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philjit
Arch-Enemy of Idealism

Registered: Jan 2002
Location: UK
Posts: 13050
Prediction: Abu Hamza will not be extradited US

Abu Hamza will not be extradited to the US. That is my prediction. Why? Well it's true that I am making lots of assumptions here based on what has thus far been reported (so I could (and probably will) be horribly wrong), but basically it is going to come to evidence, or more specifcally admissability of evidence and fairness of trial.

By all accounts the US has made it clear that they have the guy banged to rights. The evidence they have relates to (interestingly enough) the killing of three Britons in Yemen. According to reports the US has satellite phone intercepts by Hamza to the Yemen in which these Britons and their deaths are discussed. Now, you would have thought that given that evidence the US would just give it to us (the UK) and say "there ya go you can prosecute the bastard", but it's not that simple.

You see, "intercepts" are not admissable in a UK Court. That is the law. Now one can moan about how silly it is of course, but the law is the law, and unless you change it (a long and decidely drawn out process) then tough. So we cannot ourselves prosecute Abu Hamza for being incvolved in the murder of our own citizen's abroad because the evidence we have is not admissable in our own courts. Amusing huh?

So why will this effect his extradition? Well (and again I am assuming that the intercepts are pretty much all the evidence the US has (if they had more than that they would be giving it to us so we could prosecute him ourselves)), in order to extradite someone you have to go to an extradition hearing and put forward your case i.e. the US will come to a British Court and argue their case for extradition on the grounds of the evidence they have against Hamza, in this case "communication intercepts". But wait, "intercepts" are not admissable as evidence in a British Court, so unless there is some fancy legal wrangling (or some storming new fresh evidence (which would guarantee a refusal as well because it would mean we could prosecute him ourselves) then the USA's case for extradition looks doomed to fail I'd say.

Above though I mentioned the issue of "fair trial". Yesterday the Chief of the NY Police department described Hamza publicly as "the real deal" in terrorism. This may very well be so, but such a comment implies a presumption of guilt before trial rather than the presumption of innocence. In the case of the UK in fact such comments would be considered a contempt of court and the case against the accused would collapse. The comments that have been made, however accurate they probably are, will not bode well in British Court (who are very traditional legal positivists when it comes to such matters).

So yeah, extradition will fail I reckon. But that won't be the end of it. you see, Hamza had his citzenship revoked. now whether one agrees with such an ability on the part of the Home Secretary or not (smug), again the law is the law and this a power he has. His decision to revoke Hamza's citzenship is however being contested in the court. Hamza will not win though as the legislation is in place to do it, and I can't think of any comvention or precadent that states that the legilsation is not illegal, particularly given that Hamza has dual citzenship with Eygpt. He does in that sense have somewhere to go. And that neatly bring me on to how this will end.

Hamza will be deported to Eygpt, at which point he will be arrested and handed over to the Americans after they place massive pressure on Eygpt to do so. This is known as rendition.

OK, rambling over.

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Old Post 05-28-2004 09:17 AM
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MstrG
The Talamasca

Registered: Jul 2000
Location: Upstate NY
Posts: 10432
Re: Prediction: Abu Hamza will not be extradited US

quote:
Originally posted by philjit
Above though I mentioned the issue of "fair trial". Yesterday the Chief of the NY Police department described Hamza publicly as "the real deal" in terrorism. This may very well be so, but such a comment implies a presumption of guilt before trial rather than the presumption of innocence. In the case of the UK in fact such comments would be considered a contempt of court and the case against the accused would collapse.

I find this a silly concept (no, not the presumption of innocence). It probably differs between the UK and US, which is why you're raising it, but even here, there's a current case where it's being tested but has little chance of succeeding.

In the Kobe Bryant proceedings, the defense has put forward a motion to have the word "victim" removed as a reference to the woman making rape accusations against Bryant, because victim carries with it the assumption that a crime actually happened, and with it, the guilt of the accused. Most analysts believe this doesn't stand a chance of winning. Underlying the prosecution of any defendant is the belief of their guilt by their accusers, obviously. It doesn't mean the presumption of innocence holds any less weight during a trial -- imagine a prosecution that couldn't present any evidence indicating guilt.

