There are three cases, among the many decided by the Court in the past few weeks, which I would like to highlight. They deal with testimony potentially obtained through torture, forced labour and extraordinary rendition respectively.
The first is the case of El Haski v. Belgium (available only in French). It deals with a terrorist suspect against whom evidence obtained in Morocco during legal proceedings there (following the 2003 Casablanca bombings) was used in court in Belgium. It was unclear whether such evidence was in fact obtained by means of torture. The Court held that it was sufficient for exclusion of such evidence from trial in an ECHR state party if a suspect could show that there was a “real risk” that such evidence had been obtained by treatment contrary to Article 3. The case builds on the recent Othman (Abu Qatada) v. the United Kingdom judgment, from January of this year. In this case, such a real risk existed. The refusal by Belgian courts to exclude the evidence thus led to a violation of the right to a fair trial (Article 6 ECHR).
Abu Hamza’s extradition has been put on hold whilst this Judicial Review claim is being dealt with this coming Tuesday [update – I understand that another issue is being dealt with on Tuesday, and that the passport point is not the one which has held up the extradition]. I think this may be a ‘permission hearing’ (the first hurdle a JR claim has to surmount) although it may well be a ‘rolled up’ hearing, which means the permission and substantive aspects will be dealt with all at once. A few points to note (nb. this is my quick summary, and is only of course of one side of the case – Abu Hamza’s):
This particular claim is very limited. He applied for and was granted a passport on 11 November 2011 and although this was sent on 20 November 2011 to Belmarsh Prison, where he was located, the passport has not yet been given to him. He has also requested photocopies, to no avail.
He claims that the failure to provide him with his passport or copies of it is contrary to Home Office Guidance Note 20, as well as potentially Article 8 of the European Convention on Human Rights (the right to private and family life) and the EU Citizen’s Directive 2004/38/EC. For what it’s worth, this is fundamentally a legality challenge under ordinary public law principles – the human rights aspect of it is likely to be in the background. So although it would technically be correct to say he is challenging this decision on human rights grounds, that aspect is only likely to play a small part in the claim.
The European Court of Human Rights has refused the request of Mustafa Kamal Mustafa (Abu Hamza) and four others to refer their extradition appeal to its Grand Chamber for another hearing. This means that their case, which was decided in the Government’s favour in April (see our post) is now final. There are therefore no remaining barriers to their extradition to the United States to face terrorism charges.
But why has it taken so long to decide the case? The men argued that if extradited there was a real risk that their article 3 (torture and inhumane treatment) rights would be contravened by being held at a ‘Super-max’ prison and by having to face extremely long sentences. The extradition requests were made by the United States in July 1999 (Adel Bary), May 2004 (Abu Hamza) March 2005 (Barbar Ahmad), August 2005 (Haroon Rashid Aswat) and September 2006 (Syed Tahla Ahsan). In other words, a long time ago.
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.
Harrow Community Support Ltd v. Secretary of State for Defence  EWHC 1921 (Admin), Haddon-Cave J, 10 July 2012, read judgment
In 776BC, the Olympics consisted of one day’s running and wrestling. A hundred years later, chariots and single horses arrived, thanks to the influence of Phaidon of Argos (a big shot in seventh-century Greece), and I dare say the civic pride which each participating Greek city-state brought to the Games was already running high. But I don’t suppose either Phaidon or Baron de Coubertin would have predicted the move which triggered this piece of litigation. The MoD decided to site a missile launcher and military personnel on the roof of a Council tower block in Leytonstone during the Olympics. Like all military hardware, it has a nice acronym, GBAD, being a Ground Based Air Defence system.
Anyway, a residents’ association formed by residents of Fred Wigg Tower, 15 storeys and containing 117 flats, decided to challenge the MoD. As their petition put it, “We, the undersigned residents of FWT, Montague Road, Leytonstone E11 3 EP, do not want explosive missile systems placed on the roof of our home”. Nor, I suppose, do any of us, but some of us may want someone else to have missile launchers on their roofs.
Omar & Ors, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs  EWHC 1737 (Admin) (26 June 2012) – read judgment
The Divisional Court has ruled that common law principles cannot be used to obtain evidence from the Foreign Secretary for use in a foreign court.
