Tuesday 6 March 2012

Theresa May's trip to Jordan

Update: Abu Qatada talks moving in the right direction, says Theresa May - Guardian 7th March.

The Home Secretary - Rt. Hon. Theresa May MP - is in Jordan holding talks with a view to reaching a deal ("assurances") which the British government hope will enable them to see the back of Abu Qatada who is currently on bail with strict conditions - Channel 4 - 5th March.  The government has been seeking to deport him since August 2005.

Bail was imposed by Mitting J sitting at the Special Immigration Appeals Commission (SIAC) in February - see Othman v Secretary of State for the Home Department [2012] UKSIAC B1 6th February.   Mitting J's short judgment regarding bail is interesting in itself in that the so-called Hardial Singh* principles for deportation were applied and, in Mitting J's view, these are not materially different from the European Court of Human Rights view on what Article 5 (Right to liberty and security of person) requires.  On an application of the Hardial Singh test, Mitting J decided to grant bail rather than keep Abu Qatada in custody where he was for some 6 years.

It was in Othman (Abu Qatada) v United Kingdom [2012] ECHR 56 (17th January) that the Fourth Section of the European Court of Human Rights (ECtHR) held that
assurances offered by Jordan were adequate to protect him personally from torture and so Article 3 (Prohibition on torture etc) would not be breached.  (Jordan had also agreed not to impose a death penalty).  However, the ECtHR also held that Article 6 (Right to a fair trial) would be breached since the court concluded that there was a real risk of the admission of evidence at the applicant’s retrial of evidence which had been obtained by torture of third persons.  There was a high probability that incriminating past statements made to Jordan's Public Prosecutor by those  third persons would be admitted at a retrial and these would be of considerable, perhaps decisive, importance against him.

It is difficult to see how any "assurance" can cure this defect unless Jordan either did not try Abu Qatada at all (highly unlikely given the history) or was somehow able to make the case against him without using those third party statements which the ECtHR considered to be of considerable, perhaps crucial, importance. 

Interestingly, in 2011, Jordan took steps to amend its constitution including a prohibition on the use of torture.  These developments are welcome.  However, the fact remains the torture of detainees was historically widespread in Jordan - see Human Rights Watch and also the links to reports of the UN Special Rapporteur which may be accessed via Jordan's entry in Atlas of Torture.

Returning to Abu Qatada's bail, Mitting J ended by saying that if by the end of a 3 month period, "the Secretary of State is not able to put before me evidence of demonstrable progress in negotiating satisfactory assurances with the Government of Jordan, which satisfy the reservations of the Fourth Section, then it is very likely that I would conclude that continued deprivation of liberty would no longer be justifiable."

It is possible for the UK to get the Fourth Section's Abu Qatada decision on the Article 6 point referred to the ECtHR's Grand Chamber provided application is made within 3 months of the Fourth Section's decision.

* R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 Woolf J (as he then was) - and see Lumba v Secretary of State for the Home Department [2011] UKSC 23.


  1. It is ironic that in the post colonial era we are so anxious to rule in such an arrogant fashion on the Jordanian legal system. Offending an ally in the Middle East at a time of tension (and it is always a time of tension there) seems the height of folly. Qatada never had any legal right to be here and we are entitled to wonder why millions of state pounds has been spent on this exercise in respect of one individual's right to a fair trial, when thousands are being slaughtered elsewhere in the Middle East without any meaningful response from ourselves.

    We had a go at solving half the world's problems. It was called the British Empire. We did a great job sometimes, a half decent one in others, and a disaster in some. That is all in the past and it is about time we concentrated on putting our own house in order and let the rest of the world worry about theirs.

  2. Amongst all the furore over Abu Qatada, it should be noted that he has never been charged with any offence in the UK.

    Despite concerned politicians (Andrew Dismore in particular in the house back in October 2001) raising may questions about his close association with the al-Muhajiroun organisation, and his involvement with the recruiting & training of angry young Muslims (at the Four Feathers club) for missions to Kashmir, Chechnya & Kosovo etc., which laid the foundations for the War on Terror.

    Qatada appears a bit of an untouchable, by all accounts.....

  3. European Convention on Human Rights and Fundamental Freedoms

    Article 1 of the Convention states: The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.

    Thus, like it or not, Abu Qatada is entitled to have his Convention rights respected. He was actually permitted to be here by the Labour government which gave him leave to remain in 1998 However, he was arrested in October 2002 and an application for permanent leave to remain (which had been filed in May 1998) was not determined. (See paras. 7 and 8 of the Othman decision for full details). In fact, even an illegal immigrant is entitled to Convention rights since they have to be secured for everyone in the jurisdiction.

  4. AQ has not been charged with any offence in the UK. This matter is discussed at:

    Abu Qatada: no justice, no security

    and at

    Why is Abu Qatada not on trial?