The same thing happens in public debates all the time. You'll hear, even in a social context, someone saying "That bastard should fry!!" and someone else will pipe up with "Now, now, we have to presume they're innocent, it's their right." Bullshit. It's the right of the accused to a fair trial, in which those who ultimately judge the individual make the presumption of innocence until guilt is proved. No one else, including the prosecution, the police, the victim's family and friends, or the man on the street, is required to withhold judgement. Imagine a District Attorney that couldn't implore the jury to vote for guilt.

I've heard a couple people here hold that innocent until proven otherwise is a good policy for the common man to adopt regardless. That may be true in their personal dealings (like getting both sides of a story), but doesn't apply to the courts. The truth is, no one outside that jury box is capable of seeing things from the jury's perspective. They are making a decision based on what is usually a subset of the evidence and/or other information available to those outside the box.

I've gone a bit far afield here, but I think you get the idea.

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Old Post 05-28-2004 03:24 PM
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philjit
Arch-Enemy of Idealism

Registered: Jan 2002
Location: UK
Posts: 13050

Yes I do get the idea, actually in the specific case of the example I gave it's more related to who says what and where. Basically the comments by the NY Police Chief were made publicly in relation to a trial as yet to occur. In the UK that would cause untold problems as it is pre-empting a verdict in an offical capcity. As David Blunkett commented this morningm he could, under the British system of law, never say such a thing publicly else severely jeapodise the ability of the prosecution to carry out a case in a non-prejudgemental fashion i.e. fair.

I think, in the case of the UK, this is the absolutely right thing to do, as do I think that the media should be heavily censured for making statements about guilt in the middle of trials or in pre-trial. That kind of action does jeapodise the ability to fair trial as massive media coverage prejudging the outcome can have an effect on the Jury. Take the Bryant story, you would be hard pushed to find a jury that didnt know anything about the trial and had no already existing preconceptions about it.

quote:
They are making a decision based on what is usually a subset of the evidence and/or other information available to those outside the box.


and in high profile cases they could also be making a judgement on the basis of pre-trial media speculation that they have been exposed to, and that is the point relating to the ability to have a fair trial. I beleive the phrase is "trial by media". In the Uk at least, from arrest to trial can take six to nine monthes, in which time you can be tried and convicted in the eyes of people before you even get to court.

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Old Post 05-28-2004 04:17 PM
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MstrG
The Talamasca

Registered: Jul 2000
Location: Upstate NY
Posts: 10432

So I'm hearing at least a couple things there that I don't understand...

- The judge has jurisdiction over people who don't even appear in his court, and at times when court isn't in session?

- Do the newspapers/tv also stay mum?

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Old Post 05-28-2004 04:30 PM
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philjit
Arch-Enemy of Idealism

Registered: Jan 2002
Location: UK
Posts: 13050

quote:
Originally posted by MstrG
The judge has jurisdiction over people who don't even appear in his court, and at times when court isn't in session?


Yes and no, it's not so much the Judge but the Crown.

In this respect it is public servant who have to be exteremly careful what they say, if they say something that could jeapodise the case they can be censured and held in contempt. Given that power of the Court it is conventional for public servants i.e. politicians, policeman etc to keep their mouths shut and their personal opinions to themself.

quote:
Do the newspapers/tv also stay mum?


Again yes and no. For the most part, yes. The television certainly does stick to the convention above. It's too m#risky for them not to, they can have their license to broadcast revoked if they start making pre-trial prejudgements about cases, in addition to editors and the like being fined and held in contempt. In the case of the print media, most papers follow the rules, occassionally the less quality ones over step the mark, and they usually buckle and apologise to the court after they get heavily fined. There was a case a few years ago where one paper carried an exclusive interview with the father of an assault victim (racist incident) in the middle of the trial, the accused were professional footballers of some standing. The trial collapsed as a result and the newspaper was held in contempt and fined massively. Quite right too in my view.

