The Abu Qatada Saga: Have Human Rights Gone Wrong?

Last week saw the end of the Abu Qatada saga, with him being deported back to his native Jordan.

The tabloid press were overjoyed that this individual had finally been removed from the country. And, they said, he would have gone a lot sooner had it not been for human rights. Some of the Conservative members of the Coalition Government agreed with this. They are determined to change the influence of human rights law so we can deport people as and when we like.

So what really was the issue and do human rights deserve to be criticised?

The Relevant Facts

The Abu Qatada saga is a long and complex one. For these purposes the following facts are sufficient. Abu Qatada is a dangerous terrorist. He has been convicted twice in his native Jordan for serious terrorist offences, both times in his absence. He was sentenced to life imprisonment with 15 years hard labour.

The UK Government wanted to deport Qatada back to Jordan because he is dangerous. It started the process of trying to deport him in 2002. He has spent most of the intervening time in prison awaiting deportation.

So what prevented the Government from deporting Qatada?

Human Rights Law: Torture and Fair Trials

Article 3 of the European Convention on Human Rights (ECHR) provides that ‘no one shall be subjected to torture or to inhuman or degrading treatment or punishment’.

This means that in any country which has signed the Convention an individual cannot be tortured. In a number of cases the question arose of whether an individual could be sent to a country where they would likely be tortured. After all, if it is unacceptable to torture an individual why should it be acceptable to send an individual to a country where we know they are going to be tortured?

In the case of Chahal v United Kingdom (1996) the European Court of Human Rights held that, even in the case of a suspected terrorist, an individual cannot be deported from a country if there are substantial grounds for believing there is a real risk of them being subjected to torture. So, when an individual is likely to be tortured when they are returned home, we cannot remove them.

The Government knew that this case would be problematic in its attempt to remove Qatada, because it was widely accepted that torture was used in Jordan. If there was a real risk Qatada would be tortured then he could not be removed on human rights grounds. To avoid this, the Government signed a ‘Memorandum of Understanding’ (MOU) with the Jordanian government, an agreement that Qatada would not be tortured if he was deported.

Armed with this MOU the Government sought to deport Qatada. However, he appealed arguing that he would be tortured. He also argued that to deport him would breach his right to a fair trial under Article 6 of the ECHR. He said that this right would be breached because any trial he would face in Jordan would allow evidence to be used against him that was obtained by torturing others. The argument was similar to the argument under Article 3. If we would not allow evidence obtained by torture to be used in a country that has signed the Convention then why should we allow an individual to be sent to a country where exactly this might happen?

The House of Lords (the highest court in the UK at the time) agreed that deporting someone in these circumstances could potentially breach Article 6. It held, in RB (Algeria) v Secretary of State for the Home Department (2009), that to deport someone where there are substantial grounds for believing that the individual would be exposed to a real risk of being subjected to ‘a flagrant denial of justice’ would violate Article 6. While it accepted that being subject to a trial which admitted evidence obtained by torture could satisfy this test, it found there was no risk of this happening on the facts. It therefore said Qatada’s deportation would be lawful.

Qatada appealed to the European Court of Human Rights (Othman v United Kingdom (2012)), making the same arguments about Articles 3 and 6. The Court dismissed the appeal on Article 3; it held that the MOU was a sufficient assurance that Qatada would not be tortured if deported. Therefore there was no breach of Article 3 by deporting him.

However, for the first time in the Court’s history, it held that deporting Qatada would breach his right to a fair trial under Article 6 because there were substantial grounds for believing that evidence obtained by torture would be used in the trial against him and this would be a flagrant denial of justice. Qatada’s deportation was therefore blocked.

Following this the Government sought further assurances from Jordan that it would not use evidence obtained by torture. Once it had done this it tried again to deport Qatada again. This time the Special Immigration Appeals Commission (a UK court) ruled that there was still a real risk of evidence obtained by torture being used, so deportation was blocked on Article 6 grounds. The Government appealed to the Court of Appeal and lost. It then looked to appeal to the Supreme Court (the House of Lords’ replacement).

However, in May, Qatada surprised everyone and announced that he would leave the UK voluntarily if a treaty was signed by the UK and Jordan guaranteeing him a fair trial that would not use torture evidence. Unsurprisingly, the treaty was enacted rapidly, and, on 7 July, Qatada left the UK for Jordan, where he is to now face terror charges.

Human Rights Gone Wrong?

Having examined the decisions then, the question is have human rights gone wrong? Did they wrongly protect Qatada? The answer must surely be no. Few are likely to argue that we should subject people to torture, or the product of it. Aside from striking at the core of a democratic society, it often produces evidence of negligible value; who would not say what they thought their torturer would want them to say to stop the torture?

Human rights often protect disliked minorities in society. But that is the whole point of them. They protect anyone who is in danger of being subject to inhuman treatment. The UK is rightly regarded as the pinnacle of justice, fairness and democracy. We set the highest standards in the world that other countries are judged by.  We should be proud of that. I accept that over a million pounds of public money in legal fees to remove an individual is a huge sum, but it is a small price to pay for justice. If you disagree, I trust you would be prepared to face a Jordanian trial?

European Court of Human Rights Rules Whole Life Sentences Breach Human Rights

The European Court of Human Rights (ECtHR) has ruled that ordering prisoners to serve the rest of their lives in prison without the prospect of release breaches their human rights.

Three murderers, Douglas Vinter, Jeremy Bamber and Peter Moore, all had a whole life sentence imposed on them for their crimes. They could never expect to be released, apart from in exceptional circumstances, such as on compassionate grounds.

They argued that never having the option to be released back into the community breached their right under Article 3 of the European Convention on Human Rights not to be subject to ‘inhuman and degrading treatment’.

