The decision by the high court yesterday not to prevent the extradition of Gary McKinnon is disappointing yet sadly not surprising. The problem is not that the courts are making bad decisions but that we have a bad law that removes important safeguards and largely ties the hands of our judges. The Extradition Act 2003, enacted after 9/11 for the express intention of fast-tracking extradition, removed many fundamental safeguards that traditionally formed part of the extradition process. These safeguards were built up over time to guard against the real risk that someone could be sent to a country on the basis of politically motivated charges or on the flimsiest of evidence. As has been shown in Gary McKinnon's case, the 2003 act makes no provision for a court to bar extradition even if the UK would be the most appropriate forum in which to prosecute. The act also removes the requirement to make out a basic case against a person before they can be extradited in respect of over 50 countries, including the US. It also dispensed with the requirement of dual criminality for certain offences for extradition within Europe.

When these safeguards were whittled away in 2003 many believed this was a necessary consequence of the "war on terror". Few would have thought it would apply to computer hackers with Aspergers, searching for UFOs or – as we have also recently seen – to a young student extradited on the basis of deeply flawed evidence. It is, after all, always easier to trade away the rights of others. But in truth fast-track extradition could apply to any one of us.

Liberty certainly does not argue there is no need for extradition: fugitives from justice should not be afforded blanket protection from prosecution. However, as with all aspects of the criminal justice process, there is a need for safeguards to ensure that injustice is not committed in the name of expediency. Extradition is a trauma in and of itself. It involves forcible removal to a foreign country away from family, friends and legal advisors. You may not know the language or legal system and you almost inevitably face imprisonment pending trial because being a foreigner ensures you are considered a flight risk.

Gary McKinnon is likely to face pre-trial imprisonment and a long jail sentence if found guilty. Many argue "don't do the crime if you can't do the time" but Gary McKinnon was sitting in his home in North London using his mother's computer and our parliament has not imposed such severe sanctions for the conduct alleged. This does not mean he should avoid prosecution altogether, but it does raise the question as to where is the most appropriate place for him to be tried. Arguably it is in the UK – all of the actions constituting the alleged offence took place here.

In these circumstances Liberty believes a UK court should be given the opportunity to bar extradition if it would be in the interests of justice to do so. In fact in 2006 our parliament passed legislation that would allow a court to do just that – but neither the government nor our parliamentarians have yet brought this into force. If it had been when the court initially considered Gary McKinnon's case it is likely that his extradition would have been refused. This tragic case highlights the urgent need for this provision. Earlier this year Liberty suggested an amendment (pdf) to a bill currently before parliament which would do just that. The amendment has now been laid by the Conservatives in the House of Lords. When parliamentarians return from their summer break we hope that they will support this amendment and stand up for future Gary McKinnons by giving our courts the discretion to refuse extradition when the public interest so clearly wouldn't be served.