Written by: Francis FitzGibbon QC
Abu Qatada, hard cases & bad law
The Special Immigration Appeals Commission (SIAC) ruled in Abu Qatada’s favour on one point only: if he is deported to Jordan, where he faces trial for terrorist offences, there is a ‘real risk’ that the Court will rely on evidence obtained by torture. It would be unlawful to deport him while this risk remains because Article 6 of the European Convention of Human Rights guarantees a right to a fair trial. British public authorities, including government ministries and Courts, are obliged to uphold his rights while he remains within British jurisdiction. By British and international legal standards, ‘there would be a flagrant denial of justice if evidence obtained by torture were admitted in a criminal trial’ [§10 of the judgment].
The effect of opting out of Article 6, if it were possible at all, would be that some people can have fair trials, but others can’t, with the selection made by ministers. SIAC’s judgment, by Mr Justice Mitting, is clearly written and worth reading in full in order to understand what has happened.
On all other points, Qatada lost. SIAC found that he is not at risk of torture or abusive treatment in Jordan and his detention there would be lawful, by international standards.
In particular, Mr Justice Mitting stressed that he accepted evidence that the Jordanian legal system has made great efforts to improve its procedure and give respect to human rights where it had flouted them in the past. He rejected criticism of evidence of the Jordanian Courts as unwilling or unable to give Qatada a fair trial: he said:
‘… the Jordanian judiciary, like their executive counterparts, are determined to ensure that the appellant will receive, and be seen to receive, a fair retrial.’
He roundly dismissed the idea that the undertakings given by the Jordanians not to torture or treat Qatada abusively were insincere and ineffective.
Narrow and technical
The issue on which the case went in his favour was narrow and technical: because of Jordanian criminal law and procedure, the Jordanian government could not guarantee that the court would declare the evidence obtained by torture inadmissible. SIAC were not persuaded that matters had progressed far enough since the Strasbourg Court upheld his appeal there, for exactly the same reason. The risk that such evidence would be used was real.
Whether the Jordanian authorities are willing to amend their domestic law in order to remove the ‘real risk’ of the use of evidence obtained under torture remains to be seen.
If many people in this country resent what is regarded as the interference of a foreign Court – the European Court of Human Rights – with our law, it is not hard to imagine that the prospect of amending Jordanian law to suit the UK – the former imperial power – would not go down at all well in Jordan.
But SIAC’s ruling leaves open the possibility that deportation can resume, without breaching Article 6, if the Jordanians find a way to ensure to SIAC’s satisfaction that Abu Qatada will not face torture evidence.
SIAC did no more and no less than all courts and tribunals are meant to: it rigorously assessed the evidence and made its own findings of fact; it identified the applicable legal principles and applied them to those facts, and reached a reasoned decision.
Meanwhile, the government says it will apply for permission to appeal SIAC’s ruling to the Court of Appeal. It can get permission by showing that SIAC may have got the law wrong – there is no appeal on questions of fact. SIAC itself refused permission, confident that it applied the law correctly. The critical point of law was the concept of a ‘real risk’ that Qatada would face torture evidence. ‘Real risk’ indicates a low standard of proof, common to cases in which asylum seekers claim that they face persecution if return to their own countries. There is a very good reason for applying a low standard: it may be impossible to show with any more certainty that activities like torture or severe physical ill treatment will occur, simply because the torturers work in the dark, are hard to expose, and will be protected by the authorities. More important still, it would be unconscionable to send some one back to a country where there was a real risk of torture.
Now there may be room for debate about whether the same standard should apply when I am at risk of actual torture, and when the risk is that I will be facing evidence obtained from the torture of some one else. It can coherently be argued that an otherwise fairly conducted trial which may include torture evidence is much less objectionable than being tortured, so that a more robust view can properly be taken. However, as the law stands, and certainly as the European Court and SIAC interpret it, the same standard applies.
It is worth remembering that in the UK, the courts have imposed an absolute bar on the use of torture evidence here. Why apply a different standard to another state? The evils of torture don’t vary much across the world.
British Courts have recognised that human rights protection must be given to anyone within our jurisdiction – not just British citizens. If that is thought to be objectionable, imagine the opposite: a less controversial figure than Qatada flees here, seeking protection from an oppressive foreign government – an Aung San Suu Kyi, or a Dalai Lama. Their country wants them back, to face criminal charges, with evidence obtained under torture. Now imagine we have changed the law in two ways since Abu Qatada – foreigners no longer have their human rights guaranteed, and we require proof beyond reasonable doubt that torture evidence will be used. They cannot prove it; their government plausibly denies it. Off they go, to an unfair, tainted trial and decades of imprisonment.
Qatada’s case should not be used as a reason to water down human rights protections. He may or may not be an evil man (never mind we can’t or won’t put him on trial: see Richard Norton-Taylor in the Guardian) – but let’s assume every bad thing said about him is true.
Hard cases make bad law. Change the law because of him, and it changes for every one else.