The Court agreed, although it noted that the prisoners did not have the prospect of imminent release.

Before commenting on the decision I shall explain the Court’s reasons (available here).

The Judgment

Firstly, the Court was keen to stress there is nothing in principle wrong with a prisoner serving a whole life sentence, so long as there is the prospect of it being reviewed and potentially reduced. It said, for example, there was nothing wrong with detaining a prisoner for life if they posed a danger to society, so long as the sentence could be reviewed.

However, the Court held that a whole life sentence must be capable of being reduced (and therefore reviewed) for four reasons.

1) the reasons for detention are not static and can change over time. For example, if a whole life sentence is imposed to punish a prisoner and because they are a danger to society this may change if the prisoner alters their life and can show they are no longer a danger to the public;

2) a prisoner can never ‘make up’ for their offence if they have no prospect of ever being released. Instead the punishment becomes worse over time the longer the prisoner lives;

3) it is against human dignity for the State to deprive a person of their freedom indefinitely without at least providing some chance of freedom in the future; and

4) the emphasis in European penal policy is now on rehabilitation, returning people to useful life.

Therefore any sentencing regime that does not allow for the review of a life sentence will breach an individual’s right not to be subject to inhuman and degrading treatment. Reviews are necessary; it was suggested after 25 years might be appropriate. Essentially then, whole life sentences are unlawful.

English law does not allow a review of a whole life sentence. It only provides that the power to release a prisoner can be used in exceptional circumstances, such as on compassionate grounds. It therefore breaches the Article 3 right of whole life prisoners not to be subject to inhuman and degrading treatment.

From this it becomes clear why the applicants in this case cannot expect imminent release. Life sentences are not wrong in principle, but refusing to review, and potentially reduce, them is.

Comment

I personally find this decision a difficult one to agree with. I do not disagree agree at all with the notion of a review. After all granting a review merely demonstrates our compassion, compassion which an offender will have denied their victim. It differentiates society from the offender.

However, I am not sure the decision makes logical sense. Under current law (found in Schedule 21 of the Criminal Justice Act 2003) a whole life sentence can be imposed when the court considers the seriousness of the offence is ‘exceptionally high’. The order is imposed because the offence is so serious that our law judges it to be deserving of a whole life sentence. This assessment of seriousness, assuming it is correct, is unchanging: something that is exceptionally serious will remain exceptionally serious 25 years from now (presuming that murders do not become so much worse in the future that past murders appear less serious). So while a review may be necessary, what exactly will it achieve? If the assessment of the gravity of the offence remains the same then there will be no cause to reduce the sentence ever. It seems that any review will only be a formal process to satisfy the requirements of Article 3.

Our law on whole life sentences does not directly focus on the dangerousness of the offender or other related factors. It focuses only on the gravity of the offence. It makes the policy decision that those murders which are of exceptional gravity should be punished without the prospect of release. The real question therefore is not about the necessity to review any sentence. Instead, it is whether pure punishment alone can justify a whole life order? The UK Government would doubtlessly argue that it is our sovereign right to decide on which basis to sentence convicted individuals. Are we obliged to consider other factors, such as the rehabilitation of offenders?  I am not sure that a court is best placed to decide these inherently philosophical questions. Nevertheless, I believe that the European Court missed that this was the real point in this case.

It will be interesting to see how the Government decides to react to this judgment. It certainly is not pleased with it.

For more information generally on the European Convention on Human Rights, see this article.

What are your thoughts? Should we have whole life sentences? And should they be capable of review?

Cameras in Courts: to be Welcomed?

Today, the Government has confirmed that it will allow filming in the courts from October.

Initially, filming will be allowed in the Court of Appeal and broadcasters will be permitted to show pictures of the lawyers involved and the judges. The Government hopes to then extend filming to the Crown Court, where images of judges passing sentence would be allowed to be broadcast. The Government says broadcasting court proceedings will make the justice system more transparent and will build trust in the justice system.

So is broadcasting court proceedings a good idea? I shall now summarise some of the main arguments for and against filming in the courts.

Arguments in favour of filming in court 

1) Filming court proceedings would make the justice system more transparent and build trust in the justice system because the public could see justice in action.

2) Filming court proceedings would improve understanding of the justice system.

3) It would allow the public to see the very important work of legal professionals and the court system, and encourage appreciation of them.

4) Finally, and related to the third point, the public would support a fully funded court and legal aid system because it would see the value of them.

Arguments against filming in court

1) Filming in the courts would not necessarily build trust in the justice system. For example, televising MPs in Parliament has not made the public trust politicians any more.

2) Televising the courts would not necessarily improve public understanding. The public sees Parliament on television but does not seem to understand it much better. Moreover, it could positively cause misunderstanding. If only part of the proceedings are televised it might mislead the public as to the true nature of a case.

3) Seeing the work of the courts would not inevitably mean that the public appreciates it any more. The public sees Parliament in action but does not appreciate it any more.

4) The public would not support more funding for the courts and legal aid simply because proceedings are televised. Once again, Parliament is televised but the public certainly does not support a salary increase for politicians.

5) Filming court proceedings could affect the behaviour of those involved. Witnesses and, to a lesser extent, lawyers may ‘act up’ for the cameras.

All of these arguments do not deal with the issue of whether the public would even find televised court proceedings interesting. For example, the appeal courts almost exclusively deal with questions of law, they do not deal with the facts of a crime. Would the public be that interested in listening to, often complex, legal arguments? That said, proceedings in the Supreme Court (the highest court in the land), which also deal with complex legal arguments, are televised already (see here) and apparently have 90,000 daily viewers.

What are your thoughts? Do you think televising court is a good idea? Would you find it interesting?