Strasbourg ruling in Abu Qatada case was the right outcome
The Strasbourg court's ruling in the Abu Qatada case may have been a bitter pill to 'swallow but it is the price to pay for the rule of law, says Amir Majid
Earlier this year Abu Qatada succeeded in his application before the European Court of Human Rights that he would be at real risk of being subjected to torture or ill-treatment if deported to Jordan. This decision has been deplored by many commentators but the Strasbourg court has not made any error of law and instead critics should focus on other methods of dealing with this individual, known to the British officials to harbour terroristic views.
Before we jump to criticise the European court and blame it for usurping our sovereignty in judicial matters, we should remember that, exercising our parliamentary sovereignty in section 6 of the Human Rights Act 1998, we have authorised all decision makers, including the courts, to take into account the principles of the ECHR such as the rule against torture.
I admire the prescience of straight talker MP David Winnick who, amid the saga of the Abu Qatada case, did not lose sight of the fact that the rule against torture could not be condoned by civilised nations meticulously adhering to the rule of law. He told the House of Commons on 7 February 2012: 'This person is clearly motivated by murderous hatredthere is no doubt about thatbut can the Home Secretary answer this question: He has been here for some 16 or 17 years. If there is evidence that he was inciting murder, why was he not charged? Would that not have been the most appropriate way of dealing with this fanatic?'
Torture is most repugnant and deserves the maximum denunciation. Evidence obtained by torture can never lead to justice. Almost every lawyer knows shocking examples of torture. Mine is from North Korea. The suspect said: 'I was taken to a room and was made to stand in water coming just above my shoulders. I was told that if I do not agree to sign the confession statement, the water level will be raised to drown me. Of course, to save my life, I agreed to sign the confession '“ I would have signed anything in that situation.'
An Iranian born Canadian journalist, ?Naziar Bahari, was tortured under blindfold and spat on. He refused to comply with the demand of his torturers to sign a confession to 'incriminate' six opposition leaders of Iran whom he had 'never met.' After horrendous torture, the torturer had told Mr Bahari I have yet not put 'maximum pressure' on you and 'still you do not know what I am capable of.'
Resisting torture
Not only is this kind of evidence totally unacceptable and serves no use, the torture techniques have caused the suspects to develop some protective measures to escape tendering evidence under torture. A Syrian Shia lady was frightened for her life and when the BBC interviewer asked her name, she refused and said, 'I shall not give my name to you; we all know that under torture it can be revealed to authorities.'
Article 3 of the European convention is very brief. It says: 'No one shall be subjected to torture or to inhuman or degrading treatment or punishment.'
In many cases, such as Saadi v Italy, it has been held that the rule against torture is 'absolute' and states indulging in it cannot have exemption from it on any ground.
Even in his 1968 'Rivers of blood' speech, denigrating the immigration in this country, Enoch Powell could not overlook the quintessential characteristics of the observance of the rule of law, saying 'All citizens should be equal before the law.'
In an earlier article, 'Subjecting terror suspects to triple jeopardy is an affront to justice', I warned the director of public prosecutions, Keir Starmer QC, not to go ahead with another trial, acknowledging the extraordinary character of a third jury trial. The trial went ahead, with Mr Starmer explaining: 'One way or the other, I have concluded that, in this exceptional case, it is in the public interest to seek a further retrial.'
The DPP, famous for his libertarian views, ignored that warning and secured the conviction of the young Muslims, including Waheed Zaman, a young student of London Metropolitan University who had been radicalised.
It is an extraordinary tribute to the quality of the British legal system that a universally hated person like Abu Qatada '“ in real life, Mr Othman '“ who has no regard for the safety of the citizens of this land, cannot be deported to a country where he fears a conviction based on evidence obtained by torture. He should be given treatment similar to the one given to Waheed Zaman, that is, prosecuted in this country following the due process of law.
Extradition to the US
A critical test, set out in the 2003 extradition treaty with the US is that the British request must include 'such information as would provide a reasonable basis to believe that the person sought committed the offence for which extradition is requested.' Inconsistently, this requirement does not apply to requests submitted by the US to the UK.
Once a British suspect is arrested for extradition, he/she can challenge the lawfulness of the request. If the request is ruled lawful, the secretary of state takes the final decision after considering human rights issues '“ such as whether the suspect could be denied a fair trial or face inhumane treatment.
It is easier for the US to seek the extradition of someone from the UK because the US would no longer need to provide a prima facie case to British courts '“ proving the case on the face of available evidence.
The parliamentary joint committee on human rights appreciated the concerns about the existing extradition arrangements between UK and US. It said in its June 2011 report on extradition that the burden of proof for extradition should be increased.
'Guantanamo Bay, the failed extradition of Lofti Raissi and US contempt for the International Criminal Court make the decision to remove UK safeguards all the more alarming', a Statewatch report said at the time the treaty was signed.
Mr Chris Tappin, a 65-year-old retired businessman and Kent Golf Club president resisted his extradition from the UK to the US. After exhausting UK remedies, he applied to the Strasbourg court but his application was refused. Like many of his supporters, he was disgusted by this decision. 'Abu Qatada has more rights than me!', he said.
Philip Davies MP expressed his rage about Abu Qatada in the strongest terms in the House of Commons on 7 February 2012. 'Does the home secretary not accept that the British government is now in a rather pathetic, humiliating situation? A proud, sovereign country cannot deport foreign terrorists. It is no good the home secretary simply huffing and puffing about the decision. What the British public wants to know is this: if we cannot secure the reforms that we need from the European Court of Human Rights, will we withdraw from the European convention? In the absence of that commitment, the home secretary will simply be spitting in the wind,' he said.
Rejecting the proposal of David Ruffley MP to ignore the ruling of the court, the home secretary refrained from putting a stain on the UK's track record of complying with judgments of the Strasbourg court.
I share Mr Tappin's disappointment. However I do not agree with him that he should not have had a right of appeal to the European court. He and his family must have been living in good hope when they were waiting for the outcome of their application to the Strasbourg court.
The Qatada judgment is very detailed and to many people it will be a complex read but it is solidly crafted. The court has referred to substantial material and has virtually left no argument unexplored and its judgment should be spared unfounded criticism.