Othman (aka Abu Qatada) v Secretary of State for the Home Department  EWCA Civ 277 – read judgment
The Home Office last night assured its 70,000 Twitter followers that “it is not the end of the road”. Yet by the time she had reached page 17 of the Court of Appeal’s dismissal of her latest attempt to deport Abu Qatada, it might well have seemed that way to Theresa May.
In November, the Special Immigration Appeals Commission (SIAC) ruled that Qatada could not be deported to face a retrial for alleged terrorism offences due to the real risk of “a flagrant denial of justice”. Read my post on that decision here. Yesterday, Lord Dyson – the Masters of the Rolls and second most senior judge in England and Wales – together with Lord Justices Richards and Elias, rejected the Home Secretary’s appeal.
In line with last year’s Strasbourg judgment in Othman (Abu Qatada) v. United Kingdom, Application No. 8139/09, the key issue for SIAC had been whether there was “a real risk of a flagrant denial of justice” so as to render Qatada’s deportation a breach of the UK’s obligations under Article 6 of the European Convention on Human Rights. That depended on whether there was a real risk of statements by his former co-accused being admitted probatively at his retrial, it being common ground that there was a real risk both that those statements would be admitted and that they were obtained through the use of torture.
After hearing inconclusive evidence from experts in Jordanian law and criminal procedure, and Counsel for the Secretary of State’s description of a number of possible outcomes at the retrial, SIAC concluded:
The Secretary of State has not satisfied us that, on a retrial, there is no real risk that the impugned statements of Abu Hawsher and Al-Hamasher would be admitted probatively against the appellant. Until and unless a change is made to the Code of Criminal Procedure and/or authoritative rulings are made by the Court of Cassation or Constitutional Court which establish that statements made to a public prosecutor by accomplices who are no longer subject to criminal proceedings cannot be admitted probatively against a returning fugitive and/or that it is for the prosecutor to prove to a high standard that the statement were not procured by torture, that real risk will remain.
Abu Qatada was going nowhere.
The Court of Appeal
The Home Secretary’s appeal rested on two grounds. The first was that SIAC had erred at paragraph 73 of its judgment in holding that there would be a flagrant denial of justice on transfer to Jordan unless it could be established that the state prosecutor would bear “the burden of proving to a high standard” that the impugned statements would not be admitted in evidence. The second was that the Commission had failed to consider “in the round” the question of whether there was a real risk of a flagrant denial of justice.
This second ground could be broken down into three elements:
- It was wrong to consider separately rather than in combination the risks that the statements had been obtained by torture and that they would be admitted at the retrial;
- It was wrong to consider separately and not cumulatively the two “critical” questions of Jordanian law or “potential obstacles” to the admission of the statements: the first, whether the statements could be admitted at all regardless of how they were obtained, and the second, whether a recent constitutional change altered satisfactorily the admissibility of confessions extracted by torture; and
- In assessing the risk that the statements would be admitted, SIAC focused exclusively on the two critical questions above and failed to consider other possibilities that might have affected the assessment of that risk.
The Secretary of State argued that SIAC had erred by elevating the requirement that the burden of proof be placed on the prosecutor from being one of a number of factors relating to real risk of a flagrant denial of justice to being determinative of the risk.
This was given short shrift by the Court. As James Eadie for the Secretary of State had acknowledged, at paragraph 23 of the SIAC judgment Mr Justice Mitting stated that the provisions relating to burden of proof were “important factors” but not “determinative.” SIAC had considered those provisions in the light of the facts of the case before it, in which it was clearly very difficult for a defendant to demonstrate that torture had occurred. In this case, the only way of eliminating the real risk that the statements would be admitted would be to place the burden of proof on the prosecutor to demonstrate to a high standard that they would not be.
The alternative argument in support of Ground 1 was that it was plainly wrong to hold on the facts of this case that the burden of proof should be placed on the prosecution. Mr Eadie referred to a number of factual matters that ought to have swung SIAC’s assessment the other way.
Here, the Court of Appeal dismissed what it viewed as objections to SIAC’s evaluation of the facts rather than to its application of the law. As the Court underlined at various points in its judgment, the Home Secretary could only appeal on a point of law. In any event, SIAC did take into account the independence, impartiality and conscientiousness of the proposed Jordanian court, thereby dealing with the Home Secretary’s “central complaint”.
The Secretary of State argued that SIAC was wrong to consider separately rather than in combination the risks that the impugned statements had been obtained by torture and that they would be admitted at the retrial. It was established law that a small risk multiplied by another small risk resulted in an even smaller risk.
Yet, the Court pointed to how SIAC’s analysis reflected the manner in which the arguments were presented to it by the parties, which was consistent with how the previous Strasbourg judgment had approached the relevant risks. Further, as the European Court’s judgment made clear, this was not a case where there was only a slight possibility that the statements had been obtained by torture. Had that risk have been remote, then SIAC would have had to have taken this remoteness into account in considering more generally whether there was a risk of a flagrant denial of justice.
