The Times on Abu Qatada

Muslim cleric Abu Qatada prepares to board a small aircraft bound for JordaI have an opinion piece in today’s Times on Abu Qatada. It is behind a paywall so I can’t reproduce it here, but you can probably guess from the title what my theme is: Abu Qatada’s case shows the human rights system worksEnjoy (if you have access).

Here is a taster:

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Last week not a good one for Theresa May: not just Abu Qatada


132957J1 v  Secretary of State for the Home Department, 27 March 2013 – read judgment

A UKHRB editor, Angus McCullough QC, was a Special Advocate for J1 before the Court of Appeal, but not in SIAC below. He had nothing to do with the writing of this post

Hot on the Home Secretary’s loss of the Abu Qatada appeal, a reverse for her in another deportation case about someone whom the Court of Appeal described as “an important and significant member of a group of Islamist extremists in the UK,” and who was said to have links – direct or indirect – with men involved in the failed July 21 2005 bombing plot.

The general contours of the case will be familiar to Abu Qatada watchers, with claims under Articles 3 and 6 of the ECHR  amongst others – that if J1 was returned to his country of origin (here, Ethiopia), his human rights would not be respected. There are however a number of interesting features about this decision of the Court of Appeal; firstly, it reversed a decision of  the Special Immigration Appeals Commission against J1 on Article 3 (recall the heightened regard for SIAC as a specialist tribunal in the Abu Qatada appeal) , and secondly (in dismissing the Article 6 claim) it illustrates graphically some of the dilemmas facing Special Advocates when representing their clients in the imperfect world of “closed procedures” (a.k.a secret trials).

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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.

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Debating the Abu Qatada affair – Gavin Phillipson

I watched the BBC’s flagship political debate Question Time last week and saw a panel of senior politicians from the three main parties plus UKIP debate the implications of the Abu Qatada affair with the audience. You can watch it here (starts at 8 mins 27 seconds) and I urge you to do so. I found the debate illuminating and alarming in equal measure; it made me reflect seriously on how precarious Britain’s interwoven system of international and domestic protection for human rights may actually be these days.

It seems a long time ago that we naively thought that repeal of the Human Rights Act was “unthinkable” – now withdrawal from the European Convention on Human Rights (ECHR) itself must seemingly be taken as a serious possibility, depending on the outcome of the next election.  The failure of the HRA to implant itself into our political, still less our popular culture was starkly apparent from the debate: I don’t think anyone even mentioned it. A statute that should surely be an important reference point in any discussion of a contemporary UK human rights issue has become so marginalised and misunderstood that it simply didn’t come up. Can one imagine American – or German – politicians discussing such an issue without mentioning their constitutional Bills of Rights – or Canadians, without mentioning the Charter?

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Abu Qatada: in the public interest

You may have heard that the Special Immigration Appeals Commission (SIAC) decided on Tuesday that Abu Qatada, an alleged terrorist who has been detained for the best part of the last seven years awaiting deportation to his native Jordan, cannot be deported. There would be a real risk, ruled SIAC, that he would face a flagrant denial of justice in his ensuing trial.

Jim Duffy has already commented on the case here, but I thought it would be useful to look at some of the commentary which followed the decision. A bit like the latest Israel-Gaza escalation, controversial human rights decisions now elicit an almost instant (and slightly sad) our-camp-versus-theirs reaction. Following a decision each ‘side’ trundles into action, rolling out the clichés without thinking very hard about the principles. The Prime Minister himself somewhat petulantly said he was “fed up” and “We have moved heaven and earth to try to comply with every single dot and comma of every single convention to get him out of this country.”

It is easy to moan about inaccurate coverage (I often do). But in this case, I do think the strong, almost visceral, reaction to the decision is justified. Leaving aside the slightly mad tabloid anti-Europe or effectively anti-justice coverage, it is understandable that people are uneasy and upset about this decision to keep a suspected terrorist within our borders, and then release him. But that doesn’t mean the decision is wrong.

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Abu Qatada: Preventing a flagrant denial of justice

Othman (Abu Qatada) -v- Secretary of State for the Home Department (appeal allowed) [2012] UKSIAC 15/2005_2 – read judgment

Angus McCullough QC appeared for Abu Qatada as his Special Advocate in these proceedings before SIAC. He is not the author of this post.

Earlier today, Abu Qatada was released from Long Lartin prison following his successful appeal before the Special Immigration Appeal’s Commission (SIAC). Qatada was challenging the decision to deport him to Jordan, where he faces a retrial for alleged terrorism offences.  

