Court of Appeal rejects latest attempt to deport Abu Qatada

121113AbuQatadaMay_6898438Othman (aka Abu Qatada) v Secretary of State for the Home Department [2013] 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.

SIAC’s decision

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:

  1. 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;
  2. 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
  3. 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.

Ground 1

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”.

Ground 2

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 [2010] 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.

Comment

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.

What now?

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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8 thoughts on “Court of Appeal rejects latest attempt to deport Abu Qatada

  1. A slightly flippant prediction.

    When Abu Qatada is shipped off David Cameron will have a long white beard . . .

    . . . and so will Theresa May!

  2. The words ‘real risk’ in this area of the law are, to my mind, very problematic. If they mean substantial risk, then why not say so?

  3. Please help me out if you spot an error in desperate need of correction or suggest a way in which it could be improved – Many thanks

    MOHAMMED OTHMAN (AKA: ‘ABU QATADA’) – TIMELINE

    1960

    Born near Bethlehem, then part of the Kingdom of Jordon.

    1993

    16 September – Arrives in the UK on forged UAE passport. Applies for asylum for self, wife and three dependent children on the basis that he had been detained and tortured by Jordanian authorities and that he had been detained and later placed under house arrest on two further occasions.

    1994

    30 June – Granted refugee status and allowed to remain in Britain for four years.

    1995

    March – Qatada issues a ”fatwa” justifying the killing of converts from Islam, their wives and children in Algeria.

    1996

    15 November – European Court gives judgment in the case of Chahal v United Kingdom [1996] 23 EHHR 413 that to deport a suspected terrorist to a country where a defendant is able to prove the existence of substantial grounds for the belief that he would face a real risk of torture or other inhuman and degrading treatment by the receiving state violates Art 3 if deported. Contracting states have a duty to safeguard individuals against such treatment regardless of how undesirable or dangerous they are which cannot bear upon any decision to deport. Thus, Art 3 is wider than that provided by Arts 32 and 33 of UN Convention on the Status of Refugees 1951, but ‘deprivation of liberty’ under Art 5(1) is justified as long as deportation proceedings are ‘in progress’.(f)

    1998

    8 May – Qatada applies for indefinite leave to remain in Britain.

    1999

    April – Convicted in Jordan in his absence of conspiracy to cause explosions, in a trial known as the “Reform and Challenge” case. He was one of 13 defendants. He was sentenced to life imprisonment. The case involved an alleged conspiracy to carry out bombings in Jordan which resulted in successful attacks on the American School and the Jerusalem Hotel. The trial took place before the State Security Court (SSCt), a military tribunal. Evidence against Mr Othman included an incriminating statement made to the State Prosecutor by a co-defendant, Mr Abdul Al Hamasher. Mr Al Hamasher was convicted and sentenced to life imprisonment. At the trial Mr Al Hamasher and a number of other defendants sought, unsuccessfully, to have reliance on their statements excluded on the ground that they had been obtained by torture.

    October – Intelligence reports that Qatada gave a speech advocating the killing of Jews, that the Americans should be attacked wherever they were and that no difference between the English, the Jews and the Americans.

    2000

    In the autumn of 2000 Mr Othman was convicted in Jordan, again in his absence, in a case known as the “Millennium Conspiracy”, of conspiracy to cause explosions. The case against him included an incriminating statement made by a co-defendant, Mr Abu Hawsher to the State Prosecutor. Mr Othman was sentenced to 15 years’ imprisonment. Mr Abu Hawsher and other defendants alleged to be more deeply implicated in the conspiracy were convicted and sentenced to death. Once again he and other defendants sought unsuccessfully to have reliance on their statements excluded on the ground that they had been obtained by torture by the Jordanian General Intelligence Directorate (GID)

    5 July – United Kingdom enacts Terrorism Act 2000 containing 131 sections and 16 Schedules, intended to overhaul, modernise and strengthen the law relating to terrorism

    2001

    February – Qatada arrested by anti-terror police over suspected involvement with a terror cell in Frankfurt responsible for a plot to bomb Strasbourg Christmas market. Officers find him in possession of £170,000 in cash, including £805 in an envelope marked ”For the Mujahedin in Chechnya”. No admissible evidence to sustain a prosecution.

