimes are here in the UK.”
The court has allowed two days for the applications to be heard. Lawyers for Fawwaz are appealing against deportation on two grounds: prison conditions in the US and claims that the intelligence services have withheld crucial evidence.
The missing material, it is alleged, would, if disclosed, undermine the case against him.
The solicitor Gareth Peirce, a veteran of innumerable terrorism cases, is representing Ahmad and Ahsan.