The Court of Appeal went on to consider together the remaining sub-grounds, which both related to SIAC’s focus upon the two “critical questions” of Jordanian law. It was satisfied that whilst the Commission had concentrated on those questions, it had also considered other factors including “the nature and composition of the court which will retry him and, insofar as it can be ascertained, the attitude of the judges.” It did not accept that SIAC had failed to consider the potential obstacles to the admission of the statements cumulatively, citing MA (Somalia) v Secretary of State for the Home Department  UKSC 49 as authority for the proposition that the court should be slow to infer that where a relevant point is not expressly mentioned by a specialist tribunal it has not been taken into account.
Since the relevant law in relation to both critical questions of Jordanian law was so uncertain, SIAC could only conclude that there was a real risk that the evidence obtained by torture would be admitted. The Court also pointed to how the focus upon the two critical questions again reflected the focus of leading counsel before SIAC – “those were the live issues in the case as it was presented by the parties.”
In any event, the Court was “not satisfied that SIAC did in fact approach the question of whether there was a real risk that the impugned statements would be admitted in such a narrow way.” The two critical questions of Jordanian law were merely “at the forefront” of its analysis. Out of an apparent abundance of caution, the Court of Appeal addressed in turn each of the seven possible outcomes suggested by counsel for the Secretary of State, Robin Tam QC, in his closing submissions to SIAC. The Commission dealt with these also (save those that were speculative or without foundation) and was entitled to conclude that these possible outcomes, whilst not deemed irrelevant, did not “determine” the narrow questions it had to decide.
The Special Immigration Appeals Commission Act 1997 states at section 7 that appeals from SIAC may be made on a question of law material to SIAC’s determination. By the time the two grounds of appeal in this case had been deconstructed, it was clear that the Secretary of State was really objecting to SIAC’s analysis of the facts rather than seeking to establish that its approach was wrong in law.
The Court of Appeal’s scope of review was curtailed further as a result of the deference to be accorded to specialist tribunals. On appeals from SIAC – a tribunal whose usual diet is immigration matters in a national security context and which often flips between open and closed proceedings – one might expect that this limitation would, more often than not, work against the individual. This time, however, it was the Home Office that suffered from the light touch review to which the appellate court felt it should confine itself.
The Court of Appeal’s overall conclusion from paragraph 56 onwards illuminates the importance of the principles at stake in this case. “Strasbourg has rightly set the bar very high” in terms of the circumstances in which a state will be prevented from deporting persons to face trial in another country, hence the “real risk of a flagrant denial of justice” test. But ultimately this is a case about torture, which the court tells us “is universally abhorred as an evil”.
Yet the importance of the Article 6 guarantee in this context perhaps lies in the complacency of that statement. The peremptory status of the jus cogens norm prohibiting torture does not prevent its breach on a fairly routine basis in legal systems around the world, even in 2013. Consequently, where individuals are transferred to face trial abroad, the sending state must satisfy itself that its own intolerance of torture is adequately reflected in the receiving state’s legal system, including in its approach to torture-extracted evidence.
Once again, the state’s seemingly legitimate interest in seeking to deport an individual it views as a dangerous terrorist to face trial for terrorist offences in his home country has been frustrated by what must surely be a much greater interest: the repudiation of torture. The courts have to navigate the conflicting interests at play in difficult cases whose practical outcomes might well enrage large sections of society, whilst ensuring that respect for our most important constitutional norms is preserved and promoted. For more on this theme, see Adam Wagner’s post following the SIAC decision.
The Home Office says its plans to seek permission to appeal to the Supreme Court. But the difficulties it faced in identifying points of law on which to appeal from SIAC suggest that sands may have to shift elsewhere if Abu Qatada is ever to be deported. But equally, some fourteen months after the European Court ruled that Qatada could not be deported, it is difficult to see what can realistically be achieved by further bilateral discussions with Jordan. Negotiations with the executive branch of the Jordanian government can (one would hope) have no impact upon the likelihood of relevant pronouncements by the Jordanian courts as to the admissibility of the impugned statements. Similarly, the changes that would be required to the country’s criminal procedure code have not materialised to date and there is nothing to suggest any imminent reforms.
As a result, it seems that the Government’s best hope of quelling the growing dissatisfaction with the Qatada problem might stem from his recent arrest by police investigating the use of extremist material. He is currently on remand at Belmarsh Prison and his status of having never been charged with an offence in the UK seems under threat.
So whilst Qatada may be looking forward to a future in Britain, it could begin with some further time behind bars. However, criminal charges in the UK will do nothing to remove the obstacles preventing Abu Qatada’s deportation which, for the Government, is becoming both a more pressing and remote objective by the day.
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