    24 July – UN Human Right Committee General Comment No 29 on Article 4 International Convenant on Civil and Political Rights (in para 3): “On a number of occasions the Committee has expressed its concern over States parties that appear to have derogated from rights protected by the Covenant, or whose domestic law appears to allow such derogation, in situations not covered by article 4.”

    11 September – World Trade Centre destroyed.

    October FCO advise Home Office that Art 3 ECHR precluded the deportation of Terrorist suspects to Jordan. United Kingdom is bound by the European Court’s judgment in Chahal v United Kingdom [1996] 23 EHHR 413.

    11 November – Home Secretary David Blunkett issues Human Rights Act 1998 (Designated Derogation) Order 2001 (SI: 2001/3644). The Regulation is a derogation, pursuant to Article 15(3) of the Convention from Article 5(1)(f) guaranteeing the liberty and security of the person by declaring that a ‘state of public emergency threatening the life of the nation’ exists in the United Kingdom. It enters into force on 13 November

    14 December – United Kingdom enacts Anti-Terrorism, Crime and Security Act 2001 containing 129 sections, and 8 Schedules to amend the Terrorism Act 2000; to make inter alia, further provision about terrorism and security and to make further provisions relating to immigration and asylum.

    17 December – Thirteen suspected terrorists detained in Belmarsh High Security Prison and certified under s21 Anti-Terrorism, Crime and Security Act 2001. Qatada leaves his address in Acton, South London and goes into hiding.

    17 December – Pursuant to s.33 of the Anti-terrorism, Crime and Security Act 2001 (the 2001 Act), the Home Secretary certified that Mr Othman was not entitled to the protection of Art.33(1) of the Refugee Convention because Art.1F or Art.33(2) applied to him and that his removal from the United Kingdom would be conducive to the public good.

    18 December – UK Formally notifies Secretary General of the Council of Europe of derogation from Art 5(1) ECHR.

    2002

    24 January – Council of Europe adopt Resolution 1271 resolving: “in their fight against terrorism, Council of Europe Members should not provide for any derogations to the European Convention on Human Rights…….Member States should refrain from using Article 15 of the European Convention on Human Rights (derogation in time of emergency) to limit the rights and liberties guaranteed under its Article 5 (right to liberty and security).”

    11 July – Foreign Ministers, comprising the Committee of Ministers of the Council of Europe, including Jack Straw for the United Kingdom Government adopt ‘Guidelines on Human Rights and the Fight against Terrorism’. Part XII)2) (at page 33 reads:

    “It is the duty of the State that has received a request for asylum to ensure that the possible return (‘refoulement’) of the applicant to his/her country or origin or to another country will not expose him/her to the death penalty, to torture or inhuman or degrading treatment or punishment. The same applies to expulsion.”

    23 October – Qatada is arrested by police in a council house in South London pursuant to the Anti-Terrorism, Crime and Security Act 2001 and detained in Belmarsh high-security jail under section 23 thereof. Home Secretary certifies under section 21 of the 2001 Act that he believes Qatada is a terrorist and a threat to national security. Certificate signed by Home Secretary accompanies by covering letter stating:

    “You undertake a range of support activities, including fundraising, on behalf ofvarious international terrorist organisations, including networks associated with Usama [sic] Bin Laden. You have made public statements of support for the violent activities of these groups and a number of individuals arrested in connection with terrorist attacks have acknowledged your influence on them.”

    Home Secretary refuses to vary Qatada’s leave to remain in the UK

    2003

    20 January – UN Security Council adopt UN Resolution 1456 para 6:

    “6. States must ensure that any measure taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law.”

