Abu Qatada: Preventing a flagrant denial of justice
13 November 2012
Othman (Abu Qatada) -v- Secretary of State for the Home Department (appeal allowed)  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. The flagrant unfairness lay in the real risk that the statements of two of Abu Qatada’s original co-accused, Abu Hawsher and Al-Hamasher, would be admissible at the retrial. The real possibility that their statements were extracted through torture was accepted by the parties before SIAC. Thus Article 6 ECHR – the right to a fair trial – prevented deportation.
A Long History
Detention and legal challenges
Abu Qatada, or Omar Othman, was first detained without charge in October 2002. He has since spent some seven years in detention. Previous posts (listed yesterday by Rosalind English) have examined each stage in the long procedural history of the case.
For present purposes, we begin at 18 February 2009 when the House of Lords ruled in Othman v. SSHD  2 AC 110 that there would be no breach of Qatada’s human rights if he were deported to Jordan. On the same day, the Home Secretary served him with a deportation order that was not enforced pending the final determination of Qatada’s application to the European Court of Human Rights.
The European Court Proceedings
In Othman (Abu Qatada) v. the United Kingdom, Application No. 8139/09 , the Strasbourg Court held unanimously that in light of a bilateral Memorandum of Understanding signed in 2005, Qatada’s deportation would not breach his rights under Articles 3 (prohibition of inhuman and degrading treatment/torture) or 5 ECHR (right to liberty). That paper guarantee was buttressed by various practical considerations.
However, the European Court held at paragraphs 258-260 that:
an issue might exceptionally be raised under Article 6 by an expulsion or extradition decision in circumstances where the fugitive had suffered or risked suffering a flagrant denial of justice in the requesting country.
This required a breach “so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that article.”
A high bar, but one the European Court in May 2012 deemed to have been met in Qatada’s case given the “real risk” that statements extracted through torture would be admitted as evidence against the cleric.
The SIAC proceedings
In the mistaken belief the European Court’s decision had become final the day before, the Home Secretary notified Abu Qatada on 17 April 2012 of her decision to deport him. On 20 April, Abu Qatada requested revocation of the deportation order and this was refused on 18 May. Abu Qatada appealed, and given the nature of the material that lay behind the deportation order, his appeal was directed to SIAC.
The Chair, Mr Justice Mitting, noted that both parties had accepted that the Strasbourg Court’s test should be applied. The Home Secretary had made clear in her decision letter that she “does not seek to bypass the decision of the ECHR”:
17. […] The tenor of the decision letter is that in light of developments occurring and further information gathered since the decision of the Strasbourg Court, its conclusion that the deportation of the appellant would be in violation of Article 6 is no longer valid. In his opening skeleton argument, Mr. Tam QC for the Secretary of State, stated that the decision letter was expressly drafted on the basis of the judgment of the Strasbourg Court and by reference to the test laid down in it. In consequence, the Secretary of the State accepts that if we were to find that the test identified by the Strasbourg Court has not been satisfied, we could or should allow the appellant’s appeal […].
In the present context, the test required SIAC to examine:
i) The risk that the appellant will be retried for two offences of conspiracy to cause explosions.
ii) The “risk” that statements made by Abu Hawsher and Al-Hamasher to the public prosecutor which implicate him were obtained by torture.
iii) The risk that those statements will be admitted against him at his retrial(s).
The appeal proceeded on the footing that the first and second limbs were satisfied. In its assessment for the purposes of the third limb, SIAC looked (at paragraph 22 onwards) at “a non-exhaustive list” of factors, namely:
i. The history of the two trials at which the appellant was convicted.
ii. Relevant provisions of the Jordanian constitution and criminal procedures law.
iii. Jordanian case law, in particular that of the Court of Cassation.
iv. The attitude of the Jordanian authorities to the appellant’s return and prospective retrial.
v. The nature and composition of the court which will retry him and, insofar as it can be ascertained, the attitude of its judges.
