Analysis: A very difficult decision on Abu Qatada

Abu Qatada Abu Qatada has never been charged with a criminal offence in the UK

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On Monday the Special Immigration Appeals Commission (Siac), the court which deals with national security deportations, will deliver one of its most important judgements in recent years: can Abu Qatada be deported to Jordan?

It is a case where the need for national security rubs up against the UK's legal duties to protect the human rights of suspects.

So what brought us to this point - and what are the issues?

Eight years ago, a Siac judge ruled Omar Othman, to use his real name, was a "truly dangerous individual... at the centre in the United Kingdom of terrorist activities associated with Al Qa'ida".

Abu Qatada has never been charged with a criminal offence in the UK. That may strike people as odd - but the case against him is largely based on secret material gathered by MI5 which cannot be used in criminal trials. The government, instead, sought to deport the preacher.

Someone who is deemed dangerous to the UK does not need to be convicted of a crime to be deported. The Home Secretary Theresa May eventually convinced the courts that the preacher's presence was not conducive to the public good and judges said he could, in principle, be removed.

'Frantic talks'

But the question remained whether he could be deported to Jordan given its much criticised record on human rights.

The preacher had already been convicted in absentia in relation to two terror plots - and he would be retried for the same offences if returned.

His lawyers said he could be tortured. Secondly, the retrial would be unfair because the key evidence came from men who only pointed the finger at the cleric while Jordan's secret police were torturing them.

Abu Qatada legal Chronology

  • October 2002: Detained without charge
  • March 2005: Law Lords ban detention without charge, ordering release. Issued with control order - form of house arrest restricting movements
  • August 2005: Detained again, pending deportation
  • February 2007: Loses appeal at Siac
  • April 2008: Court of Appeal says deportation to regime that tortures would breach human rights
  • June 2008: Bailed - but then detained five months later on new evidence of risk
  • February 2009: Law Lords back deportation, saying the Court of Appeal got it wrong
  • January 2012: European Court overturns that decision, saying Jordan will not provide a fair trial

The government solved the first problem by convincing judges, including the European Court of Human Rights, that a Memorandum of Understanding from Jordan guaranteed Abu Qatada would be treated properly.

But in January this year, the government lost on the second critical complaint that he would not get a fair trial because Strasbourg decided (largely echoing the UK's own Court of Appeal) that the original torture evidence would be used against the cleric.

Strasbourg said it was unconvinced Jordan's legal guarantees against torture evidence would have "any real practical value".

And so, in the absence of any assurance from Jordan on this point, the deportation was off. Cue a media firestorm and weeks of frantic talks between the UK and Jordan over how to solve the situation.

Once Mrs May thought she had a deal with Jordan guaranteeing a fair trial for the preacher, she had to present it to Siac to see if deportation could now be approved, in line with Strasbourg's conditions.

And that is basically what this case is now about. It's not Abu Qatada on trial - but Jordan's legal system.

So has the UK got what it needs?

During two weeks of hearings last month, Mrs May's lawyers told Siac there was now ample documentary evidence proving Qatada would get a fair trial.

The home secretary's lawyers emphasised the Jordanians have enshrined into their constitution an "express prohibition on the admissibility of evidence obtained as a result of torture". They stressed the judges at the State Security Court would be civilian, not military.

The men said to have been tortured into implicating Abu Qatada would be expected to give fresh evidence at retrial - in which they could explain how they were tortured - putting their original tainted statements in context.

'Specific assurance'

But Abu Qatada's lawyers say nothing has changed. In tense questioning of the lead British diplomat, Anthony Layden, it emerged Jordanian ministers would not give a specific assurance on what exactly would happen to the original torture-tainted statements.

Jordan's ministers kept saying that would be a matter for the trial judges. These judges would be able to call the witnesses afresh and dismiss the original statements.

Edward Fitzgerald QC, counsel for the cleric, repeatedly said the UK had achieved nothing new to satisfy Strasbourg's expectations. There was not a single piece of paper declaring the original evidence would be banned from trial, he argued.

So on the one hand there is the government saying it has gone to exhaustive lengths to prove Abu Qatada will be treated justly. It says Jordan is a country that will stick to its word because it has a reform-minded pro-West King and it doesn't want to be part of the international club of states that abuse human rights.

But on the other hand, there is the long-standing opposition of judges to any whiff of torture and questions over whether the UK has got anywhere near to the assurances European judges want.

That judicial opposition to torture evidence didn't just spring from the European Convention of Human Rights.

The Strasbourg judges pointed out in their January judgement that the British courts historically opposed torture evidence long before the convention was written.

They quoted the late Lord Bingham, who said in a 2005 judgement that such evidence was "unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice".

It was a very deliberate reference. They were arguing it is the British rule of law, not just Europe's, that expects Abu Qatada to remain in the UK - and he shouldn't be deported until we are sure that Jordan has cleaned up its act, no matter how politically painful that may be.

Make no mistake. Monday's decision on whether the radical cleric can be deported to Jordan is an extremely difficult one for any judge.