    March – FCO considers whether key countries would provide assurances that potential deportees would be treated in a manner consistent with the UK’s obligations under Art 3.

    13 June – Qatada’s appeal to SIAC against deportation fails.

    November – British Embassy in Amman instructed by FCO to raise the idea of a framework MOU with the Jordanian Government.

    10 December – UN Human Rights Committee para 7 CERD/C/63/CO/11:
    “17. The Committee is deeply concerned about provisions of the Anti-Terrorism, Crime and Security Act which provide for the indefinite detention without charge or trial, pending deportation, of non-nationals of the United Kingdom who are suspected of terrorism-related activities…”

    2004

    21July – Parliamentary Joint Committee on Human Right 18th Report Session 2003-2004 (HL Paper 158) para 4: “Derogations from human rights obligations are permitted in order to deal with emergencies. They are intended to be temporary. According to the Government and the Security Service, the UK now faces a near-permanent emergency.”

    16 December – A (and others) v Secretary of State for the Home Department [2004] UKHL 56. HOL uphold 8-1 appeal by Qatada and others that detention under section 23 Anti Terrorism, Crime and Security Act 2001 violated Articles 5 and 14 ECHR. Human Rights Act 1998 (Designated Derogation) Order 2001 (SI: 2001/3644) quashed. Per Lord Hoffman (para 97) “The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.” Despite judgment in their favour and against the government, the suspects remain in indefinite detention in Belmarsh because of the operation of section 4(6) HRA 1998 and the non-binding nature of judgments until the government decide to use the fast-track procedure under section 10 to introduce amending legislation.

    2005

    11 March Qatada released on conditional Bail by SIAC. – Anti Terrorism, Crime and Security Act 2001 repealed. and made subject to a control order, under the Prevention of Terrorism Act 2005 , on the following day. That order remained in force until August 11, 2005

    10 August Memorandum of Understanding (MoU) was signed between the United Kingdom and Jordan. This contained the following assurances:

    “7. A returned person who is charged with an offence following his return will receive a fair and public hearing without undue delay by a competent, independent and impartial tribunal established by law. Judgment will be pronounced publicly, but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
    8. A returned person who is charged with an offence following his return will be allowed adequate time and facilities to prepare his defence, and will be permitted to examine or have examined the witnesses against him and to call and have examined witnesses on his behalf. He will be allowed to defend himself in person or through legal assistance of his own choosing, or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”

    An express undertaking was given that, if Mr Othman were deported to Jordan, the MoU would be applied in his case.

    11 August – Mr Othman was served with a notice of the Secretary of State’s intention to deport him to Jordan on the ground that he was a threat to national security. He was detained pending deportation and remained detained until granted bail on 17 June, 2008.

    24 October The Adaleh Centre for Human Rights (Adaleh) signed an agreement with the UK Government under which it would monitor the due performance of the obligations undertaken by Jordan under the MoU

    2006

    May – Othman appeals to SIAC. He challenged the Secretary of State’s finding that his deportation was justified on the grounds of national security, although he did not advance a positive case in relation to this issue. He contended that he was protected from deportation by his status as a refugee and, in particular, that art.1F of the Refugee Convention had no application on the facts of his case. He contended that his deportation would infringe his rights under arts 2, 3, 5, 6 and 8 of the Human Rights Convention and that it was an abuse of power to subject him to deportation. Case heard over five days under the chair of Ouseley J

    5 Dec – BB (subsequently retitled ‘RB’) v Secretary of State for the Home Department (SC/39/2005, 5 December 2006) para 9, Mitting J lays down four criteria in relation to assurances:

    (1), Are the term of the assurance such that if fulfilled, the returnee will not be subjected to treatment in violation of Article 3?
    If so,
    (2), Have the assurances been given in good faith?
    if so,
    (3) Is there a sound objective basis for the belief that the terms will be fulfilled?
    if so,
    (4) Are the assurances capable of being verified?