    It appears that the government has, since 2005, been more determined to deport him. Notice of intention to deport was first issued in 2005.

  5. Despite Qatada never having been charged with any offence in the UK, an association with him seems to have been sufficient to detain many others under Control Orders, again without charge, and determined largely by 'evidence' within 'closed material'.

    In February 2007 the High Court observed that a Belgian Court noted that Abu Qatada "appears as a watermark running through the whole of this ['Appellant E'] case as being the mastermind, if not the commandant, of the movements propounding jihad in the West"

    Also worth noting the statement in the SIAC hearing (involving 'Appellant E') of October 2003:

    'It is common knowledge that it has been averred that Abu Qatada is himself a terrorist....' yet no (subsequent) charges or prosecutions have ever ensued to this day.....

    The ultimate sentence in the Guardian 'Why is Abu Qatada not on trial?' (linked above) article asks:

    So what has MI5 or the police got to hide from a trial?

    Many a commentor on that same Guardian article posits an explanation along the lines of:

    'If they knew exactly what he was up to and effectively gave him a green light to continue how can he be prosecuted?'

    Pseudo Justice inaction.

  6. If the law is an ass, change the law. Let us put your response in a different historical example. A B and B says "no blacks or Irish". "The restaurant is entitled to have its rights respected". The immigration laws should never have let this man in the country to start with, still less let him stay.

  7. Immigration law is written in a way which gives the SECRETARY of STATE discretion as to who is granted leave to remain. Please note the Othman judgment para 7 where it said - "The applicant was recognised as a refugee on 30 June 1994 and granted leave to remain until 30 June 1998. As is the normal practice, the Secretary of State did not give reasons for his decision for recognising the applicant as a refugee."

    Personally, I dislike this practice of not giving reasons but there it is.

    On the separate question of why has AQ never ben charged in the Uk, it was interesting to read in The Times (Thursday 8th March) the article by Frances Gibb. The article is essentially about the Independent Reviewer of Terrorism Legislation - Mr David Anderson QC. In the article it is asserted that Abu Qatada is "an unpleasant man" and "no doubt he has done some dangerous things in the past. But he has not broken the criminal law of this country and no one else in the world wants to put him on trial, and the only place that will take him is a place where he is likely to be tried on the basis of torture evidence; our options are limited."

    I don't know whether it is correct to assert that AQ has not broken the criminal law of this country but those who argue that he could or should be put on trial in the UK have to be specific about what is alleged against him.

  8. There are two respects here in which the law is flawed, and should be changed. The first is the immigration laws, which were memorably described as not fit for purpose. The asylum system is bonkers - allow in people but then refuse to allow them to work; years taken over determining claims, endless bites of the cherry on human rights grounds etc etc. Again, if the law is wrong, change it. As you yourself say at the very least we should be told what on earth the S/S was up to allowing this man here to begin with. Just because he hasn't broken the criminal law should not then oblige the country to keep him here at vast cost to the security apparatus and benefit system. If the authorities form the clear view that a non-British citizen is a danger to society then any claim that person might have had on our goodwill when asking for refugee status should be revoked. We cannot solve all the world's problems and we are entitled to be selective when offering protection. I am sure there are genuine refugees who would anxiously observe our laws and become blameless good citizens, but who we can't offer space to because we are indulging AQ. If he was a British citizen we would be stuck with him, good or bad, but he is not.

    Secondly, as I said, it is the height of folly to disparage a friendly state by telling them that no matter what assurances they give, their legal system isn't up to scratch so we will keep all their criminals roaming free in our country.

    Falling back on "that's what the law says so that's ok" is the reason why it is not simply tabloid editors who become exasperated by laws and lawyers. Of course the law should be applied. But if it leads to idiotic results, change it. Instead of quoting back the ECHR when AQ and the like win their cases, lawyers should be shouting from the rooftops - "look, we've applied the law because, rightly, we had no choice. But the law is in tatters and it needs to be changed post haste by Parliament, now. And if that means treading on some European toes then so be it."

    Britain is a small country, overcrowded, with a decaying and aged infrastructure, a vastly diminished influence on the rest of the world since the days of Empire, and is technically insolvent, printing money by way of QE and borrowing a mixture of funny money from Europe and real money from China. It is also reliant on cheap oil from the Middle East, a dangerous place at the best of times, where there is at least one civil war in progress and a load of nuclear sabre rattling. In those circumstances it surely behoves the British government to act in the interests of its own citizens - deporting non-citizens who break the law or are adjudged a threat, and forging better relations with the more stable parts of the Middle East instead of meddling in their affairs or snubbing them arrogantly.

    With all due respect, lawyers who live in the happy abstract world of human rights tutorials aren't troubled by any such real world concerns.