Dominic Casciani Article written by Dominic Casciani Dominic Casciani Home affairs correspondent

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  • rate this

    Comment number 39.

    Don't deport him to Jordan then. I'm sure the Americans would find him a nice comfy cottage in Guantanamo Bay.

  • Comment number 38.

    This comment was removed because the moderators found it broke the house rules. Explain.

  • rate this

    Comment number 37.

    Surely, with all the hatred and violence this person espouses against the western society that provides him with a level of social suport he would not get in his own, he has shown his contempt for human rights and therefore should not rely on them for his own protection. He does not deserve the protection the legal system provides for he is not worthy of this country. Be rid of him.

  • rate this

    Comment number 36.

    Today of all days its a travesty that this inhumane vitriolic individual should even be in this country, let alone be holding us to ransom, come the 11th hour this country needs to really really stand up for what is morally right.

    Ship him out.

  • rate this

    Comment number 35.

    Once again we are being governed by another country using a law that we don,t want,send him back as soon as or he will make us pay for his trail again,take no notice of the people using these laws to keep him here,also check them out,are they here legally?

  • rate this

    Comment number 34.

    If Strasburg think his human rights have not been met then let them take him in and his whole family , but not at our expense thank you .

  • rate this

    Comment number 33.

    This is very simple and goes to the heart of the current problems in this country.
    Do the UK govt want him out – yes.
    Should we be able to do it – yes.
    Is it wrong that the ECHR can stop us – yes.
    Regardless of whether we ever get a vote on EU membership we should withdraw from the ECHR immediately – we have our own laws thank you.

  • rate this

    Comment number 32.

    1994 man who was tortured in Jordan offered asylum in the UK By 1995 he said in an interview on Panorama that "it was Islamically lawful to kill the wives and children of "apostates" (like me) using his position as a Muslim 'scholar' to promote hatred and murder at our expense. Chuck him out.

  • rate this

    Comment number 31.

    You wonder why he'd want to stay in the UK as he despises Western values so much (apart from the free board and lodging). If we are worried about abuse of his human rights in Jordan he could be offered the choice of another of the Arab states. Saudi Arabia, Syria, Bahrain, Egypt, Qatar all ring out as models of democracy and tolerance where his views will be respected.

  • rate this

    Comment number 30.

    These people have no human rights and we need to be much tougher on them.

  • rate this

    Comment number 29.

    This person should never have been allowed into the country in the first place he is an illegal immigrant wanted in his own country for crimes , he denigrates our way of life abusing our hospitality living of our money while openly calling for our demise ! , and our idiot judges think he should stay . he would change our country into a muslim state in no time at all given the chance BOOT OUT OUT.

  • rate this

    Comment number 28.

    The Jordanian government have promised that Abu Qatada will get a fair and Open Public Court Hearing now that’s one BIG step for the people of Jordan as a whole. I cannot see Jordan breaking that pledge they would have too much to lose.

  • Comment number 27.

    This comment was removed because the moderators found it broke the house rules. Explain.

  • rate this

    Comment number 26.

    I believe British 'principles' and laws should fully protect you as long as you agree to abide by them.

    Once you cross the line by breaking them or encouraging others to do so, their protection no longer applies to you...

    Mr Qatada has displayed a withering contempt for everything our laws stand for, therefore he cannot expect to hide behind them.


  • rate this

    Comment number 25.

    Stop pussy footing about and send him to Jordon.

  • rate this

    Comment number 24.

    People who don't believe in due process and the law because they want to 'get' someone they don't like,damage the fundamental freedoms we have fought for in this country since Magna Carta. The lynchmob mentality of some of the press in Britain is largely to blame. The law is the law and the government are beholdant to it - remember, they are merely the servants of the state elected by us.

  • rate this

    Comment number 23.

    Provided that evidence can be given of his anti-British statements (not this supposedly secret MI5/6 information), then it is surely a civil matter, on the balance of probabilities, that he can be asked to leave. It doesn't have to be Pakistan. He can be asked to state which country he would like to be sent back to, and that should be done almost immediately to reduce the cost to the UK.

  • rate this

    Comment number 22.

    This country is only free because hard men did terrible things to protect us. I personally don't care if he was indicted as a result of confessions gained using violence or coercion. The balance of evidence suggests that this vile man is an enemy of the State. Let's not forget the lack of respect for the potential victims' human rights. Send him back to Jordan on the next plane.

  • rate this

    Comment number 21.

    "... secret material gathered by MI5 ... cannot be used ..."
    British justice operates like the Soviet system did? The KGB's secret material couldn't be used in trials, so nobody knew what that material was, and no-one got a chance to contest it. If he weren't a Muslim, he wouldn't be treated like this. His fair treatment should not depend on whether "he likes" British society or not.

  • rate this

    Comment number 20.

    Consider his Basic Human Rights.

    Q.Does he like British society?

    A. He's made it very clear he does not.

    Q. Will British society ever change to the extent that he will be happy liiving in the UK?

    A. No

    Therefore for his own mental wellbeing & in order to ensure his Human Rights & general theological needs are fully met he would undoubtedly be better off in a different country.


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