The Abu Qatada saga is proving to be a very expensive and very embarrassing headache for the British Government. Following his narrow victory in Strasbourg in January, in which he succeeded only under Article 6, many assumed that the Government would secure the necessary concessions from the Jordanian Government that would enable him to be returned. Instead, yesterday he was back on the streets of London rather than the streets of Amman, on bail, after SIAC ruled on Monday that any return to Jordan would still violate Article 6.

Abu Qatada’s victory has left the Home Secretary—who rashly stated in April that Abu Qatada would soon be on a plane back to Jordan—with egg on her face. The Government has said it will appeal SIAC’s ruling and the Prime Minister has lamented that he believed his Government had obtained the “right assurances” from the Jordanian Government.

Apart from the cost and the embarrassment, the saga is of great importance in constitutional terms because it poses one of the most significant threats to the UK’s human rights legislation, prompting calls for scrapping the Human Rights Act and re-defining our relationship with the Strasbourg Court.

Although such calls have been noisily repeated since Monday, SIAC did not decide any issue of principle, nor indeed did the case turn on assurances given by the Jordanian Government (no matter what the Government says).

The point at issue was very narrow. There was no dispute as to the legal test to be applied: it was agreed that the Commission should ask itself whether there is a real risk that evidence derived from torture would be used upon retrial of Abu Qatada in Jordan (It will be recalled that Abu Qatada was convicted in his absence of involvement in a series of explosions in 1998 and a foiled conspiracy in 2000 both against Western and Israeli targets in Jordan). There was no dispute that there would be a retrial in Jordan.  There was no dispute that there was a real risk that the statements made by two individuals who had been co-defendants in the proceedings had been given under torture. The question purely and simply boiled down to whether there was a real risk that those statements would be admitted in the retrial.

Thus, one of the most important and high profile human rights cases turned entirely on one of the most arcane issues of recent years: a question of Jordanian criminal procedure on the admissibility of evidence of co-defendants in the Jordanian State Security Court.

Questions of foreign law are becoming increasingly prevalent in public law cases. Foreign law issues have in the past mainly been confined to private law disputes, where contract or tort actions are pursued in the UK courts but where foreign law applies. UK courts and tribunals are perfectly comfortable examining foreign law and there are very well established ways of doing it.

SIAC considered expert evidence from two Jordanian lawyers. The UK Government relied upon a lawyer who used to practice in the State Security Court. Abu Qatada’s legal team relied upon expert evidence from the most senior serving member of the State Security Court. The court accepted the evidence of the latter.

There were two material points. On point one, SIAC held that the two former co-defendants could not give fresh evidence under oath in the State Security Court but that their previous statements to the Jordanain prosecutor could be adduced under the Article 148 of the Jordanian Code of Criminal Procedure in the retrial (“CCP”) (These are the statements which it is said were made under torture.)

On the second point, SIAC held that the prevailing approach of the State Security Court to exclusion of evidence which is claimed to be the product of torture is to require individuals to prove it. An amendment to the Constitution in 2011 prohibiting reliance on evidence obtained by torture had not altered this approach (it would, SIAC held, probably require a decision of the Court of Cassation for the approach to change). There was thus at least a real risk that the statements would be admitted because the passage of time meant the burden of proof would be “difficult to discharge” and allegations of torture had previously been rejected, despite significant evidence to the contrary.

On this basis SIAC ruled against the Home Secretary, and then released Abu Qatada on bail given the absence of any reasonable prospect of imminent removal.

Questions are being asked. The most immediate is: can the Government appeal? The answer is: with great difficulty. In English law questions of foreign law are treated as questions of fact. Appeal from SIAC lies only on questions of law. Not only was SIAC rigorous in its approach to the foreign law issue, the Government can hardly have been confident about its expert evidence. As SIAC recorded, the arguments advanced by the Government’s expert had not been included in his evidence to the Strasbourg Court and the opinions of his on which the Government relied had been “formed relatively recently”, i.e. conveniently since Strasbourg’s ruling. The Government’s expert also acknowledged that other defence lawyers that he had consulted did not share his views, and they were untested and not representative of past practice. By contrast Abu Qatada’s expert, apart from being better qualified and well regarded by the British Government, had consistently propounded his views as well as, remarkably, having provided “unstinting assistance” to the British Government since the Strasbourg ruling.

It should also be emphasised that the only other issue in the case was an assessment of risk based on the expert evidence, and questions of risk are also questions of fact.

In short, whilst it is not inconceivable that a question of law might be found here, the judgment provides thin gruel for the Government’s lawyers. SIAC took a conventional approach to making findings of foreign law on which the case turned.

The next question is: how can Abu Qatada be returned? The answer to this question is that it would require an amendment to the CCP to alter the burden of proof. The Government is not in a particularly strong position to press for this given that the position of Jordanian law as it stands is not significantly different from the approach contended for by the Government and accepted by the House of Lords in A (No 2) [2006] 2 AC 221, that is to say, proof of torture on balance of probabilities. The only other options appear to be an undertaking by the prosecutor not to rely on the evidence of the two former co-defendants or not to re-try Abu Qatada. Both these options would also require amendments to the CCP and may be unrealistic.

Given the limited options, the next question is: is there a problem with human rights law? There is no doubt that in this exceptional case the Government is stuck between a rock and a hard place. Some may question Strasbourg’s decision in Abu Qatada v UK that the use of evidence obtained by torture automatically constitutes a flagrant denial of justice in a foreign state irrespective of the significance of the evidence to the trial and the legal protections in the country to ensure that such evidence is excluded. Prior to Abu Qatada v UK, the Strasbourg Court’s position was that the use of such evidence “raises serious issues as to the fairness of the proceedings”. The further step taken in Abu Qatada v UK, that its use is inevitably a flagrant denial of justice, however it comes about, results in the paradox that a person has a right in this country not to be subject to a trial in a foreign state in which there is a real risk that evidence deriving from torture will be deployed; whereas a person in this country has no equivalent right in respect of a trial in this country, that is to say, it is not the law here that a hearing is automatically unfair if there is a real risk that evidence obtained by torture would be admitted. The fact that the Strasbourg jurisprudence may be moving towards recognising the latter right does little to reduce the oddity, not least because it still gives rise to the question of how ‘domestic’ and ‘foreign’ rights could be the same.

But an exploration of the pros and cons of the Strasbourg position would require a much more thorough analysis than can be given here. The Strasbourg jurisprudence is aimed at real and practical problems in respect of states in which torture is a deeply ingrained part of the system, and known to be so by the UK and other Contracting States. From SIAC’s account of the evidence against Abu Qatada in Jordan it seems doubtful that even a higher threshold would much assist the Government in his case. The confessions of the two former co-defendants would, it seems, form a central part of the case against Abu Qatada and there are very serious question marks indeed over those statements, which, nonetheless, are probably now beyond resolution one way or the other. Insofar as Abu Qatada remains at risk of a trial in which those statements are deployed as the case against him it is difficult to object to a human rights law which refuses to deport him. Objecting, nonetheless, is what many people are doing.

Tom Hickman is a barrister at Blackstone Chambers and a Reader in Law at University College London.

Suggested citation: T. Hickman, ‘The Return of Abu Qatada (to the streets of London)’,  UK Const. L. Blog (14th November 2012) (available at http://ukconstitutionallaw.org).