    2007

    26 Feb – Omar Othman (aka Abu Qatada) v. Secretary of State for the Home Department SC/15/2005 SIAC dismissed Mr Othman’s appeal against deportation. So far as concerned the question of whether his deportation was justified by interests of national security they made findings of relevance not only to that issue but to the interest that the Jordanian authorities would pay to him on his deportation. Their conclusion was that he,
    “… has given advice to many terrorist groups and individuals, whether formally a spiritual adviser to them or not. His reach and the depth of his influence in that respect is formidable, even incalculable. It is not a coincidence that his views were sought by them. He provides a religious justification for the acts of violence and terror which they wish to perpetrate; his views legitimised violent attacks on civilians, terrorist group attacks more generally, and suicide bombings. He may have spoken against some grosser excesses, but that does not go very far. Even if his views are sometimes couched in careful language, their import is clear to those who take notice of what he says and know how to interpret it. His views, scholarly in any conventional sense or not, are important to extremists seeking to justify violence.”

    SIAC rules Art.33(1) of the Refugee Convention inapplicable because he was a danger to the security of the United Kingdom and therefore fell within the exception in Art.33(2) . In the event, however, SIAC held that Art.1F(c) had deprived Mr Othman of refugee status by reason of his terrorist activity since he was recognised as a refugee.

    Othman’s deportation would not infringe his rights under Art.3. The assurances given by the Jordanian authorities were sufficient. There must be a real risk that he would be ill-treated in custody. As it was, the fact that he would have a very high profile coupled with the MoU, and the diplomatic capital invested in it, meant that the Jordanian authorities were likely to make sure that he was not ill-treated in custody or when he emerged from it.

    no real risk of a flagrant breach of Mr Othman’s right to liberty under Art.5 since unlikely that he would be detained for full 50 days provided for under Jordanian law.

    Art 6 not engaged.

    (a), The military court despite being part of a military hierarchy is accountable to the executive and thus a fair and impartial tribunal.

    (b) the correct test of the right to a fair trial and other qualified rights was laid down by the House of Lords in R (Ullah) v Special Adjudicator [2004] HRLR 33, which held that the ‘real risk’ of a flagrant breach of Article 6 would be met if the right was completely destroyed or nullified by the country of destination. The possibility of the introduction of torture-tainted evidence amounting to a serious or discriminatory interference with a protected right is insufficient. Looked at as a whole, this threshold was not met.

    2008

    9 April – Othman (Jordan) v Secretary of State for the Home Department [2008] HRLR 26. Court of Appeal holds that Art 6 is engaged. Buxton LJ held at para 51 SIAC understated or misunderstood the fundamental nature in Convention law of the prohibition against the use of evidence obtained by torture. Once SIAC had found as a fact that there was a high probability that evidence that may have been obtained by torture, or in breach of Art.3 , would be admitted at the trial of Mr Othman, it had to be satisfied that such evidence would be excluded or not acted on. The grounds relied on by SIAC for not finding a threatened breach of Art.6 in that respect were insufficient

    May – Qatada is granted bail by the immigration tribunal but told he must stay inside for 22 hours a day.

    June – He is released from Long Lartin jail in Worcestershire and moves into a four-bedroomed home in west London.

    November – He is re-arrested after the Home Office tells an immigration hearing of fears he plans to abscond.

    December – Qatada’s bail is revoked by the Special Immigration Appeals Commission (Siac) after hearing closed evidence that the risk of him absconding has increased.

