Sometimes you just can’t win - particularly with the Daily Mail. ‘A glimpse of common sense from Strasbourg’ was its headline hailing the government’s victory at the European Court of Human Rights in the case involving both Babar Ahmad and Abu Hamza. The subsequent piece was the usual attack on the ‘rag tag judges… adept at both expanding the court’s realm… or simply… making the law as they see fit’.

This was roughly the equivalent of Arsène Wenger grumpily admitting that the referee had got it right but only for this match.

The case was set up as a battle of strength between plucky little Britain and an overbearing European court. Actually, the case really concerned two rather different issues. The narrow question - which involved six applicants facing extradition for trial in the US - was whether the length and nature of the sentences which they might receive would amount to a breach of the European Convention on Human Rights’ prohibition against inhuman and degrading treatment. The broader point was the expansive approach to jurisdiction taken by the US and the passivity of the UK in response.

Those convicted of terrorist offences in the US face long sentences at the United States Penitentiary Administrative Maximum Facility in Florence, Colorado. This is known administratively as ADX Florence, colloquially as the one federal ‘supermax’ prison and poetically as the ‘Alcatraz of the Rockies’. There is little poetic about ADX. Its origin lies in demands for a prison to hold ‘the worst of the worst’ after inmates killed two prison officers at a federal prison in 1983. Although initially intended for prisoners who presented a physical threat, it rapidly filled with an eclectic mix of mafia bosses, spies, Medellin cartel assassins, escape risks and convicted terrorists.

The prison is grim - ‘a cleaner version of hell’, as a prison officer described it. Furniture in each cell is made largely of concrete. Windows and exercise yards are designed so that inmates can only see the sky. The prison works on the basis of crude behaviourist control. An official guide explains: ‘In order to be transferred to a less-restrictive unit, you must maintain clear conduct for a specific period of time, participate in the programmes recommended for your unit team and demonstrate positive institutional adjustment.’ There is much solitary confinement and privileges have to be earned. One study had found that contact with staff ‘could be as little as one minute a day’; inmates were held in cells for all but an hour; and ‘privileges could be terminated for minor infractions - one prisoner was denied outdoor exercise for 60 days for trying to feed crumbs to birds’. The nadir of the US government’s case was the assertion that inmates, otherwise kept alone, could always communicate ‘via the ventilation system’.

Various attempts have been made to get the US courts to declare that such conditions amount to ‘cruel and unusual punishment’. They have all failed. Respectable opposition, however, remains. The New York Bar Association reported in 2011 that conditions were unacceptable: ‘The question is whether the vast archipelago of American supermax facilities, in which some prisoners are kept isolated indefinitely for years, should be tolerated as consistent with fundamental principles of justice.’ These are conditions which few in the UK would advocate - let alone implement.

Some of the applicants in the case faced charges in the US of attempting to organise a jihad training camp in Bly, Oregon. This is a remote ranger station with but one previous claim to fame: it is the site of the only civilian casualties on the mainland US during the second world war. So, no problem over jurisdiction if you choose Bly for a crime - the US can prosecute. Babar Ahmad’s case is, however, rather different. He never left the UK. He was originally sought because he allegedly developed a website held on a US server. As the original district judge said back in 2005 when the US first requested his extradition: ‘This is a difficult and troubling case. [He] is a British subject who is alleged to have committed offences which… could have been prosecuted in this country.’ The UK refused to prosecute, possibly deterred by the way that a jury might see Mr Ahmad’s receipt of £60,000 compensation for the actions of arresting Metropolitan Police officers. The consequence is catastrophic. A UK court would take account of time already served - he might well be released on the day of any conviction. In the US, he faces a long stretch in ADX.

The issue of forum keeps returning. It suits politicians of all governments to wring their hands and say the Extradition Act gives them no alternative but to let the US proceed in the courts. But, a rebel House of Lords passed an amendment that would allow courts to decide on forum where there was a choice. Governments refuse to implement it. The Commons home affairs committee argued that ‘it would be in the interests of justice’ for forum decisions ‘to be taken by a judge in open court’ and not left to backroom deals between prosecutors in which an aggressive US posture dominates over Crown Prosecution Service passivity.

Alternatively, the home secretary could resume responsibility for a decision with such political nuances. Either way, is it not rather demeaning to have British citizens whisked off to the US because, as it appears, the US will not trust us to prosecute our own? The passivity of ministers was rather more central to this case than the ambition of the European court - which anyway rolled over in such a docile fashion that it ruined the Mail’s thesis, if not its story.

Roger Smith is director of the law reform and human rights organisation Justice