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?