    2009

    18 February – House of Lords hear joined cases RB (Algeria) Secretary of State for the Home Department OO (Jordan) v Secretary of State for the Home Department [2009] H.R.L.R. 17 Secretary of State appeals on the ground that s7 Special Immigration and Appeals Commission Act 1997 only allows the Court of Appeal jurisdiction to hear issues of law and not fact. Unless SIAC’s decision was capable of being held void on public law grounds, the decision to deport should stand. The House of Lords held that Section 6(1) Human Rights Act 1998 did not impose a positive duty on the Court of Appeal to carry out a full review of SIAC’s decision. Its role was a secondary reviewing function limited to questions of law;

    Here the Court of Appeal had no general power to review SIAC’s conclusions that the facts that they had found did not amount to a real risk of a flagrant breach of the relevant Convention rights. This was a question of fact, not of law. SIAC’s conclusions could only be attacked on the ground that they failed to pay due regard to some rule of law, had regard to irrelevant matters, failed to have regard to relevant matters, or were otherwise irrational. Their decisions could also be attacked on the ground that their procedures had failed to meet requirements imposed by law. The conclusions of SIAC in relation to the appellants were not irrational;

    Thus, the appellants could be deported.

    (1),The assurances could be relied upon to substantially diminish the risk of a violation of Article 3 the House of Lords would not substitute its own judgment of the level of risk for that of SIAC and
    (2), there were insufficient grounds for considering that if deported, Othman would face a trial in flagrant breach of Article 6

    19 February – Qatada is awarded 2,800 euro (£2,500) compensation by the European Court of Human Rights after the judges rule that his detention without trial in the UK under anti-terrorism powers breached his human rights.

    2012

    17 January – Othman v United Kingdom [2012] 55 EHRR 1
    Court held, no jurisdiction to rule on propriety of seeking assurances, but since assurances in and of themselves are insufficient, the court merely seeks to examine whether such assurances are sufficient to remove risk of ill-treatment.

    Relevant facts. Factors to be taken into account include:

    (a) whether the assurances were specific or vague;

    (b) whether the person giving the assurances could bind the receiving state;

    (c) whether they concerned treatment which was legal or illegal;

    (d) whether they had been given by a Contracting State;

    (e) the length and strength of relations between the states;

    (f) whether compliance could be verified or monitored and whether there was unfettered access to the applicant’s lawyer;

    (g) whether there was an effective system of protection against torture and a willingness to co-operate with monitoring mechanisms and to investigate allegations of torture;

    (h) whether the applicant had previously been ill-treated in the receiving state; and

    (i) whether the reliability of the assurances had been examined by the domestic courts of the sending/Contracting State.

    Torture endemic in Jordon but quality of assurance was sufficient to allow deportation which would not violate Article 3

    Art 5 – No violation. 50 days detention under Jordanian law fell far short of the risk of a breach of Article 5

    Art 6. Torture was endemic in Jordon. If Abu Hawsher and Al-Hamasher had been beaten on the soles of their feet as alleged, such ill-treatment amounted to torture. In systems with impartial and independent judiciaries where torture allegations were properly investigated, the applicant would have to discharge a high burden of proof. In systems complicit in torture, such a burden of proof is inappropriate. Torture is a flagrant denial of justice, its use in trial proceedings is the destruction of rights guaranteed by Article 6 and renders the outcome illegal and immoral. This was consistent with international law principles, and the approach taken in “domestic” cases, such as Gäfgen v Germany (2011) 52 E.H.R.R. 1 . The applicant had met the burden of proof and demonstrated a real risk of a flagrant denial of Justice if he was deported to Jordan. The applicant’s deportation to Jordan was in violation of Art.6

    6 February – SIAC rules he can be released on bail, despite posing a risk to national security.

    9 February – David Cameron and King Abdullah of Jordan agree on the ”importance of finding an effective resolution” to his case, Downing Street says.

    13 February – It emerges that Qatada has been released on strict bail terms from Long Lartin prison. Bail conditions include 22-hour curfew.