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Old Post 05-28-2004 04:48 PM
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Smug Git
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Registered: Aug 2001
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The point is mostly to do with the media, I think. If anything is said that is deemed to have prejudiced a fair trial, the trial probably won't go ahead. The police here are very circumspect indeed, as are the media, when describing an imminent trial or prosecution, partly because as people who should know better they can be done for contempt of course, but in the police's case because it can be seen to have prejudiced a fair trial. People in the street, of course, can say and think whatever they want. However, if you want to extradite someone from another country, you have to do so with due respect for their laws, so if a US police chief said something that would be deemed prejudicial in a UK court, then I guess that that can be used to resist extradition on the basis that he won't recieve what under UK law would be considered to be a fair trial. A US police chief should know this, I'd have thought. Against that, the US can claim that the jury screening process avoids these problems, I imagine, as it is the same for people trying to extradite people from any country (a couple of alleged fraudsters in the UK fled to the US and can't be extradited because the crime 'conspiracy to commit fraud' is apparently not even a crime in the US, or at least not in the part of the US where they are, IRA suspects were not extradited because some US judges ruled them to have committed 'political crimes', etc). Additionally, if the evidence against a suspect wouldn't be sufficient to have some chance of success in a trial in the UK, I am not sure that we can extradite him (on top of the US having in any case to guarantee that no death sentence will be possible).

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Old Post 05-28-2004 05:22 PM
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Smug Git
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And the point is not that the trial judge has jurisdiction over what people say or do outside his court, it is that he has jurisdiction inside his court and can call a trial off he believes that it cannot be fair. The contempt of court issue is separate, a different law, which basically says that you can't do anything to prejudice a fair trial; a man in a pub saying that someone is guilty will not achieve that, but a media broadcast saying the same thing will. It is the law that you are not allowed to prejudice someone's fair trial, basically, and the right of the accused to a fair trial means that, if you are judged to have done so, their trial will be called off (often permanently) and you will face court yourself. I am not aware of any accusations that the system doesn't work, in any case, although the internet does pose an increasing threat to it (jury pre-screening does happen here in any case, I think, but it will get harder to find people who haven't been exposed to the claims, if they are all over the net).

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Old Post 05-28-2004 05:28 PM
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MstrG
The Talamasca

Registered: Jul 2000
Location: Upstate NY
Posts: 10432

Well, there are obviously differences in free speech rights and independent press concerns, but I guess they are worth noting since we're talking about extradition.

It still seems outlandish for an official on the side of the prosecution, particularly one directly involved in the case, to be muffled, when everyone knows their position is that the defendant is guilty in the first place. They are, after all, working hard to get the person convicted. And an indictment is a statement that the authorities believe the person committed the crime, is it not?

You will sometimes hear of gag orders here, in which a judge can impose a temporary restraint on parties involved in the case from speaking about anything material. This usually happens in high profile proceedings and often at the request of the defense. Judges are definitely pressing the boundaries of their powers when they try to impose it on the press, though. In the Bryant case, some news organizations chose to publish the name and picture of the alleged victim, something that is highly frowned upon in rape cases, but not against the law.

Trial by media can be an issue, but as Smug pointed out, it is mostly mitigated with the voir dire process. In extreme cases, where media saturation has possibly tainted a large percentage of the jury poll, a change of venue can be granted. This is rare, however, as it also causes delays and extra expense. This was granted, for example, in the Peterson murder case in California, even though it was found surveys of prospective jurors were highly flawed (turns out college students were just filling in blanks to complete their projects.)

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Old Post 05-28-2004 06:07 PM
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Smug Git
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The jury is only supposed to hear such evidence as is presented in court. In this case, the defendent's right to a 'fair trial' is considered to trump free speech rights, especially when, after the case, anyone can say whatever they want, subject to the normal slander/libel laws, about the case. So in this sense it is free speech delayed. I don't think that even the papers mind that much, because they are all bound by the same rules and they can all make their dough reporting the trial (the first time that the evidence can really be seen) and after the trial.

They don't get the chance to do all the Kobe/OJ/whoever type stuff before, I suppose, and the prosecution and defense can't try to ensure that whatever is allowed in, what they don't get allowed in can still get an airing through the press. If the pre-screening works well, why do defense and prosecution make so much effort to get elements of their evidence known beforehand? Is it just for their personal PR, or do they think that there is an eventual advantage to their clients, in the courtroom, to so doing? If the latter is the case, then that would be considered in the UK to be prejudicial to a fair trial.

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Old Post 05-28-2004 06:33 PM
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Smug Git
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And the police chief wasn't so much saying 'we think that he is guilty' he was saying 'this man is a terrorist, and a serious one at that', which isn't like saying 'I think that this man is guilty of murder'.

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Old Post 05-28-2004 06:34 PM
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