By the time SIAC had examined factors i., iv. and v., it seemed that the work done behind the scenes by the UK and Jordanian Governments in paving the way for Qatada’s deportation might have paid off. In her statement to Parliament today, the Home Secretary quoted from paragraph 49 of the judgment but stopped after the first sentence, which is significantly counter-balanced by what follows. That is where SIAC’s tide began to shift against the Government:
49. If the only question which we had to answer was whether or not, in a general sense, the appellant would be subjected to a flagrantly unfair retrial in Jordan, our unhesitating answer would be that he would not. That answer is not, however, sufficient to dispose of the principal ground of appeal under Article 6. Although criticisms of the State Security Court formed a significant part of the reasoning of the Strasbourg Court, the determinative question for it and for us is whether or not there is, under Jordanian law, a real risk that the impugned statements of Abu Hawsher and Al-Hamasher would be admitted as probative of the appellant’s guilt at his retrial. To answer that question it is necessary to analyse Jordanian law and to attempt to forecast how it would be applied by the three civilian judges in the State Security Court. [emphasis added]
This meant an analysis of Article 148.2 of the Code of Criminal Procedure, which deals with statements by defendants against other defendants. SIAC had to answer two questions, set out at paragraph 54:
i) Irrespective of the means by which they were obtained, are the impugned statements now admissible at all under Article 148.2 of the Code of Criminal Practice?
ii) If they are, is there a real risk that they will be admitted even though there is a “real risk” that they have been obtained by torture?
The issue in relation to the first question was that Abu Hawsher and Al-Hamasher no longer faced criminal charges. Having read and heard the detailed evidence of experts in Jordanian law and procedure, SIAC was ultimately not satisfied as to whether or not their statements could still be admitted probatively in those circumstances. Jordanian law was unclear.
On the second question, SIAC was similarly not satisfied that a 2011 amendment to Article 8 of the Jordanian Constitution reversed the position whereby “[i]n common law language, the burden of proving that a statement made to a public prosecutor was obtained by duress or worse is on the maker of the statement and has, historically, been difficult to discharge.”
SIAC concluded [at paragraph 78]:
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 statements were not procured by torture, the real risk will remain.
The press has responded vociferously. The Daily Mail reports on Conservative “calls for the Government to rip up human rights law.” The Sun has set up a campaign overnight: “Let’s Try Harder to Kick Out Qatada.” It prints a photograph of a perhaps understandably (and only mildy) contented-looking litigant: “Laughing at us… vile Abu Qatada.”
All three main political parties have criticised SIAC’s judgment in strong terms. The Prime Minister has said
I am completely fed up with the fact this man is still at large in our country, he has no right to be there, we believe he’s a threat to our country. We have moved heaven and earth to try and comply with every single dot and comma of every single convention to get him out of this country.
In the Home Secretary’s statement to Parliament, she rehearsed the arguments that had failed before SIAC an announced that she would be seeking leave to appeal. She also attacked the European Court’s approach to Article 6 as “unprecedented.”
Yet, unlike in common law systems, there is no strict doctrine of precedent at the European Court level, although decisions are in practice guided by the “established case law” of the Court. Secondly, the Court did in fact support its approach in the Abu Qatada case by reference to its jurisprudence on both Article 3 (Saadi v. Italy  49 EHRR 30) and Article 6 (Gafgen v. Germany  52 EHRR 1 and El-Haski v. Belgium App No. 649/08, 25th September 2012). It also pointed to international consensus. Britain’s identification with that consensus can perhaps be seen in Lord Justice Neuberger’s dissenting judgment in the Court of Appeal in A (No. 2):
… even by adopting the fruits of torture, a democratic State is weakening its case against terrorists, by adopting their methods, thereby losing the moral high ground an open democratic society enjoys.
Further, despite the Home Office insisting SIAC applied “wrong test”, its legal team agreed that the Strasbourg case set out the test that should be followed. If SIAC concluded, as it did, that there was a real risk of the statements of Qatada’s co-defendant’s being admitted, it would have no option but to find that she had exercised her discretion unlawfully. What it seems the Government is really attacking is not the Strasbourg decision or the test applied by both it and SIAC, but SIAC’s conclusion that Qatada’s deportation failed the test, a question of fact which ordinarily would not be amenable to appeal.
Yet in the absence of the clear, basic guarantees that would have been required in order to meet the test, it is difficult to see how SIAC could come to any other conclusion without disregarding or undermining the right to a fair trial. In so doing, it would also arguably have undermined the absolute prohibition enshrined in Article 3.
SIAC’s decision has been hailed by Qatada’s solicitor, Gareth Peirce, as reaffirming “this country’s position that we abhor the use of torture”. As in many important human rights victories, the immediate beneficiary is not popular.
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