According to The Sun – Human Rights judges will be put in the dock today by David Cameron – for presiding over a ‘small claims court’ for ‘terrorists and chancers’. The PM will ‘let rip’ in a speech to the Council of Europe days after Britain was barred from deporting ‘hate preacher’ Abu Qatada – and will pull ‘no punches’ at the gathering of politicians from 47 countries — insisting the UK needs ‘no lectures on human rights from unelected Euro judges’.
The Sun says Cameron will remind them this is the country that produced the Magna Carta and (with wearying inevitability) ‘defeated Hitler’. Russia’s contribution will doubtless be glossed over.
On 17th January the European Court of Human Rights (ECtHR) handed down its judgment in Othman (Abu Qatada) v UK. In a unanimous ruling the court held that the UK could not lawfully deport Abu Qatada to his native Jordan, overturning the House of Lords (who had unanimously come to the opposite conclusion in RB (Algeria) v Secretary of State for the Home Department  UKHL 10,  2 AC 110).
Abu Qatada, has been convicted twice in Jordan, both times in his absence, for various serious terrorist offences. He alleges that part of the evidence against him had been obtained under torture. The use of torture is widespread in Jordan so too is the use of torture evidence by its courts – the United Nations Special Rapporteur has described a system where the ‘presumption of innocence is illusory’ and ‘primacy is placed on obtaining confessions’.
The Jordanian authorities had given assurances – through a memorandum of understanding, essentially an agreement negotiated between the UK and countries such as Jordan who routinely practice torture – that Abu Qatada himself would not be tortured. This satisfied the various courts that at least his article 3 rights would not be breached. However they could not give the self same assurances around the risk of evidence obtained by torture being used in any criminal trial of him – this was deemed to be a ‘flagrant denial of justice’.
The issue is this: under what circumstances are states such as the UK, which are bound by the European Convention on Human Rights (ECHR), not allowed to deport someone to a country not bound by the ECHR (such as Jordan) and where the individual concerned will face a trial that would fall short of the standards set by Article 6 (the right to a fair trial)?
The House of Lords in RB (Algeria) had ruled torture in another country does not require the UK ‘to retain in this country to the detriment of national security a terrorist suspect…’. In other words it was not the UK’s problem.
However the ECtHR – agreeing with the earlier decision in this case of the Court of Appeal – ruled that a ‘flagrant denial of justice’ in terms of Article 6 occurred where a breach was so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article. The test was the same as for Article 3 expulsion cases (Chahal v UK).
The European Court said it was for the individual concerned to show evidence supporting a belief that – if removed from a contracting State – they would be exposed to a real risk of being subject to a flagrant denial of justice – such as in this case where the use of evidence at trial was obtained through torture. Where the individual was able to show such evidence, it was then for the Government to dispel any doubts about it – something they had singularly failed to do in this case.
The ECtHR also made the general point, succinctly and powerfully, that the prohibition of torture is a vital aspect of maintaining the rule of law:
‘The trial process is a cornerstone of the rule of law. Torture evidence damages irreparably that process; it substitutes force for the rule of law and taints the reputation of any court that admits it. Torture evidence is excluded to protect the integrity of the trial process and, ultimately, the rule of law itself.’
Home Secretary Theresa May vowed it was ‘not the end of the road’ and that ‘rent a reactionary quote’ merchant David Blunkett – popped up on BBC Radio 4’s The World At One to say he hoped ‘it would be possible to reach an agreement with the Jordanian government that they would bring forward alternative evidence to that obtained originally, allegedly, by torture.’ The fact that it was the opinion of the UK Foreign Office in 2001 that deporting people to Jordan would breach Article 3 (prohibition on torture) seems to have passed him by – worryingly – given he was Home Secretary at the time.
Whilst this seems like a defeat for the government – they are not able to deport someone they believe to be a threat – there are concerns as Amnesty International warn over ‘the court’s conclusion that diplomatic assurances can, under certain circumstances, be sufficient to reduce the risk of torture’ – and it remains the case currently that other deportees who would not be put on trial will be able to be deported simply with an assurance from their country of origin that they will not be tortured.
The UK now has three months to decide whether to appeal and refer this judgment to the Grand Chamber.
Matt Evans is the Director of the AIRE Centre, a specialist charity whose mission is to promote awareness of European law rights and assist marginalised individuals and those in vulnerable circumstances to assert those rights. Previously he was the Managing Solicitor at the Prisoners Advice Service for 6 years and worked at a number of leading legal aid firms including TV Edwards, Hickman and Rose and Hodge Jones and Allen.