    17 April – Hansard HC Deb 17 Apr 2012 Columns 173-175 Qatada arrested by Border Agency and detained on orders of Home Secretary who, following further Jordanian ‘assurances’ resumes deportation. Home Secretary makes statement to Parliament: Hansard HC Deb 17 Apr 2012 Columns 173-175 States that Government ‘vehemently disagrees with ECtHR judgment arrived at on ‘unprecedented grounds’ Confirms that Government will not submit case to Grand Chamber and pledges an end to what the government sees as ‘abuses of human rights law’.

    17 April – Mohammed Othman v Secretary of State for the Home Department [2012] Mitting J terminates bail for Quatada because of possibility that Qatada will be helped to abscond. Conizance taken of warnings issued on Jihadi websites and “Al Qaeda will “open the gates of evil into Britain and its citizens everywhere”. “We warn the British Government against extraditing Sheikh Abu Qatada to Jordan”. “Act with reason and wisdom … or you will regret it”. Mitting gives Home Secretary three weeks to affect deportation or, if the order is not struck down by the Divisional Court, SIAC would release Qatada to Bail.

    17 April – Othman (Abu Qatada) v. the United Kingdom (application no. 8139/09) Qatada lodges and appeal with Grand Chamber on 17 April at 172315A (French Time) alleging chamber judgment of 17 January 2012 in error in holding that he was not at risk of torture. Home Secretary condemns Qatada’s appeal as ‘delaying tactics’ and states that appeal is ‘out of time’

    30 April – Al Qaida’s North African branch, al Qaida in the Islamic Maghreb, offers to free British hostage Stephen Malcolm if Qatada is released by the UK. On the same day, then-immigration minister Damian Green says repeated failed attempts to deport Qatada have cost £825,000 in legal fees since 2002 and confirms that the bill will continue to grow.

    9 May – Othman (Abu Qatada) v. the United Kingdom (application no. 8139/09) Panel of 5 judges found that Qatada’s submission of 17 April had been submitted within the three month time-limit for such requests. However, it considered that the request should be refused. Accordingly, the Chamber’s judgment of 17 January 2012 would stand.
    25 May – Aba Qatada appeals SIACs refual of bail, hearing on 28 May
    28 May Mohammed Othman v Secretary of State for the Home Department [2012] Information given to SIAC by Home Secretary that each of the two witnesses in Jordan were free is false. At least one of them remains in custody of GID. Bail refused. Mitting J takes into account presence of external AQ threat and likelihood that they will assist Qatada to abscond. Police manpower stretched for Olympics which will be seriously threatened if resources have be diverted to find Qatada. Nothwithstanding Qatada has now been deprived of his liberty without charge for 7.5 years, he is to remain in custody.

    9 August – R (Othman) v Special Immigration Appeals Commission, Secretary of State for the Home Department and Governor of HMP Long Lartin [2012] EWHC 2349 (Admin) Qatada submits applications for habeas corpus and for permission to seek judicial review arising from his detention and from the decision of the Special Immigration Appeals Commission (“SIAC”) (Mitting J), given on 28 May 2012. Bail refused, High Court not prepared to go behind the specialized closed material available to SIAC

    10 October – Qatada’s appeal hearing, which will test the assurances offered by Jordan, is heard by Siac president Mr Justice Mitting, Upper Tribunal judge Peter Lane and Dame Denise Holt.

    12 November Othman v Home Secretary [2012] UK/SIAC 15/ SIAC allows Othman’s appeal. It set out two critical questions to determine whether there was a real risk that these statements would be admitted in the case against Qatada in Jordan:

    1) Irrespective of the means by which they were obtained, are these statements now admissible at all under the Jordanian Code of Criminal Practice?

    2) If they are, is there a real risk they will be admitted even though there is a ‘real risk’ that they were obtained by torture?

    SIAC concluded, there remains a real risk that torture-tainted evidence will be relied on at his retrial in Jordan. First, Jordanian law may make the previous statement of a former co-defendant admissible as evidence, as well as live testimony from him (equally, it may not);

    second, if the evidence is admissible, Jordanian law may only permit judges to exclude it if Qatada can prove it was actually gained by torture (the Jordanian government says the prosecution would have to prove is was not gained by torture).

