Monday, September 01 2014


Abu Qatada and the rule of law


There has been significant coverage in the press last couple of days on the decision by the British judiciary to grant ‘control order’ bail to Abu Qatada, a Jordanian who has been detained in UK for nine years, without charge or trial.

Abu Qatada was convicted of terrorism offences in Jordan in absentia. His deportation from the UK was recently blocked by the European Court of Human Rights on fear of his right to a fair trial, protected under Article 6 of the European Convention, being threatened should he be deported. The ECHR in its judgment argued that there “remained a real risk that evidence obtained by torture would be used against Qatada, or Omar Othman as he is also known, and that would amount to a "flagrant denial of justice".”

The Home Secretary, Theresa May, has described the decision of the Special Immigration Appeals Commission (Siac) to release Abu Qatada, albeit under strict bail conditions, as “unacceptable”.

The Guardian states that “Mr Justice Mitting made the decision to release Qatada in the wake of a judgment at the European court of human rights last month that sending Qatada back to Jordan to face a terrorist trial based on "torture-tainted evidence" would be a flagrant denial of justice. Qatada is expected to be released from Long Lartin maximum security jail within days.”

“May faced strong criticism from her own backbenchers, with several demanding immediate legislation be introduced to repeal the Human Rights Act and suspend Britain's membership of the European convention on human rights.

“May assured them she shared their anger by telling them that she "disagreed vehemently" with the original European court of human rights ruling that blocked Qatada's deportation.”

The ‘control order’ conditions of Qatada’s bail have received significant criticism from human rights organizations. In its submission to the consultation on the review of Control Orders, Liberty described the control order regime as both unsafe and unfair and called for the practice to be ended. Last month, the control order system was replaced with ‘T-Pims’, a revision of control orders which have fewer controls and more surveillance.

The issue of his bail conditions aside, commentary on Abu Qatada’s case centers on the issue of why Abu Qatada has not stood trial in the UK. Richard Norton-Taylor, writing in the Guardian on Tuesday, offers reasons as to why this may be the case, and in an editorial the Guardian recounts the panoply of legislation and loss of moral compass that has contributed to the morass the Government now finds itself in.

The editorial noted:

“If ministers feel frustrated that they are now running out of options to restrain this very likely dangerous individual, that is understandable enough. But why is it, they should ask, that a whole decade after he was first locked up in Belmarsh (under emergency powers that proved unlawful), the full might of British justice has still not managed to put him in the dock?

“…there ought to be ways of bringing him to book. If there were indeed hate-fuelled sermons, then why can't tapes facilitate prosecution under various incitement charges? The ancient offence of soliciting to commit murder proved perfectly adequate for nailing other jihadis this way. And even after the attempt to deport Qatada to stand trial in Jordan unavoidably collapsed in Strasbourg – because of fears the trial would have been utterly corrupted by reliance on evidence extracted under torture – he could still potentially be punished for any serious crimes he committed in that country. The UK has the facility to try suspects for things like terrorism extra-territorially, if it can compile sound evidence.

“For a decade, counter-terrorism has fumbled in panic for extraordinary measures – internment, control orders, Tpims and gentlemen's agreements to enable deportations to despotism – until the proper way of doing things has almost been forgotten.”

Abu Qatada’s case and the decisions of the ECHR and Siac has also unleashed polemical commentary from those who claim the courts are endangering British citizens with their supposed cavalier attitude to security. Jewish Chronicle editor, Stephen Pollard, in a column in the Daily Express on Tuesday wrote:

“Forget any concern with the rights of British citizens to live free from terror. Now our own judiciary has joined the ECHR in putting the rights of a man who poses the gravest threat to national security above those he threatens.”

“Even by the standards of previous judicial rulings, that is a frightening prospect. A British judge is seriously contemplating allowing this man to walk free on British streets. It is rulings like this which bring the judicial system into contempt.

"Our safety is now mortgaged to the bizarre rulings of judges here and in Strasbourg.”

But as Peter Oborne argues in his column in the Daily Telegraph today, “It should be a matter of enormous national pride that an institution so profoundly British in its inspiration has refused to send an Arab fundamentalist (however despicable his crimes are alleged to be) to Jordan, where he might be tortured, or at best face the prospect of being sent to jail on the back of evidence acquired from a torture victim. Yet this decision has been greeted with horror by all three of our main political parties.

“Tuesday’s Commons debate, in particular, was a day of shame for Parliament, once famed as the cockpit of freedom and justice. MPs combined to demand that Britain flout the European Court. Only one solitary backbencher, Labour’s David Winnick, asked the obvious question: if Abu Qatada is such a bad egg, why not press charges and secure a sentence in court?”

When British citizens have had to resort to the European Court of Human Rights to protect their right to privacy from the Government’s invasive stop and search policy; or had to resort to the Court of Appeals to challenge the use of control orders and secret evidence to keep them locked up indefinitely, and when the influence of groups, like the Community Security Trust, on the Home Office in seeking exclusion orders against individuals who pose no threat to our security but who may espouse views discomfiting to the pro-Israel lobby, there are many that will breathe sighs of relief in knowing that the courts remain a robust line of defence against politicians whose cavalier attitudes to our security and liberty have undermined both.









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