Law and Rights
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.
- Abu Qatada May Leave Uk Voluntarily If .....
The long running Abu Qatada deportation issue may be drawing to an end. Over around 8 years, the government has spent enormous amounts of public money on the various legal challenges to his deportation to Jordan. (See Jack of Kent Resource...
- Abu Qatada ~ New Treaty With Jordan ~ But Will It Result In His Deportation?
Earlier this week, the Court of Appeal refused the government permission to appeal against a decision of the Special Immigration Appeals Commission in the Abu Qatada case - BBC News 23rd April. The government will be asking the Supreme Court to...
- Mohammed Othman (abu Qatada)
Update 4th December: The Government is to appeal the decision of SIAC. As predicted (below), the Home Secretary is not yet prepared to give up the chase! The Guardian 3rd December. --- The most recent round of litigation concerning Mohammed...
- Pesky Time-limits And Abu Qatada
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- A Trio Of European Court Of Human Rights Decisions
Today, 17th January, the European Court of Human Rights (ECtHR) was scheduled to deliver some 35 judgments. The reader will perhaps be particularly interested in the following three judgments which are all judgments of Section IV of the Court sitting...
Law and Rights
Theresa May's trip to Jordan
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.
- Abu Qatada May Leave Uk Voluntarily If .....
The long running Abu Qatada deportation issue may be drawing to an end. Over around 8 years, the government has spent enormous amounts of public money on the various legal challenges to his deportation to Jordan. (See Jack of Kent Resource...
- Abu Qatada ~ New Treaty With Jordan ~ But Will It Result In His Deportation?
Earlier this week, the Court of Appeal refused the government permission to appeal against a decision of the Special Immigration Appeals Commission in the Abu Qatada case - BBC News 23rd April. The government will be asking the Supreme Court to...
- Mohammed Othman (abu Qatada)
Update 4th December: The Government is to appeal the decision of SIAC. As predicted (below), the Home Secretary is not yet prepared to give up the chase! The Guardian 3rd December. --- The most recent round of litigation concerning Mohammed...
- Pesky Time-limits And Abu Qatada
Updates 20th April In all litigation, lawyers need to pay particular attention to time-limits. They exist for good reason since without them there might be no finality. This truism has arisen in the Abu Qatada case. He has never been charged...
- A Trio Of European Court Of Human Rights Decisions
Today, 17th January, the European Court of Human Rights (ECtHR) was scheduled to deliver some 35 judgments. The reader will perhaps be particularly interested in the following three judgments which are all judgments of Section IV of the Court sitting...