The triple Olympic detainee
13 August 2012
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.
The wonderful thing about the Games for me, and about London generally, is the vision they provide of an international, multicultural, non-cynical community. And this vision applies not just between nations, but also within them. As many have pointed out, Mo Farrah – for me, the real hero of the Great British team – reached these shores as a Somalian refugee. I wonder if Daily Express readers will remember that the next time the paper stokes up anti-immigrant feeling.
Great openness, great danger
To bring this post back into line, with great openness comes great danger. Open borders and societies are vulnerable to terrorism, with an anarchic minority given the motivation (to destroy openness and tolerance) but also the means (exploitation of trust) to carry out atrocities.
Abu Qatada, also known as Omar Mahmoud Othman, has been described by SIAC as a “truly dangerous individual” for his links to terrorist group Al-Qaeda. He was granted asylum by the UK in 1994 and the authorities have probably regretted that decision ever since. We have covered his case extensively on this blog, including his partially successful application to the European Court of Human Rights, the ensuing row over time limits for appeal and his most recent bail application, which was refused by SIAC.
The refusal of bail by Mr Justice Mitting (Mitting J) was challenged by Judicial Review. The decision of the Administrative Court is uncontroversial but it does raise some interesting points about the jurisdiction of SIAC, a creature of statute created as a response to a 1996 decision of the European Court of Human Rights (Cahal v UK).
Prodigious litigation history
The Court began by neatly summarising Abu Qatada’s “prodigious” litigation history (see paras 3 to 8). In short, the UK Government have been trying to deport him for ten years, nine of which he has been detained either because he could not be deported or pending deportation. He has also spent some time under a control order.
A person can only be detained pending deportation if that detention is lawful under the well-known (to practitioners) Hardial Singh principles, which arise from a 1984 case of the same name. Those principles were recently explained by Lord Dyson in R (Lumba) v SSHD  UKSC 12;  1 AC 245 at para 22, and summarised by the Administrative court as follows:
The power to detain under Schedule 3 to the Immigration Act 1971 is a power to detain “pending” either the making of a deportation order or the person’s removal under such. It can therefore only be exercised in aid of proposed deportation and only to the extent reasonably necessary to achieve it. If it becomes apparent that the Secretary of State will not be able to deport within a reasonable time, the person should no longer be kept in detention. The Secretary of State must act with reasonable diligence to progress deportation. It is, however, not enough that he or she is doing his or her best to achieve it if it cannot be done within a reasonable period.
The Court began by examining the issue of SIAC’s jurisdiction even to consider whether the detention was lawful. Abu Qatada argued that it did not. The Court disagreed:
Any tribunal charged with considering bail is bound sometimes to have to ask, en route to its decision, whether the detention is still lawful or not… This is particularly so of the fact-sensitive Hardial Singh issue, where detention may be at one stage lawful and a little later cease to be so. That is quite unlike an issue as to whether there exists any power at all to detain. There is in a case like this no doubt about the existence of the power to detain; the question is whether in the precise circumstances it can or cannot properly be exercised
Just a bit longer
Then came a relatively brief discussion of whether Mitting J was right in his decision that the Hardial Singh principles were being met in this case. Abu Qatada argued that his detention was “simply too long for any further detention to be lawful“, that Mitting J had underestimated the imminence of his deportation (another key factor in the Hardial Singh balancing act). Finally, Mitting J had not properly addressed whether the Secretary of State was acting will due diligence to deport Abu Qatada.
The Court gave Abu Qatada’s arguments short shrift. The period of detention, whilst “enormously lengthy“, could not be said to be so long as to – in and of itself – justify release:
It has been attributable to the length of the litigation process, to which both sides have contributed, but also of the considerable importance of the issues. SIAC was, however, not only entitled, but obliged, to balance with the period of past detention all the fact specific considerations. That included the vital question of risk to the public (to which the special circumstances of the present demands on the security and police services made a contribution) and the critical one of whether the present detention was or was not properly in aid of deportation which was sufficiently in prospect. Its conclusion betrays no florid error of law; indeed no error of law of any kind.
On whether there was a prospect of removal within a reasonable time (another HS principle), Lord Justice Hughes did not agree with Abu Qatada’s Counsel’s “gloomy prognosis” that at least another year of litigation is to be expected following SIAC’s next decision, expected around November (para 22). Moreover, the demands of Article 6, which guarantees the right to a fair trial, are “now very clearly explained by the ECtHR decision“. The questions left by Strasbourg are essentially factual, that is whether there will be a breach of Article 6 in Abu Qatada’s trial once he returns to Jordan. Therefore, it is not an “inevitability” that the case will return to Strasbourg. We shall see.
As to the reasonable diligence point, this was not argued before SIAC so could not be challenged. In any event, there was “little or no evidence” to support it.
But a skirmish
This bail hearing was in fact only a skirmish in preparation for the main event. In October, SIAC will examine the argument by the Government that there are now sufficient assurances in place from Jordan to deport Abu Qatada and satisfy the European Court of Human Rights that Article 6 will not be breached in his ensuing trial.
It will be interesting to see what SIAC makes of the new assurances provided by Jordan (see this BBC summary). Strasbourg’s concern was that there was a real risk that evidence obtained by torture of third persons will be admitted at Abu Qatada’s retrial (see paras 263-285 of the Strasbourg decision). It remains to be seen whether the assurances obtained will be enough to satisfy SIAC, or the appeal courts.
In the meantime, Abu Qatada will probably not be watching the 2016 Rio Olympics from a UK prison, but given the twists and turns of this case, who knows. However unpleasant an individual he may be, it is right that the courts anxiously scrutinise the lawfulness of his eye-wateringly long detention without charge. And as to the link between open societies and terrorism, this can be stretched too far. Closed societies encounter terrorism too; it seems a sad reality that people will always find a reason to kill innocent people. In the UK, as the Olympic dust settles, the heated debate over the correct balance between security and freedoms will continue, whatever the national mood. As it must.
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