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Abu Qatada and reform of the European Convention on Human Rights

15 June 2012 

Daniel Canning

Daniel Canning, GDL student, The College of Law Birmingham

This article explains the legal issues in the case involving the deportation of Abu Qatada, and the facts behind some other recently-decided cases made under the European Convention on Human Rights (the ‘convention’/ ECHR).

Qatada’s deportation so far

Arriving in the UK in 1993, Omar Othman, otherwise known as Abu Qatada, made an application for asylum having claimed to have suffered from torture in his home country of Jordan. The application was accepted and Qatada was granted refugee status. In 2000, a court in Jordan convicted him (in his absence) of conspiracy to commit terrorist attacks. After having been held in custody in the UK under terrorism legislation and released, Abu Qatada was again detained in 2005, with a view to deporting him to face further charges in Jordan. It is only now in 2012 that Abu Qatada may finally be deported. 

Why so much delay?

The process of deportation has followed a drawn out appeal process from an immigration tribunal through to the House of Lords and the European Court of Human Rights (ECtHR). The grounds for deporting Abu Qatada are founded on the Anti-terrorism, Crime and Security Act 2001. Under this legislation, the Secretary of State found that Abu Qatada was no longer subject to protection under the UN Refugee Convention and that his removal from the UK would be conducive to the public good.

The initial deportation proceedings were brought to a halt following the decision by the Court of Appeal in 2008 that were Abu Qatada to be deported to Jordan he would be subject to criminal proceedings, and it was likely that at trial the evidence against him would have been obtained by torture. In 2009, the ECtHR awarded Abu Qatada £2,500 in compensation as his prolonged detention without trial under anti-terror legislation violated his rights under the convention. On appeal in 2010, the House of Lords found in favour of the government and decided that he could be deported because he would receive a fair trial – the Jordanian government had confirmed that Qatada was not at risk from torture personally, and evidence obtained by torture would not be used against him.

In early 2012, the ECtHR heard Abu Qatada’s appeal against this decision. In a judgment delivered on 17 January, the ECtHR held that whilst Qatada wouldn’t be tortured, he would not receive a fair trial in Jordan because:

• it was likely that evidence obtained through torture would be used against him

• the UK government would also have to obtain assurances from the Jordanian government that Qatada would receive a fair trial were he to be deported

Following this decision, Qatada was released on bail in February, however the bail conditions set are some of the most stringent available under English law. Qatada was subject to a 22 hour curfew, electronic tagging and banned from using either the internet or a mobile phone, amongst other measures.

The time limit for appeal

Appeals against a decision of the ECtHR are made to the Grand Chamber, where the decision is heard by all of the judges. Under Article 43 of the convention, the time limit for any appeal is three months from the date on which the original judgment was made by the ECtHR. If no such request is made then the judgment becomes final.

The deportation order in April 2012

Having received all the necessary assurances from Jordan, and having been advised that the time limit for appeal had expired at midnight on 16 April 2012, the Home Secretary stated on 17 April that Qatada could now be deported. However, her advisors appear to have miscalculated the time limit, leading to much embarrassment when Qatada’s lawyers lodged an appeal on the very same day, at the last minute. In May, the ECtHR decided that Abu Qatada’s appeal was submitted in time, but the Grand Chamber declined to hear his appeal, leaving the UK free to pursue deportation. At the time of writing (May 2012), the UK appeal process is still ongoing.

Delays caused by human rights arguments

The Abu Qatada case is not the only one where interpretation of the ECHR by national courts and appeals to the ECtHR have complicated and drawn out proceedings. Under the Representation of the People Act 1989, prisoners are banned from voting in both parliamentary and local elections. In 2001, whilst serving a sentence for manslaughter, John Hirst lodged an appeal with the ECtHR against this ban. In 2004, the court returned a unanimous verdict that such a ban infringed Mr Hirst’s human rights under Article 3 of Protocol 1 of the ECHR, the right to vote in regular, free and fair elections. Ever since this ruling, the UK has remained in contravention of the convention and the decision of the ECtHR, meaning that the UK can be found liable to compensate prisoners who’s right to vote has been breached. Despite this, and warnings from the ECtHR, parliament has voted to keep the ban in place, in flagrant breach of the ECHR.

Judicial inexperience of ECtHR judges

Despite the importance and impact rulings of the ECtHR can have, very few of the judges themselves have any prior judicial experience before taking their roles within the court. The current president of the court, British judge Sir Nicolas Bratza, has previous judicial experience, but only from a brief period in 1993 as a Recorder in the Crown Court, just before he was appointed to the European Commission of Human Rights, which merged with the ECtHR in 1998. At this point, Sir Nicolas was appointed as a High Court judge to satisfy the eligibility criteria for him to be appointed to the ECtHR. Sir Nicholas himself has admitted that some of the court’s best judges are former academics who have been ‘parachuted’ into their roles.

In contrast, the current judges in the UK’s Supreme Court, with one exception, have all held senior judicial roles. Even the exception, Lord Sumption, has had extensive experience in presenting arguments in appeals as a QC and served as a part-time judge. And yet, the relatively inexperienced judges of the ECtHR are capable of hearing appeals from the Supreme Court and overruling them.

