Releasing the 'truly dangerous' Abu Qatada on bail raises fundamental questions about Britain's approach to confronting terrorism.
Abu Qatada is a 'truly dangerous individual', said Mr Justice Collins in 2004. The Jordanian was 'at the centre in the United Kingdom of terrorist activities associated with Al-Qaeda'. His beliefs were a 'perversion of Islam'.
The judge was explaining why SIAC, a special court that deals with national security cases, was upholding Abu Qatada's detention under the Anti-terrorism, Crime and Security Act 2001.
At the end of 2004, the law lords decided in the famous 'Belmarsh' judgment that indefinite detention of foreign suspected terrorists in prisons such as Belmarsh discriminated against British terror suspects and was therefore incompatible with the human rights convention. Abu Qatada was released on conditional bail and his activities were subsequently restricted under a 'gag-and-tag' control order.
In August 2005, Home Secretary Charles Clarke decided that Abu Qatada should be deported to Jordan in the interests of national security. He was then detained pending deportation.
Abu Qatada’s appeal against Clarke’s decision was dismissed by SIAC in February 2007. Mr Justice Ouseley upheld the home secretary’s assessment that Abu Qatada was ‘a significant international terrorist’ who posed a ‘continuing threat to national security’.
Last month, Abu Qatada won his appeal against that decision. Lord Justice Buxton, speaking for himself, the Master of the Rolls and Lady Justice Smith, found that deportation would amount to a breach of the terrorist’s human rights. As I noted on this page four weeks ago, Lord Justice Buxton coyly omitted all mention of Abu Qatada’s nom de guerre from the ruling, referring to him instead as ‘Mr Othman’.
The home secretary is seeking permission to appeal to the House of Lords against that decision. In the meantime, Abu Qatada has been granted bail by SIAC.
Precisely why Mr Justice Mitting agreed last Thursday to bail a ‘significant international terrorist’ was not clear when the Gazette went to press, since an approved transcript of the judge’s extempore ruling had not then been released. Although SIAC sat in public, there were no reporters at the hearing. SIAC had hardly gone out of its way to alert the media when it listed the bail application on its website, referring to Abu Qatada only by the initial ‘O’.
However, I expect that we shall find the judge thought that nearly three years was about as long as the courts could properly detain someone unconvicted of any crime – particularly as an appeal to the Lords would not be heard for many months. And we are told by the Home Office that there are to be stringent conditions on Abu Qatada, such as a 22-hour curfew and restrictions on whom he may meet.
But SIAC would never have granted bail if its earlier ruling had not been overturned on appeal. Writing in the Gazette last week, Sir Geoffrey Bindman takes me to task for implying that the law lords should find a way of reversing the Court of Appeal’s decision and reinstating Abu Qatada’s deportation. The solicitor says it is ‘alarmist and fanciful’ for me to suggest that the world’s terrorists would flock to Britain if we allowed Abu Qatada to remain here.
I stand by my comments. As SIAC found last year, Abu Qatada’s temporary release in 2005 ‘was greeted with joy by his supporters as evidence that the government had gone soft and had been outwitted by human rights activists’. Soon, we can expect to see photographs of him walking the streets of London. What kind of message will that send his followers?
According to SIAC, Abu Qatada is an Islamist extremist who advocates the use of violence to replace the Jordanian monarchy with an Islamic regime. Jordanian courts have convicted him in his absence for explosives and terrorist offences. He would face retrials on these charges if returned there. The problem identified by the appeal court was that SIAC had found a ‘high probability’ that the Jordanian courts would rely on evidence that ‘may very well’ have been obtained through torture – and that this would be of ‘considerable, perhaps decisive importance against him’.
As I said here last month, the prohibition on torture must remain absolute. And, as the appeal court explained, evidence based on torture must be excluded not just because of its likely unreliability but rather because using the fruits of torture would legitimise and encourage its practice.
But Jordanian law does not permit the use of evidence found to have been obtained involuntarily. SIAC was prepared to give Jordan the benefit of the doubt on this and so should we. It would help if the Jordanians were prepared to expand on the ‘memorandum of understanding’ they signed in 2005 by confirming that they would not rely on evidence obtained unlawfully. But there comes a time when our judges should stop trying to police other countries’ courts.
There are broader principles at stake here. Last year, the House of Lords Select Committee on the Constitution took evidence from Clarke, by then a former home secretary. Senior judges had to change their attitude, he said. ‘It fuels the dangerously confused and ill-informed debate which challenges Britain’s adherence to the European Convention on Human Rights. It is now time for the senior judiciary to engage in a serious and considered debate about how best legally to confront terrorism in modern circumstances.’
This is a theme to which I hope to return in future columns.
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