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| Abu Qatada's deportation is unlikely, but charges might see him jailed | Abu Qatada's deportation is unlikely, but charges might see him jailed |
| (30 days later) | |
| The home secretary tried extremely hard to get Abu Qatada deported to Jordan. For the one-day appeal this month against a ruling of the special immigration appeals commission (Siac) – the court that deals with terrorism-related deportation cases – Theresa May briefed no fewer than three QCs and one junior counsel. By contrast, Qatada was represented by one QC and one junior. | |
| But the odds were stacked against May. The legislation under which Siac operates – passed, admittedly, under the last Labour government – makes it clear that appeals against its rulings may be brought only on a question of law that is material to the ruling. So an appeal is not a rehearing of the evidence: the appeal judges cannot overturn an earlier decision simply because they might have decided the case differently themselves. | But the odds were stacked against May. The legislation under which Siac operates – passed, admittedly, under the last Labour government – makes it clear that appeals against its rulings may be brought only on a question of law that is material to the ruling. So an appeal is not a rehearing of the evidence: the appeal judges cannot overturn an earlier decision simply because they might have decided the case differently themselves. |
| The provision restricting appeals to points of law was no doubt intended to limit challenges by people facing deportation. An individual who has lost his case at Siac has to prove that a specialist tribunal got the law wrong – not an easy task. | The provision restricting appeals to points of law was no doubt intended to limit challenges by people facing deportation. An individual who has lost his case at Siac has to prove that a specialist tribunal got the law wrong – not an easy task. |
| Perhaps ministers did not consider that an appeal against a Siac ruling might ever be brought by the government of the day. Or perhaps they thought that if the suspect was "regarded by the UK government as an exceptionally high-risk terrorist", the appeal judges would roll over and find some way of getting round the law. It is to the credit of Lord Dyson, Lord Justice Richards and Lord Justice Elias that they did not seek to curry favour with the government by doing so. | Perhaps ministers did not consider that an appeal against a Siac ruling might ever be brought by the government of the day. Or perhaps they thought that if the suspect was "regarded by the UK government as an exceptionally high-risk terrorist", the appeal judges would roll over and find some way of getting round the law. It is to the credit of Lord Dyson, Lord Justice Richards and Lord Justice Elias that they did not seek to curry favour with the government by doing so. |
| To be fair to the home secretary, she did not criticise the three appeal judges in a statement issued on her behalf. "We will consider this judgment carefully and plan to seek leave to appeal," the Home Office said cautiously. | To be fair to the home secretary, she did not criticise the three appeal judges in a statement issued on her behalf. "We will consider this judgment carefully and plan to seek leave to appeal," the Home Office said cautiously. |
| Nor did May blame the Human Rights Act 1998. But then the act itself was immaterial to the latest ruling. The UK's highest court ruled against Qatada in 2009, concluding – despite the Human Rights Act – that he could receive a fair trial in Jordan. | Nor did May blame the Human Rights Act 1998. But then the act itself was immaterial to the latest ruling. The UK's highest court ruled against Qatada in 2009, concluding – despite the Human Rights Act – that he could receive a fair trial in Jordan. |
| It was the European court of human rights in Strasbourg that decided, in January 2012, that there was a real risk of Qatada being retried in Jordan on evidence that had been obtained by the torture of his two co-defendants. That, said the Strasbourg judges, "would make the whole trial not only immoral and illegal, but also entirely unreliable in its outcome". | It was the European court of human rights in Strasbourg that decided, in January 2012, that there was a real risk of Qatada being retried in Jordan on evidence that had been obtained by the torture of his two co-defendants. That, said the Strasbourg judges, "would make the whole trial not only immoral and illegal, but also entirely unreliable in its outcome". |
| Individuals have been able to take the British government to the human rights court since 1966. But this is the right that would be lost if the UK withdraws from the human rights convention, as May has recently suggested it should. As the Guardian's Alan Travis has already pointed out, it is hard to see how any further appeal by the home secretary to the supreme court would be any more successful than her appeal to the court of appeal. | Individuals have been able to take the British government to the human rights court since 1966. But this is the right that would be lost if the UK withdraws from the human rights convention, as May has recently suggested it should. As the Guardian's Alan Travis has already pointed out, it is hard to see how any further appeal by the home secretary to the supreme court would be any more successful than her appeal to the court of appeal. |
| The appeal judges were at pains to point out that the Strasbourg court prevents deportation only very rarely. "The fact that there is a risk that the deported person will not have a fair trial is not enough. There must be a real risk that he or she will suffer a flagrant denial of justice." | The appeal judges were at pains to point out that the Strasbourg court prevents deportation only very rarely. "The fact that there is a risk that the deported person will not have a fair trial is not enough. There must be a real risk that he or she will suffer a flagrant denial of justice." |
| As the court of appeal explained: "What is required is a real risk of a breach of the principles of a fair trial guaranteed by article 6 which is 'so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that article'." | As the court of appeal explained: "What is required is a real risk of a breach of the principles of a fair trial guaranteed by article 6 which is 'so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that article'." |
| So the chances that Qatada will be deported to Jordan seem slim. The Jordanians have had more than a year to find evidence against him that is not tainted by torture, apparently without success. | So the chances that Qatada will be deported to Jordan seem slim. The Jordanians have had more than a year to find evidence against him that is not tainted by torture, apparently without success. |
| But there is another aspect to the Qatada saga. This month he was arrested for allegedly breaching his bail conditions. It is not for me to say whether these allegations are justified. But anti-terrorist police announced last week that they were investigating whether Qatada was responsible for material that might be used to spread extremism across the world. | But there is another aspect to the Qatada saga. This month he was arrested for allegedly breaching his bail conditions. It is not for me to say whether these allegations are justified. But anti-terrorist police announced last week that they were investigating whether Qatada was responsible for material that might be used to spread extremism across the world. |
| If there is sufficient evidence, Qatada might face terrorism-related charges in the UK. In that event, he might well have difficulty in persuading a judge that he should be released on bail. In the meantime, this "dangerous and controversial person" – to quote the phrase adopted by the court of appeal – remains in custody. | If there is sufficient evidence, Qatada might face terrorism-related charges in the UK. In that event, he might well have difficulty in persuading a judge that he should be released on bail. In the meantime, this "dangerous and controversial person" – to quote the phrase adopted by the court of appeal – remains in custody. |
| • This article was amended on 24 April 2013. It originally referred to a one-day hearing taking place before the special immigration appeals commission (Siac) taking place in March. The event was actually an appeal against the Siac ruling. This has now been corrected. |