Omar Othman or Abu Qatada (‘The Palestinian’) is destined to hit the headlines at least a couple more times. Once will be when the Jordanian parliament ratifies a newly negotiated mutual legal assistance treaty with the UK (said to be imminent). And then again when he departs of his own free will after it has come into force, as promised by his counsel. This will be portrayed by the home secretary as the successful negotiation of a series of obstructive court judgments. Lawyers, collectively and individually, should recognise it for what it really is: a triumph for human rights.
Othman’s fate is to present an almost pantomime image of an Islamist fanatic. He gets demonised as the ‘worst of the worst’. His views may well be extreme and repugnant though it is difficult, if so, to see why he has not been charged with any criminal offence. Danny Friedman, his QC, observed to the court that ‘he has been deprived of his liberty more than any other non-convicted person in British history’. If that is so, he passes some impressive Tudor precedents.
Nevertheless, no judge has dissented from the Special Immigration Appeals Commission’s view that Othman is, and remains, ‘a truly dangerous individual’. And he certainly has not helped his own case. Mr Justice Mitting granted him bail last year on a long list of conditions which included prohibition of the use or possession of mobile phones or jihadist material. In such circumstances, the recovery of precisely such content on a USB stick and six mobile phones from his home, albeit allegedly belonging to other members of his family, was unfortunate. Whatever the circumstances, as Mr Justice Irwin – no doubt, rightly – remarked: ‘It was the appellant’s obligation to understand the conditions of bail and ensure they were adhered to.’ The decision to revoke bail was predictable.
Othman is not a British citizen. In principle, the UK has no responsibility for him, save only that he has claimed asylum here. That gives us a duty not to send him back to any state where there is a substantial risk that he will be tortured. It might be noted that this is a requirement not only of European human rights law but also that of the United Nations. The European Court of Human Rights extended this prohibition against torture in his case to include states that will torture other people to convict someone who is returned. It is difficult to argue that this is not logical. The point is to avoid collusion with any state that uses torture.
And there you have the conflict between the undoubted responsibility of the state to secure the safety of its citizens and the duty to respect the universal norms of human rights. The US solves this dilemma by sleights of hand such as dodgy definitions of torture; the creation of dubious categories of people without rights, such as enemy combatants; extra-judicial rendition; and the creation of offshore, out-of-jurisdiction prisons such as Guantanamo and Bagram. The European Convention on Human Rights (at least for the time being) – and, to be fair, a greater respect for the rule of law (hopefully to continue in any event) – forbids such easy solutions to the UK.
Home secretaries from the ill-fated Charles Clarke onward have tried to square the circle by memoranda of understanding. These are worded on the lines that ‘without prejudice to alleged practice in other cases (which is not admitted) and general reputation, including the published findings of such bodies as the UK Foreign Office and Human Rights Watch (similarly denied), the state in question agrees to forbear to torture this particular individual’. Jordan’s versions of these were actually accepted by the European Court of Human Rights in relation to Othman, notwithstanding the purist argument that the very existence of such an agreement suggests that there might be doubts as to whether it should be believed.
Theresa May’s treaty of mutual legal assistance will specifically protect the right of fair trial in terms taken almost verbatim from article 6 of the European Convention. In addition, the treaty specifically requires a court to be satisfied ‘to a high standard’ that a statement is voluntary where allegations are made to the contrary. That standard rises to ‘beyond reasonable doubt’ where, as in Othman’s case, another court has already found that there is a ‘real risk’ that the statement may have been coerced.
We have a classic win-win. If all goes well, Othman will voluntarily leave the UK. Jordan will uphold universal standards against torture, at least in this and similar cases. But, will May proclaim this as a victory for human rights? Unlikely, given her appeal to populist opposition to them in asserting her executive powers.
Roger Smith is visiting professor at London South Bank University and former director of human rights group Justice