Court of Appeal

Published April 15, 2008

Othman (Jordan) v Secretary of State for the Home Department

Before Sir Anthony Clarke, Master of the Rolls, Lord Justice Buxton and Lady Justice Smith

Judgment April 9, 2008

A foreign national could not be deported on national security grounds to a state where he was at real risk of being tried on evidence obtained by torture because such an expulsion would contravene his right to a fair trial guaranteed by article 6 of the European Convention on Human Rights.

The Court of Appeal so held, allowing the appeal of the claimant, Omar Othman, otherwise known as Abu Qatada, against the decision, on February 26, 2007, of the Special Immigration Appeals Commission that his deportation would not violate the United Kingdom’s obligations under the Convention.

Mr Edward Fitzgerald, QC, Mr Raza Husain and Mr Danny Friedman for Abu Qatada; Mr Philip Sales, QC, Mr Robin Tam, QC, Mr Tim Eicke and Mr Andrew O’Connor for the Home Secretary; Mr Angus McCullough and Mr Martin Chamberlain as special advocates.

LORD JUSTICE BUXTON, delivering the judgment of the court, said that the Home Secretary wished to deport Abu Qatada to his native Jordan on the ground, not challenged before the court, that he was a danger to the national security of the United Kingdom.

Abu Qatada was born in 1960 in Bethlehem, then administered as part of the Kingdom of Jordan. He was described by the commission as an Islamist extremist, who advocated changing the present regime in Jordan from a monarchy to an Islamist regime governed by Islamist law. He had clear links to many terrorist groups and individuals, and as such was seen as a threat to the stability of the state of Jordan.

He arrived in the United Kingdom in 1993, having previously fled Jordan and gone to Pakistan. He made a successful application for asylum on the basis that he had been tortured by the Jordanian authorities, a claim that the commission accepted might well have been true.

In April 1999, Abu Qatada was convicted in Jordan in his absence of conspiracy to commit terrorist activities and sentenced to life imprisonment. In 2000, still absent from Jordan, he was one of 28 defendants in a trial relating to conspiracy to cause explosions. He was convicted and sentenced to 15 years in prison.

It was alleged by those who had been present that the evidence against them had been extracted by torture. It was accepted before the commission that Jordan’s general human rights record was poor, not least in respect of torture. With that in mind the Foreign and Commonwealth Office concluded a memorandum of understanding with Jordan, which offered safeguards in relation to the treatment of persons returned to Jordan.

Abu Qatada complained that if he returned to Jordan he would be retried on the matters in respect of which he was convicted in his absence and other charges. He alleged that in that process there would be breaches of article 6 of the Convention.

Convention jurisprudence trod warily in cases where the complaint against a state, party to the Convention, was not that the domestic acts of that state were in breach of the Convention, but rather that if the state used its powers in domestic law to expel a person to a third country, that person would in that third country suffer conduct that if committed by a member state would be in breach of the Convention.

That diffidence sprang from the need to respect the rights of signatory states to control their own borders and the entry and residence rights of aliens. However, in the case of articles of the Convention that enshrined absolute rights, such as article 2, in relation in particular to the prohibition of capital punishment, and article 3, that principle had to yield to the imperative need to protect individuals from such treatment. Accordingly, the signatory state could not expel an alien to a country where he would face a risk of inhuman or degrading treatment.

While there was no case in which the European Court of Human Rights had recognised a breach of the Convention where extradition or expulsion was resisted on the basis of conduct inconsistent with article 6 in the receiving state, the court had recognised that such a complaint was maintainable.

The House of Lords addressed the problem of assessment of Convention standards in third-party states in R (Ullah) v Special Adjudicator (The Times June 18, 2004; [2004] 2 AC 323) and recognised that broadly the same principles applied to all articles of the Convention apart from articles 2 and 3. There was a need to establish a flagrant denial of a fair trial in article 6 cases.

For Abu Qatada, it was argued that trial before a court which lacked impartiality in the Convention sense was enough to remove the possibility of expulsion. That argument was based on citations of domestic cases which addressed the obligations of the signatory state in relation to the legal system for which it was responsible.

The present problem was whether in the receiving state there would be a complete denial or nullification of the right to a fair trial.

It was open to the cmmission to analyse carefully the actual position and procedure of the foreign court and to conclude that although it was not independent and impartial in domestic terms, trial before it would not amount to a complete denial of justice.

It was not, however, open to the commission to conclude that the claimant’s deportation would not breach his Convention rights on the ground that he was under a real risk of being convicted on evidence obtained by torture.

The use of evidence obtained by torture was prohibited in Convention law not just because that would make the trial unfair but also and more particularly because of the connection of the issue with article 3, a fundamental, unconditional and nonderogable prohibition that stood at the centre of the Convention protections.

It was universally recognised that the use of evidence obtained by torture was prohibited, not primarily because it was likely to be unreliable, but because the state had to stand firm against the conduct that had produced the evidence.

The commission was wrong not to recognise that crucial difference between breaches of article 6 based on that ground and breaches of article 6 simply based on defects in the composition of the court or in the trial process.

Rather it treated the possible use of evidence obtained by torture pari passu with complaints about the independence of the court. That caused it not to recognise the high degree of assurance that was required in relation to proceedings in a foreign state before a person could lawfully be deported to face trial that could involve evidence obtained by torture.

The Commission having misdirected itself in law, its conclusion could not stand.

Solicitors: Birnberg Peirce & Partners; Treasury Solicitor; Special Advocates Support Office, Treasury Solicitor.

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