For most of the last decade, Abu Qatada has been detained pending deportation to his home country. At his two original trials, he was convicted in absentia and sentenced to full life imprisonment with 15 years’ hard labour.

In his latest challenge to his deportation, SIAC concluded, as the European Court of Human Rights had in May 2012, that due to the real risk of a flagrantly unfair trial in Jordan, Qatada could not be deported there.  Continue reading

The triple Olympic detainee

Othman, R (on the application of) v Special Immigration Appeals Commission (SIAC) & Ors [2012] EWHC 2349 (Admin) – read judgment 

Angus McCullough QC represented Abu Qatada as his Special Advocate in the SIAC proceedings.

Along with many others, today I find myself emerging from an Olympic haze. And alongside that morning-after blur comes a nagging feeling that it is time to get back to blogging. Why not start with a man who has watched the last three Olympic Games during what the High Court describes as an “enormously lengthy” period of  detention without charge, and whose last bail application was refused as it would be too difficult to keep track of him during the 2012 Olympics?

The last two or so weeks have been a wonderful time to be in London. Aside from the slightly naff closing ceremony, everything about the sporting carnival has been positive. It has also been a great time to be working in Temple, which has been converted into ‘Belgium House‘ for a fortnight.

Before returning to unlawful detention and Abu Qatada, a personal reflection. The first time I ever visited the Inner Temple was for a scholarship interview which took place on 9 July 2005. I will always remember the date because I had come to London for the interview on 6th July, the day on which the Games were awarded to London. The following day, I was on a bus on the way into town reading a newspaper headline about the Olympics, when I read on the BBC website that there had been a bomb on a tube. I jumped off the bus and flagged a taxi going the opposite direction, and the taxi driver told me he had just seen a bus blow up in Tavistock Square.

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Taking stock after Abu Qatada: Assurances, secret detention and evidence in closed proceedings

XX v Secretary of State for the Home Department [2012] EWCA Civ 742 – Read judgment

The Court of Appeal recently issued its judgment in XX v Secretary of State for the Home Department [2012] EWCA Civ 742, an appeal from a decision of the Special Immigration Appeals Commission (“SIAC”) upholding the Secretary of State’s decision to deport an Ethiopian national on grounds of national security.

XX, who had indefinite leave to remain, had been assessed to have attended terrorist training camps and to have regularly associated with terrorists in the UK. SIAC was satisfied on the facts that XX posed a threat to the national security of the UK and determined that the deportation would not breach Articles 3, 5 and 6 of the European Convention on Human Rights. XX appealed on the ground that in finding no incompatibility with the Convention, SIAC had erred in law.

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Abu Qatada detention will continue through Olympics

Mohammed Othman v Secretary of State for the Home Department, 28 May 2012 – read judgment

This was a further application for bail to the Special Immigration Appeals Commission (SIAC) after the appellant had failed in his application to the Grand Chamber of the Strasbourg Court earlier this month, but had launched an appeal to be heard by SIAC, against the Home Secretary’s refusal to revoke his deportation order.

Angus McCullough QC appeared for Abu Qatada as his Special Advocate in these proceedings before SIAC. He is not the author of this post.

A full hearing will take place in October. Until then, bail has been refused and Abu Qatada will remain in detention.

Given the evidence before him, Mitting J had to base his judgment on the assumption that the Secretary of State would not have maintained the deportation order unless convinced that she was in possession of material which could support her resistance to the appellant’s appeal and which could satisfy “the cogently expressed reservations of the Strasbourg Court about the fairness of the retrial”which the appellant would face in Jordan.

Two consequences flowed from these developments, according to the judge. One is that SIAC’s final decision in October is likely to put an end to this litigation. The second is that the risk of Qatada absconding has increased, if he assumes, in the light of the expressed determination of the Secretary of State, that he would not avoid deportation to Jordan by litigation in and from the United Kingdom. Continue reading

Time, time, time, look what’s become of me

In law, time can be everything. Every lawyer will have experienced waking up in the middle of the night in a cold sweat at the realisation that a time limit has been missed. Courts often have the discretion to extend litigation time limits, such as under rule 3.1 of the Civil Procedure Rules, but simple mistakes by lawyers rarely generate sympathy from judges. Even scarier, judges sometimes do not even have the power to extend time at all, however unfair the circumstances. The idea is to encourage certainty and predictability in the legal system.