Biased coverage

Media reports and politically biased accounts of the way that domestic courts have applied human rights following the enactment of the Human Rights Act 1998 (HRA) have played a major part in creating a negative perception of the convention. Let’s look at the facts behind two particularly high profile cases…

‘Cat-gate’

In October 2011, the Home Secretary Theresa May claimed that an illegal immigrant avoided deportation on the grounds that he would have to leave behind a pet cat, in breach of his right to a family life. Mrs May called for the repeal of the HRA so that domestic courts cannot apply these rights to the extent that they have. Mrs May was swiftly accused of misrepresenting the HRA by the Justice Secretary, Ken Clarke. This embarrassing ‘cat-gate’ arguably brought both the HRA and ECHR into disrepute.

In fact, the case in question was heard before the Immigration & Asylum tribunal in 2008, in which a Bolivian student tried to stay in the UK after his visa expired. The student claimed to have a permanent relationship with a UK citizen, and ownership of the cat was merely evidence of this relationship. There was no suggestion that the cat on its own was the reason for allowing the student to remain. Indeed, the real reason why (on appeal) the Upper-Tier Tribunal later decided that the student could remain was that the Home Office had disregarded its own rules and guidelines relating to deportation of unmarried couples who had been together for more than two years.

The hit and run driver who avoided deportation

Another case which has been exaggerated by the media is that of failed asylum seeker Aso Mohammad Ibrahim, who was sentenced for killing a young girl, whilst driving without a licence. In 2003, he was prosecuted for making off from the scene of the incident and for driving without a licence, and was sentenced to four months imprisonment. Ibrahim’s deportation was proposed in 2008, but an immigration tribunal decided to allow him to remain in the UK. The tribunal found that deportation would infringe his Article 8 right to a family life, since he now had two children, born after his release from prison.

Press reports propagated a view that Ibrahim received protection of rights under the HRA and the convention. In fact, the ECHR did not prevent Ibrahim from being deported. The Upper Tribunal decided that he could have been deported after his release from prison, despite not being convicted of a more serious offence which may have been justified from the consequences of his actions. It took five years for the Home Office and Border Agency to seek his deportation, and it was during this time that the children were born and Ibrahim became settled in the UK. That delay, coupled with the government’s failure to present evidence of Ibrahim’s previous convictions, were the reasons why he was allowed to stay. In fact, the judgment went so far as to state that the decision would have been different if an attempt to deport Ibrahim had been made following his release from prison in 2003, supported by further evidence of his previous convictions.

What do people say needs to change?

In the wake of the Abu Qatada situation there have been calls for changes to the manner in which human rights are protected in the UK. Some say that the court should be reformed to reduce a massive backlog of cases and allow national courts greater autonomy to decide how human rights should be implemented at a national level. The UK government has tried to press for such changes during its chairmanship of the Council of Europe since November 2011.

Another suggestion is to repeal the UK’s HRA. This would mean UK courts would not have to consider convention rights when making decisions, nor would an individual be able to enforce these rights in the national courts. We would revert to the position that existed before the enactment of the HRA, whereby anyone wishing to enforce their ECHR rights would have to go through all of the domestic appeals process before taking their case to the ECtHR in Strasbourg. This could prove a convoluted and costly process.

Some politicians and media have suggested that the UK should completely pull out of from the convention. This would mean that the national courts would not have to consider the rights and the Supreme Court would be the final court of appeal. Alongside this, one of the aims of the current government is to put together a UK Bill of Rights which would set out the rights people in the UK could expect and enforce. A Bill of Rights Commission is currently working on such a Bill, however it has not been plain sailing, and in March 2012 the commissioner resigned following division on how a UK Bill of Rights would be constructed and what its constitutional effects would be.

What I think needs to change

In my opinion, the main issue with the convention is that it is misunderstood, misreported and misused. The wider public in the UK have only developed a negative view of the ECHR because of the way it is reported in the media. The reporting of giving prisoners the right to vote and ‘cat-gate’ are just two examples among many. Another issue is reference to the ECHR when situations have actually been brought about by maladministration and incompetence, such as in the case of Aso Mohammed Ibrahim, or by national policy such as in ‘cat-gate’.

However, I do believe that the ECtHR is in need of reform – both the composition of the court and its processes need to be changed to reduce the number of petty claims which have to be disposed of. The court also needs to avoid the perception that it is interfering unnecessarily with the decisions of national courts. More judges with extensive prior judicial experience should be appointed to the court, to help justify its power to make decisions which overrule national courts.

Repeal of the HRA or derogation from the ECHR are simply not viable considerations in my opinion. If either were to take place, the worldwide position and reputation of the UK would be seriously damaged. How could British prime ministers talk of human rights abuses in other countries when it would seem that the same rights were not protected in the UK? And while there is talk of a UK Bill of Rights, it will be a long time before that becomes a viable possibility.  

Daniel Canning - biography

My study of law began during sixth form, taking A-level law, however I went on to study Biological Sciences at the University of Birmingham. Whilst completing my degree I decided that I wanted to follow a career in law, a decision which was helped by attending law fairs and other events at university. Early in 2011, I began working for HM Courts & Tribunals Service which I have continued to do whilst studying the GDL. Through my work, I have been able to see the law in action from simple administrative matters through to tribunal hearings, further pushing me to develop a career in law.



 

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