Angus McCullough QC of 1 Crown Office Row appeared as a special advocate in the closed proceedings in this case. He is not the author of this post.
“Norwich Pharmacal” orders are sometimes granted to obtain information from third parties to help the court establish whether unlawful conduct has taken place. A court can in such a case compel the third party to assist the person suffering damage by giving them that information. In the cases of Binyan Mohamad and Shakar Aamer the courts extended the application of these orders to foreign cases. Now it appears that both may have been wrongly decided.
The report puts the case for continuing the process already begun by the Coalition Government of rolling back some of the laws instituted in the decade following 9/11 to address the threat of terrorism. The justification for this is that the threat has reduced in size. Notably, he argues that it may be possible to grant certain terrorist suspects (“the peripheral players”) bail when arrested. David Anderson QC said of his report:
The threat from both al-Qaida related and Northern Ireland related terrorism is a real one. To meet it, we have some of the most extensive and effective counter-terrorism laws in the world. All the more need to keep them under review so that they impinge no further than is necessary on individual liberty.
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 →
Angus McCullough QC and Jeremy Johnson QC, Special Advocates at the JCHR
It appears that the Government has climbed down, in part, from some of its controversial secret justice proposals. According to the Telegraph, the Justice and Security Bill, which will be published this week, will include a provision whereby judges, not the Government, has the final say on whether a Closed Material Procedure (CMP) is used. Moreover, CMPs will be restricted to “national security cases” rather than any case “in the public interest”.
It “remains uncertain”, however, “whether Mr Clarke will exclude inquests from being subject to the secret hearings.” Junior Justice Minister Jonathan Djanogly caused a stir last week when he appeared prematurely to announce that particular concession in Parliament, but quickly stepped back from his statement. In view of the likely legislative bartering which will occur as the bill progresses through Parliament, perhaps this is a concession which was meant to be left until later in the process.
We will analyse the bill when it is published later this week. But as this important debate resurfaces and the manoeuvring continues, it is important to keep two things in mind.
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.
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?
Today was one of striking parallels between the USA and the UK in terms of litigation concerned with access to information.
APPGER and security bodies
First, one of The Independent‘s main stories this morning concerned a case brought in the US by the UK’s All Party Parliamentary Group on Extraordinary Rendition (APPGER). Readers will recall that in the UK, APPGER was partially successful before the Upper Tribunal last year; the decision of the First-Tier Tribunal in a second case (the hearing of which concluded in February 2012) is awaited.
Waking up in New York this morning, I find the newspapers are much exercised by the recent decision of the Strasbourg Court to allow the extradition of certain terror suspects to the US, as discussed in Isabel McArdle’s post. The colourful New York Post declares unambiguously that “Thugs face Extradition” (April 11), following its banner headline of yesterday “UK can extradite hook-handed clerk, 4 other terrorists to US”. And just in case any passing reader failed to get the point, the strapline says
Britain can extradite a one-eyed, hook-handed radical Muslim cleric and four other suspects to the United States to face terrorism charges, Europe’s human rights court ruled today.
Giving rather more detail by way of background, today’s edition of The New York Times explains that Britain
has struggled to balance civil liberties and domestic security in the face of entrenched Islamic extremism and repeated terrorist attacks, and has sought to deport some of the dozens of subjects it has detained in scores of possible plots over a decade
According to the NY Times, the director of the national prison project for the American Civil Liberties Union found the ruling “disappointing”, and showed that the Strasbourg Court seemed willing to accept “dubious” assurances from the United States. Continue reading →
The European Court of Human Rights (Fourth Section), sitting as a Chamber, has found that five men accused of serious terrorist activities can be extradited from the UK to the US to face trial.
They had argued that their article 3 rights (article 3 prohibits torture, inhuman and degrading treatment) would be violated if they were extradited and convicted. A sixth man’s case has been adjourned pending further submissions from the parties to the proceedings.
Ahmad’s case cuts across a number of different rights controversies. The BBC challenged the Ministry of Justice’s initial refusal to allow an interview with the terrorist suspect, who is currently held at a maximum security jail, and won – see our post. Ahmad is also currently the longest serving prisoner who has not been charged with a criminal offence; he has been detained for nearly 8 years.
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.