The lesson of principle is that lawyers should never take risks on time limits. The practical reality is that this is a very easy to say  in retrospect. And so we reach the difficult case of Abu Qatada, in which 5 European Court of Human Rights judges are to decide next Wednesday 9 May whether an appeal by the preacher  will be heard in full by the court’s Grand Chamber. Whoever you think was right, Abu Qatada’s lawyers or Home Secretary Theresa May, this controversy has demonstrated that rules designed to provide certainty can have exactly the opposite effect in practice.

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Abu Qatada and the law of time – Carl Gardner

The BBC reported yesterday that there’s “doubt” about the deportation of Abu Qatada, following his arrest on Tuesday and now his appeal to the European Court of Human Rights – which the Home Secretary Theresa May says is out of time. So: is she right? Is the appeal out of time? How has the Home Office got into this apparent mess? And what if any difference does this appeal make?

The European Court’s judgment in Abu Qatada’s case was dated January 17th 2012. Of that there’s no doubt; and it’s irrelevant whether the government or anyone else was given notice of the judgment before, or received it later.

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Another control order ruled unlawful for breach of right to fair trial

AT v Secretary of State for the Home Department [2012] EWCA Civ 42 – Read Judgment

The Court of Appeal has upheld a challenge to a control order on the basis that the person subject to the order (‘the controllee’) had not been given sufficient information about the case against him.

How do you solve a problem like a suspected terrorist? For successive governments, the answer has proved to be far from straightforward, as the recent controversy surrounding radical cleric Abu Qatada has demonstrated.

The focus of this blog post is on yet another challenge to the imposition of a control order. Introduced by the Labour government in the Prevention of Terrorism Act 2005, a control order is a controversial tool used to restrict and monitor suspected terrorists. They have now been superseded by Terrorism Prevention and Investigation Measures (or “TPIMs”, described by some critics as “control orders lite”), which will in due course have their time in the legal spotlight. For now, there remain a small number of cases brought under the old control orders regime which are being determined. As this decision demonstrates, even their consignment to history has not shielded them from careful judicial scrutiny.

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Indefinite detention: not very British

Angus McCullough QC appeared for Abu Qatada as his Special Advocate in the domestic proceedings before SIAC, the Court of Appeal and the House of Lords. He is not the author of this post.

‘Human Rights Act to blame!’ is a frequent refrain in the media, as well reported on this blog.  Often, though, the outcome that has attracted media ire is not one that has much to do with the Human Rights Act at all. The decision to release Abu Qatada on bail is one such example.

The decision of the European Court of Human Rights that Abu Qatada cannot, for now, be deported to Jordan because of the risk of a trial using evidence obtained by torture has nothing to do with the Human Rights Act. Unless the UK were to withdraw entirely from the European Convention on Human Rights, that decision would always have been reached with or without our own Human Rights Act.

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No deportation for Abu Qatada, but where are we now on torture evidence? – Professor Adam Tomkins

OTHMAN (ABU QATADA) v. THE UNITED KINGDOM – 8139/09 [2012] ECHR 56 – Read judgment - updated (7/2/2012): Abu Qatada is expected to be released from Long Lartin maximum security jail within days. the special immigration appeals commission (Siac) ruled on Monday that Qatada should be freed, despite the Home Office saying he continued to pose a risk to national security.

Angus McCullough QC appeared for Abu Qatada as his Special Advocate in the domestic proceedings before SIAC, the Court of Appeal and the House of Lords. He is not the author of this post.

On 17 January 2012 the European Court of Human Rights (ECtHR) handed down its judgment in Othman (Abu Qatada) v UK. In a unanimous ruling the Court held that the UK could not lawfully deport Abu Qatada to his native Jordan, overturning the House of Lords (who had unanimously come to the opposite conclusion in RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10, [2010] 2 AC 110).

The House of Lords had themselves overruled the Court of Appeal; and the Court of Appeal had overruled the Special Immigration Appeals Commission (SIAC). Thus, the Court of Appeal and the ECtHR ruled in Abu Qatada’s favour; whereas SIAC and the House of Lords ruled against him. As all of this suggests, the matter of law at the heart of the case is not an easy one.

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Strasbourg: L’enfant terrible

A bit like news of a wayward celebrity, judgments from the European Court of Human Rights are now awaited with a mixture of trepidation and excitement. Whatever are those crazy unelected judges going to do next? Will this be the latest “Judgment day” for the enfant terrible of Strasbourg?

Yesterday the court released three judgments involving the United Kingdom. All three were about controversial issues: extradition, murder sentencing and terrorist deportation. The UK triumphed in the first two but failed in the third, although for surprising reasons. None of the judgments are “final”, in that the parties can still attempt an appeal to the court’s Grand Chamber if they wish. The rulings were:

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