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What can Theresa May do to deport Abu Qatada?

12 November 2012

5:33 PM

12 November 2012

5:33 PM

Theresa May gave a defiant statement to the house on the Special Immigration Appeals Committee’s (SIAC)  decision to uphold Abu Qatada’s appeal against deportation to Jordan on grounds that he would not receive a fair trial. She vowed to fight on by ‘appealing the decision’, which prompts the question: how will she do that?

It’s necessary to understand what the SIAC considered (here is its judgment and here is a précis). First, it examined whether or not evidence given by Qatada’s former co-defendants in an earlier trial (from which Qatada was absent), Abu Hawsher and Al-Hamasher, is admissible in Qatada’s retrial. This question is not initially concerned with whether the evidence was obtained under torture, merely if it is admissible under Jordanian law. Jordanian law cannot answer the question; so the SIAC declined to reached a decision, ruling that ‘until and unless the [Jordanian] Court of Cassation gives an authoritative ruling on the question, it must remain open.’

An obvious route, then, is for the Home Office not to appeal the SIAC’s decision but rather to change the case’s facts (and therefore start a new deportation process, perhaps with a higher chance of success) by convincing the Jordanians to change the law so that, in the words of the SIAC’s judgment, ‘statements made to a public prosecutor by accomplices who are no longer subject to criminal proceedings cannot be admitted probatively against a returning fugitive.’

This would remove the question of torture, in this instance at least. However, it may be that the Jordanian prosecuting authorities believe such evidence to be vital to their case, and therefore will insist that it remains admissible. In which case, we turn to the question of whether there was a ‘real risk’ of that evidence being obtained under torture. This was the second issue considered by the SIAC. It reached the conclusion that there was a ‘real risk’ because relevant authorities had not proved to a sufficient degree that the evidence was obtained legitimately once a ‘substantial risk’ had been established.

As the lawyer Carl Gardner points out in an excellent and hugely informative post, an appeal against the SAIC’s judgment can only be made on a question of law rather than a question of fact. The problem is that foreign laws are, by definition, a question of fact in British courts. Gardner lists several clever ways in which the relevant points in the Qatada case can be framed as a question of law to satisfy the British courts that there are grounds for appeal. These schemes range from challenging the SIAC’s assumptions about what constitutes ‘real risk’ to demonstrating that the SIAC has defined ‘real risk’ as ‘some risk’.

Gardner is confident that the Home Secretary can appeal on those terms. Yet presumably any appeal would still be determined by the ability of Jordanian authorities to prove to an acceptable standard that the evidence was not procured by torture. This has been a sticking point for both the SIAC and the ECtHR thus far. How might their underlying concern be allayed in future? The Jordanian government has assured the British government that no evidence obtained through torture would be used against Qatada. Clearly those assurances were not sufficient for the SIAC. Plainly something greater than words is required unless the SIAC’s core assumptions were misguided.

These questions are difficult and confounding, especially given Qatada’s proclivities, hypocrisies and open animosities; but due process in these matters is a price of civilisation.

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