Abu Qatada wins appeal against deportation

12 November 2012 by

Mohammed Othman (Abu Qatada) v Secretary of State for the Home Department (Special Immigration Appeals Commission) 12 November 2012 – read judgment

Muslim cleric Abu Qatada has won his appeal against deportation to Jordan, where Mitting J concluded that he would not receive a fair trial.

Qatada was convicted of terror charges in Jordan in his absence in 1999 but so far he has successfully resisted being sent back there because of the risk of an unfair trial, despite the assurances given by Jordan to the Home Secretary assurances that no evidence gained through torture would be used against him. As Mitting J said, once it has been established that there is a “substantial” risk that a person will not receive a fair trial in the destination state,  the government must demonstrate that there is no risk that person will receive a “flagrantly unfair” trial. This is a lower test than demonstrating that no risk at all existed.  But on the basis of SIAC’s findings, Mitting J found that there was in fact a real risk that evidence obtained by torture of two men had been obtained by torture.

A quick scan of the list of “Related Posts” below reveals the prolonged history of this case. Enough already? Apparently not. 

The following is based on SIAC’s summary of the judgment:

SIAC 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?

The first question was not to be conclusively answered.

Until and unless the [Jordanian] court of Cassation gives us an authoritative ruling on the question, it must remain open.

The second question was considered in detail in paragraphs 68-73. SIAC concluded

…The only means of eliminating a real risk that statements which may well have been obtained by torture will be admitted probatively at the appellant’s retrial would be for the burden of proving, to a high standard, that they were not, to be placed upon the prosecutor. Anything else gives rise to a real risk that they will be [para 73]

On the Article 3 question, SIAC remained satisfied that the assurances given by the Jordanian government provide, in their practical application, a sufficient guarantee that the appellant will be protected against the risk of ill-treatment by the Jordanian state.

The government has confirmed that it will appeal.

Related posts

3 comments


  1. Jabulani Maphosa LLB (HON) LAW. Human Rights Activist says:

    The Court has reached a reasoned out decision sitting as a neutral ‘artbiter of the law’. David Cameroon could be acting in contempt of court by criticising the court decision. Judges are not fudges who just sit and make stupid and baseless decisions. They are learned experts in their field just like medical Doctors and nurses. Every decision has a ‘ratio decidendi’, the reason for the decision.

    The judiciary is the ultimate defender of human rights. Abu Qatada is presumed innocent until proven guilty. Therefore, an innocent man has been deprived of his liberty for 10 years in a first world country and everybody sees nothing wrong with that, no wonder Belmarsh prison is UK’s Guantanamo prison. If he has a case to answer, he is British, therefore put him on trial in the UK. If he is not a UK citizen but a refugee, he is entitled to state protection under the 1951 Geneva Convention. Therefore, we cannot send a refugee to face torture in a country he escaped from to seek asylum in this country, otherwise we might as well send back all Zimbabweans who fled from Mugabe to face torture in Zimbabwe. Mandela was a terrorist who attempted to blow up trains in apartheid South Africa. If he had escaped to seek asylum in the UK, we would not have sent him back to face trial in S.A because of the so-called MOU between the UK government and President Deklek. Freedom from torture (Art 3 ECHR) is an absolute right which the UK government cannot derogate from,Teressa May should appreciate the doctrine of seperation of powers and respect the rule of law. The MOU she is trying to rely on has no jus cogens/ cohersive power in international law. Therefore if the UK would send a suspect with a risk they would face an unfair trial (in breach of Art 6 ECHR) or face torture on return, the UK government would be in breach of its obligations under international law such as the non-refoulement treaty

    The doctrine of Parliamentary Supremacy is flawed when it comes to human rights protection. The accused individual faces the mighty power of the state with its majoritarianism which always threatens to legislate away the rights of those who find themselves in the minority. No wonder Lord Hailsham described Parliament as ‘elective dictatorship’ and MPs like David Davis always find themselves arguing in the minority in defence of human rights.

    ‘Human Rights is essentially a claim by an individual against the majority’. The Accused, who is presumed innocent until proven guilty finds himself terrified and powerless against the might of the state and the overwhelming irrational clamour of the public baying for his blood. No one stops to think, what is he accused of?. Has he been charged of any crime in this country? Why is he not put on trial in the UK?.

  2. Brendan Greally says:

    on this earth may he never rest! A disordered mind is its own hell…if you want to get rid of him and others like him…. follow the way of the birds….sqwark at them incessantly and do not let him sleep in your nest!

  3. Tim says:

    I have a lot of respect for Mr Justice Mitting and the two other senior judges; they are guided by what they think is fair and right not by what they are “supposed” to do nor the chihuahua-like yapping of the Daily Express.

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