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Yesterday (13 November 2012), risking the considerable wrath of his readership, the conservative commentator Peter Oborne made a brief but principled comment on his Daily Telegraph blog.
"I'm completely baffled by the volumes of outrage, the outpourings of fury, which have greeted the decision reached by Mr Justice Mitting to keep Abu Qatada in this country," he wrote.
"It's worth bearing in mind that Judge Mitting is not known as a soft judge. He has a reputation at the Bar of being a seriously tough judge.
"All he has done is to judge the Qatada case on its merits. The great virtue of the rule of law in this country is that it protects unpopular individuals, just as much as the ordinary law abiding citizen."
A careful and fair reading of the judgement would surely concur. To recognise this is in no way to sympathise with Mohammed Othman (Abu Qatada) and his agenda. It is, as Jim Duffy (from One Crown Office Row) says in an article bearing this title, about "preventing a flagrant denial of justice".
Abu Qatada was convicted of terror charges in Jordan in his absence in 1999. So far he has successfully resisted being sent back to the country because of the "substantial" risk of an unfair trial.
In October 2009, Amnesty International, Human Rights Watch and Justice submitted a joint intervention to the European Court raising concerns about the practice of relying on diplomatic assurances to justify transfer of individuals to countries where they would face a real risk of being subjected to torture or other ill-treatment.
On the basis of Special Immigration Appeals Commission’s findings, Judge Mitting, sitting with Judge Peter Lane and Dame Denise Holt, found that there was a real risk that evidence obtained from two witnesses had been obtained by torture.
As the admirable and lawyerly UK Human Rights blog (http://ukhumanrightsblog.com/) noted, based on SIAC’s summary of the judgement:
SIAC set out two critical questions to determine whether there was a real risk that these statements would be admitted in the case against Qatada in Jordan:
1) Irrespective of the means by which they were obtained, are these statements now admissible at all under the Jordanian Code of Criminal Practice?
2) If they are, is there a real risk they will be admitted even though there is a ‘real risk’ that they were obtained by torture?
The first question was not to be conclusively answered, "Until and unless the [Jordanian] court of Cassation gives us an authoritative ruling on the question, it must remain open."
The second question was considered in detail in paragraphs 68-73. SIAC concluded: "... The only means of eliminating a real risk that statements which may well have been obtained by torture will be admitted probatively at the appellant’s retrial would be for the burden of proving, to a high standard, that they were not, to be placed upon the prosecutor. Anything else gives rise to a real risk that they will be." [para 73]
The standards to be met are reasonable, just and clearly laid out. But they were not made clear in any of the television or radio news reports I heard yesterday. Sadly, the BBC joined others in offering a very one-sided account of the situation, effectively presenting the foot-stamping stance of the Prime Minister and those who wish to attack current human rights law as the "common sense" view. There was no interview with defence counsel representatives (Edward Fitzgerald QC of Doughty Street Chambers, and Birnberg Peirce & Partners Solicitors). There was no substantial independent legal commentary.
It was mentioned that the UK government has failed to bring a legal prosecution against Abu Qatada. This was put down to "lack of evidence". In fact, the evidence is there, reputedly; but it is intercept evidence which, contrary to the recommendations of most civil rights bodies, cannot be scrutinised in court at the moment.
It is, in other words, within the power of the government to amend the situation to make a prosecution possible, just as it is within the power of the Jordanian state to fulfil legal requirements so that Abu Qatada can be tried fairly there, having already given sufficient guarantee that the appellant will be protected against the risk of ill-treatment.
Instead the government behaves as if the problem is unreasonable human rights law, the ECHR and difficult judges, and the hysteria whipped up by large sections of the media feeds this prejudice. The consequences of this could be extremely dangerous for the rights and freedoms of us all.
* The full 52-page judgement: SIAC, Appeal No SC/15/2005 (*.PDF Adobe Acrobat document): http://www.siac.tribunals.gov.uk/Documents/Othman_substantive_judgment.pdf
* Jim Duffy, 'Abu Qatada: Preventing a flagrant denial of justice' - http://ukhumanrightsblog.com/2012/11/13/abu-qatada-preventing-a-flagrant...
* 'Questions continue as European Court stops deportation of Abu Qatada', Ekklesia, 18 January 2012 - http://www.ekklesia.co.uk/node/16106
* More background and commentary from the UK Human Rights blog, written by members of One Crown Office Row barristers' chambers:
© Simon Barrow is co-director of Ekklesia.Tweet