Islamist extremist can be deported

I am pleased to see that the law lords agreed this morning with my criticism of the Court of Appeal’s decision last April, allowing Abu Qatada’s appeal against the Home Secretary’s decision to deport him.

According to the special anti-terrorist court known as SIAC, Abu Qatada is an Islamist extremist who advocates the use of violence to replace the Jordanian monarchy with an Islamic regime.

Jordanian courts have convicted him in his absence for explosives and terrorist offences. He would face retrials on these charges if returned there.

The problem identified by the Court of Appeal was that SIAC had found a “high probability” that the Jordanian courts would rely on evidence that “may very well” have been obtained through torture and that this would be of “considerable, perhaps decisive importance against him”.

It was not that he would be tortured, more that he would be convicted on evidence previously obtained through torture.

Writing in the Law Society Gazette last May, I said: “Jordanian law does not permit the use of evidence found to have been obtained involuntarily. SIAC was prepared to give Jordan the benefit of the doubt on this and so should we.

“It would help if the Jordanians were prepared to expand on the ‘memorandum of understanding’ they signed in 2005 by confirming that they would not rely on evidence obtained unlawfully. But there comes a time when our judges should stop trying to police other countries’ courts.”

And that’s pretty well what Lord Phillips said at paragraphs 153-4 of his judgment today, though in rather more sophisticated terms.

“As Lord Justice Buxton observed [in the Court of Appeal], the prohibition on receiving evidence obtained by torture is not primarily because such evidence is unreliable or because the reception of the evidence will make the trial unfair. Rather it is because ‘the state must stand firm against the conduct that has produced the evidence’.

“That principle applies to the state in which an attempt is made to adduce such evidence. It does not require this state, the United Kingdom, to retain in this country to the detriment of national security a terrorist suspect unless it has a high degree of assurance that evidence obtained by torture will not be adduced against him in Jordan. What is relevant in this appeal is the degree of risk that Mr Othman will suffer a flagrant denial of justice if he is deported to Jordan...

“The issue before SIAC was whether there were reasonable grounds for believing that if Mr Othman [Abu Qatada] were deported to Jordan the criminal trial that he would there face would have defects of such significance as fundamentally to destroy the fairness of his trial or, as SIAC put it, to amount to a total denial of the right to a fair trial.

“SIAC concluded that the deficiencies that SIAC had identified did not meet that exacting test. I do not find that in reaching this conclusion SIAC erred in law.”

I can’t leave this story without mentioning a typically charming aperçu by Lord Brown, at paragraph 252.

“I have had the advantage of reading in draft the very full opinions of my noble and learned friends ... and, finding myself in substantial agreement with them all, readily recognise that there is much to be said for my saying little, little to be said for my saying much.”

Posted at February 18, 2009 11:14 AM