    In these circumstances, since according to SIAC there is a real risk torture evidence will be used against him, deportation would lead to a flagrant denial of justice and so breach Abu Qatada’s article 6 right to a fair trial as held by the ECtHR held in January.

    In short, therefore, SIAC has ruled that Theresa May did not, after all, obtain assurances from Jordan firm enough to change the underlying factual background, so making the European Court’s ruling inapplicable.

    The government has confirmed that it will appeal. Difficult given that SIACs judgments can only be appealed on questions of law – the very argument which the government succeeded on in the House of Lords in February 2009 in the RB case! Whether or not a real risk of torture exists is a question of fact not law unless SIAC has engaged in factual irrationality, an issue of law, by applying the wrong factual test,ie, some risk as opposed to real risk. If appeal by Secretary of State fails, the legal basis of detention falls away. Possibility of TPIM under Terrorism Prevention and Investigatory Measures Act 2011

    13 November – Qatada released on strict bail.

    2013

    2 March – Home Secretary ‘ups the anti’ in advance of appeal hearing by attacking judiciary for failing to give effect to Ministerial ‘guidance’ on deportations and announces to ‘Mail on Sunday’ that Government intends to withdraw from the European Convention by the next general election in 2015.

    7 March – Qatada’s home raided and searched at 1830 hours by UKBA – arrested for alleged ‘breach’ of bail conditions prior to Home Secretary’s appeal hearing.

    9 March – SIAC (Urwin J) hears evidence that Qatada allegedly broke bail condition which prohibit him from permitting a mobile phone to be switched on in his home. Qatada’s ordered to return to HMP Belmarsh pending a full hearing of the case expected on 21 March.

    11 March – Court of Appeal sheduled to hear Home Secretary’s appeal against SIAC judgment in Othman v Home Secretary [2012] UK/SIAC 15/ of 12 November 2012.

    27 March – Omar Othman aka Abu Qatada v Secretary of State for the Home Department [2013] EWCA Civ 277. Key paragraphs: 5,6, 57 – 58. Home Secretary fails to establish that SIAC erred in law in their judgment of 12 November. Home Secretary to appeal to the Supreme Court.

    27 March – J1 v Secretary of State for the Home Department [2013] EWCA Civ 279. Jackson, Elias and Treacy LJJ reverse SIAC SC/98/2010 in respect of an Ethiopian deportee raising, inter alia, Art 3. COA establish that whether a foreign human rights body was competent to monitor the conduct of state officials (condition 4 of BB (subsequently retitled ‘RB’) v Secretary of State for the Home Department (SC/39/2005, 5 December 2006)(supra) is a question for determination by SIAC on the basis of current evidence – Such a determination could not be delegated to the Secretary of State to determine the issue at some time in the future and in so doing cut down the protection to which an individual was entitled by requiring him to challenge the Secretary of State’s decision by way of judicial review.

    • John – this line in your article is wrong:

      “So although the European Convention on Human Rights has been in force since 1953, it was never used to block the deportation of a foreign national to the country of his nationality until Abu Qatada decided to give it a go.”

      There have been plenty of foreign nationals who have used the ECHR to block their deportation, e.g. Chahal

      • Thanks for pointing that out Adam. I should have made clear that it was the first time article 6 has been used to block the deportation of a foreign national to the country of his nationality. The deportation in Chahal was blocked under article 3 (torture).

        It is the novel use of article 6 (fair trial) that shows how the living instrument approach of the ECHR enables the Strasbourg court to find new ways to regulate areas of life that the law should stay clear of.

  4. @john Holbrook

    Great article John. I’d always thought the ECHR and the legislation was a bit dodgy. Now you explain it as “living” and subject to any interpretation any judge wants to put on it, I can now understand the complete farce that is human rights.

    This rendition thing has a lot more going for it I think.

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