Why can’t the UK deport Abu Qatada?

This guest post is by Natasa Mavronicola, a PhD candidate at the Faculty of Law, University of Cambridge. 

The Special Immigration Appeals Commission has recently ruled that radical cleric Mohammed Othman (Abu Qatada) cannot lawfully be deported to Jordan, as such deportation would be in breach of the right to a fair trial enshrined in Article 6 of the European Convention on Human Rights (‘ECHR’), which has been transposed into UK law through the Human Rights Act 1998. This development has been met with strong reactions by the UK government, as well as a significant segment of the media and the public. An outline of the key points of law at issue in this case can provide food for thought and enable informed debate on this matter.

The right to a fair trial and the use of evidence obtained through torture

Article 6 of the ECHR provides that everyone is entitled to a fair trial in the determination of his civil rights and obligations or of any criminal charge against him. The right to a fair trial enshrined in Article 6 of the ECHR encompasses a number of elements, including the entitlement to a reasonably prompt hearing, the right to be tried before a fair and impartial tribunal, the presumption of innocence, and rights of cross-examination in criminal trials. Recently, the Grand Chamber of the European Court of Human Rights (‘ECtHR’) ruled that the use of evidence obtained through torture to convict a defendant in a criminal trial amounted to a breach of the right to a fair trial enshrined in Article 6 of the ECHR. Torture is absolutely prohibited under Article 3 of the ECHR and at international law, and the right not to be subjected to torture is seen by the ECtHR as a core right, which is fundamental in democratic societies and which is inviolable. The use of evidence obtained through a breach of such a fundamental right is thus seen as wholly tainting the fairness of the trial. Moreover, statements obtained by individuals through torturing them are perceived as unreliable by the ECtHR, an attribute that would further undermine the fairness of the trial if such evidence were admitted.

This became crucial in relation to Abu Qatada’s proposed deportation to Jordan, where he faces charges for the commission of terrorist offences. The Jordanian authorities held evidence against him, in the form of incriminating witness statements from individuals implicated in the relevant terrorist offences. Abu Qatada alleged that certain of these witness statements were likely to have been obtained through the torture of those witnesses and were also likely to be used against him in court.

Expulsion, flagrant breach, and the ‘real risk’ question

The ECtHR considered this allegation in Othman (Abu Qatada) v UK and made a number of important legal points and findings. The Court considered that the prospect of a ‘flagrant denial of justice’ in the country to which an individual was being expelled to could raise an issue under Article 6 ECHR. According to the Court, a flagrant denial of justice went beyond irregularities or lack of safeguards in trial procedures but amounted to a breach that was so fundamental it amounted to a destruction of the very essence of the right enshrined in Article 6. The Court then confirmed that the use at trial of evidence obtained by torture would amount to such flagrant denial of justice and breach Article 6, since, according to the Court, it would make the whole trial immoral and illegal and render its outcome entirely unreliable. The Court therefore found that if the applicant could show there was a real risk of such evidence being admitted in the trial against him in Jordan, his expulsion to Jordan would be contrary to Article 6 of the ECHR.

Turning to the factual allegations regarding the risk of the use of such evidence in trial, the ECtHR found that the admission of evidence obtained by torture was widespread in Jordan despite guarantees against such admission in the law. The Court further relied on findings by the UK’s Special Immigration Appeals Commission, which had found that the applicant had demonstrated a real risk that certain key evidence was obtained by torture and that there was a high probability that this evidence would be admitted at the applicant’s trial. The ECtHR therefore found that the applicant had demonstrated a real risk of a flagrant denial of justice if he was deported to Jordan, and the applicant’s deportation to Jordan would be in violation of Article 6 of the ECHR.

Despite attempts by the UK government to use assurances by the Jordanian government and changes in Jordanian law to disprove the finding that there was a real risk of the admission of evidence obtained through torture in Abu Qatada’s prospective trial in Jordan, the Special Immigration Appeals Commission ruled on 12th November 2012 that the real risk subsisted. The government is considering an appeal from this decision, and Abu Qatada has been released on bail in the meantime.

Abu Qatada’s case raises questions regarding the interplay between the absolute prohibition on torture and the notions of justice and fairness. For instance, how far does or should the unreliability of evidence obtained by torture be a significant factor in the analysis? The case further raises questions over the relationship between law (notably human rights law) and politics in the notoriously contentious area of security and counter-terrorism. In particular, it highlights that human rights law often operates to protect the core rights of extremely unpopular minorities or individuals even against vehement public opinion. Given that the prohibition on torture is portrayed by the ECtHR as fundamental to democratic society and as core to the essence of justice, the controversy that this case has given rise to exposes the deep-rooted and constant debate over the precise meaning, content, and role of democracy, justice, and human rights in our societies.