The Abu Qatada Conundrum

by George_East on March 28, 2013

Abu QatadaThat sound of popping heard across the Home Counties yesterday was that of blood vessels bursting in anger at the latest set back for the government in seeking to deport Abu Qatada to Jordan.   The Court of Appeal handed down judgment in the Home Secretary’s appeal from the decision of the Special Immigration Appeals Commission (‘SIAC’), which had revoked Abu Qatada’s deportation order.  The judgment was given by the Master of the Rolls, England and Wales’ second most senior judge, Lord Dyson and it was given as a ‘judgment of the Court’ – that is to say that it is to be taken as a judgment that has been made by all three of the Judges sitting.

Qatada is wanted in Jordan for two very serious terrorist offences involving conspiracy to cause explosions aimed at western and Israeli targets.  Indeed he has already been tried and convicted on both of them in his absence, though the Jordanian authorities accept that they would have to try him again.  As the Court of Appeal recognised in the first sentence of its Judgment: ‘[Abu Qatada] is regarded by the United Kingdom as an exceptionally high risk terrorist’.

From the frothing at the mouth of the right wing press, this is another example of a liberal judiciary badly out of touch with ordinary folk.  However, the SIAC decision, which was handed down last November, and which was the subject of the appeal was made by a panel chaired by Mr Justice Mitting, not considered in any way to be a liberal, and a reading of the Court of Appeal judgment is revealing as to how little was actually in dispute in the hearing.  You will, of course, not pick this up from reading the news reports about the decision which are framed as a common sense Home Secretary against  out of touch liberal judges.

The great evil is, of course, said to be foreign judges and their insistence upon human rights.   I have written before that to see this as simply about Strasbourg imposing foreign law on the UK is a gross distortion of the truth.  Despite Theresa May  playing to the political gallery, the basic principles were not in any way challenged by the Home Secretary.   As the Court of Appeal stated:

Torture is universally abhorred as an evil.  A state cannot expel a person to another state where there is a real risk that he will be tried on the basis of evidence which there is real risk may have been obtained by torture.  That principle is accepted by the Secretary of State and is in no doubt’ [58].

Further in the case, the government have not sought to challenge the fact that there is a high risk that some of the key evidence against Qatada was indeed obtained by the use of torture by the Jordanian authorities.   The two statements in question are from his co-defendants:  Abu Haswsher and Al-Hamasher. The European Court of Human Rights in its judgment on the case in January 2012 had concluded that there was compelling evidence that these had been obtained by torture.   This conclusion was accepted by the Secretary of State in front of SIAC and the Court of Appeal.

The Home Secretary’s argument in front of SIAC and then on appeal to the Court of Appeal was instead on a far narrower ground.   The argument focused on the risk of the impugned statements being employed by the Jordanian authorities in a re-trial.   SIAC concluded and the Court of Appeal agreed that given the Jordanian legal system and the nature of the cases against Abu Qatada there was a real risk that those statements would be employed against Abu Qatada on a re-trial.  As I have said given the Home Secretary was not seeking to challenge the basic principle (set out above), this conclusion of the Court of Appeal inevitably meant that the Home Secretary would lose her appeal.

Given the narrowness of the challenge to the SIAC ruling it is hard to see what scope there is for a further appeal to the Supreme Court, though given the high profile nature of the case it cannot be ruled out.

Where does this leave things  if a sober view is taken of the position rather than frothing anger.  It is hard to see how the Tory wet dream of withdrawing from the ECHR or repealing the Human Rights Act is going to make much difference, as it is, rightly  accepted by the government that abhorrence of torture is a universal principle (ie it sits outside any specific ECHR treaty obligations) and that therefore it is unlawful under domestic law to deport someone to be tried on the basis of evidence procured by torture.   The Tory head banger view (articulated by Dominic Raab(id) on Newsnight) that a specific act should be passed to deal with Abu Qatada is offensive to the very nature of the rule of law.

However, there are, it seems to me, two further options.  The first is that under the Terrorism Act 2006, terrorist offences can be prosecuted in the domestic courts even if the offences took place outside of the jurisdiction.   It would follow that it might be possible to bring a prosecution in our courts, based on fresh evidence and a trial conducted in accordance with the rule of law and English due process.   I can see difficulties with this – location of witnesses, the fact that the offences took place prior to the Terrorism Act coming into effect.  However, there may, of course, be other offences with which the prosecution authorities here are better placed to advance.

The second and more palatable route is to obtain a beefed up Memorandum of Understanding from the Jordanian government about how Abu Qatada would be treated.  SIAC and the Court of Appeal both accepted, on the basis of the current Memorandum of Understanding, that any re-trial would be by judges who were independent of the Jordanian government, this takes the Home Secretary most of the way.

The outstanding  issue was the risk of the admission of the incriminating but imugned statements of Abu Hawsher and Al-Hamasher.   Surely a cast iron guarantee from the Jordanian government that such statements would not be admitted in evidence would be sufficient to dispel this concern.    Now it maybe that the Jordanian authorities do not think they have a case without these statements, but the obvious conclusion from that is that they do not have a case at all, if the statements were procured by torture.  And if they have no case without statements procured by torture then the Jordanian authorities should agree not to prosecute the offences at all. If this is achieved the logic of both the SIAC and Court of Appeal judgments is that Qatada can be deported.

It seems to me that despite all the frothing and waving of a fist in the direction of Strasbourg, the conundrum that the government finds itself in is actually resolvable, provided the Jordanian authorities are acting in good faith as to the commitment to any re-trial of Qatada being fair.  A corollary of this has to be that the impugned statements are not admitted in evidence.  It is difficult to understand why the Jordanian government or prosecuting authorities cannot provide this assurance.

{ 1 comment… read it below or add one }

Ray_North March 28, 2013 at 8:15 pm

I am really uncomfortable with the fact that we have kept this guy on remand for 11 years – it is anathema to the very rules of justice that we enjoy in this country.
If there is any evidence that this man has been inciting others to commit a crime in the UK then there are provisions within the Criminal Law to prosecute (I remember the guy who got four years for suggesting a kick off in Northwich only too well!) – of course, the reason why they won’t is because of the rules of disclosure and the fear about having to disclose security service secrets – to me, that’s not a compelling argument, the security services are there to help uphold the rules and system of justice, they are not an end in themselves. Sadly, the whole thing is a fiasco.

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