Deportation – Decision to deport – Claimant being regarded as high-risk terrorist
Othman (aka Abu Qatada) v Secretary of State for the Home Department: Court of Appeal, Civil Division: 27 March 2013
The appellant was regarded by the UK as an exceptionally high-risk terrorist. The respondent secretary of state was seeking to deport the claimant to Jordan under section 5(1) of the Immigration Act 1971. The appellant had been twice convicted in his absence in Jordan of terrorist offences, and he faced a retrial in Jordan if returned. In regard to the convictions, the appellant maintained that they had been based upon the statements of co-defendants which were obtained by torture (the impugned statements).
In 2012, the European Court of Human Rights (ECtHR) upheld the appellant's challenge against the lawfulness of the secretary of state's proposed deportation (see Othman (Abu Qatada) United Kingdom (App. No. 8139/09)  ECtHR 8139/09). The ECtHR held that there was a real risk that the appellant's retrial would amount to a flagrant denial of justice if he were deported to Jordan. Thereafter, extensive discussions took place between the UK and Jordanian governments, which resulted in the latter making it clear that it would do everything in its power to ensure that a retrial was fair. On that basis, the secretary of state refused to revoke her earlier deportation order. The appellant appealed to the Special Immigration Appeals Commission (the SIAC).
Before the SIAC, the secretary of state submitted that there was no longer a real risk of a flagrant denial of justice if the claimant were to face a retrial in Jordan. The SIAC identified that the issue for determination was whether, under Jordanian law, there was a real risk that the impugned statements would be admitted as probative of the appellant's guilt at his retrial. The SIAC analysed Jordanian law, including the Jordanian Code of Criminal Procedures and significant amendments to the Jordanian Constitution. In regard to the Jordanian law, the secretary of state submitted, inter alia, that, because of the number of possible outcomes of a retrial, the risk that the impugned statements would be admitted probatively was small.
The SIAC acknowledged that there were a number of possible outcomes, but concluded that the secretary of state had not established that, on a retrial, there was no real risk that the impugned statements would be admitted probatively against the appellant, and that, unless and until a change was made to the Code of Criminal Procedures and/or authorative rulings were made by the Jordanian courts which established that statements made to a public prosecutor by accomplices who were no longer subject to criminal proceedings could not be admitted probatively against a returning fugitive, and/or that it was for the prosecutor to 'prove to a high standard' that the statements were not procured by torture, then a real risk would remain. Accordingly, the SIAC allowed the appellant's appeal. The secretary of state appealed.
The secretary of state submitted, inter alia, that: (i) the SIAC had erred in finding that there would be a real risk of a flagrant denial of justice on transfer to Jordan unless it could be established that, under Jordanian law, the prosecutor would bear the burden of proving to a high standard that the impugned statements would not be admitted in evidence at the retrial, since there was no authority for the proposition that the burden of proof was on the prosecutor in cases concerning evidence which was alleged to have been obtained by torture; and (ii) the SIAC had failed to consider the question of whether there was a real risk of a flagrant denial of justice in the round, in that the SIAC had failed to weigh up the level of risk that the impugned statements had been obtained by torture and the level of risk that they would be admitted in evidence; the SIAC had failed to consider those two questions of law and consider whether the combination of those two risks was sufficient to constitute a real risk of a flagrant denial of justice. Further, the SIAC's approach to the possible outcomes suggested by the secretary of state had been impermissibly narrow. The appeal would be dismissed.
(1) If the SIAC had intended to have said that, as a matter of principle, the burden of proof to a high standard had to be on the prosecutor in all cases, it would have said so. Instead, the SIAC had explained why, on the facts of the instant case, the only way of eliminating a real risk that the impugned statements would be admitted as evidence at the retrial would have been to place the burden of proof on the prosecutor to a high standard to show that the impugned statements would not be admitted. That had been an assessment of the facts that the SIAC had been entitled to make. It was impossible to hold that that had been irrational. There had been ample material on which the SIAC could quite properly have reached that conclusion and the SIAC had been entitled to hold that none of the developments that had taken place since the ECHR's decision would have overcome the difficulties that the commission had found to have existed (see ,  of the judgment).
(2) The focus of the case before the SIAC had been on whether there was a real risk that the impugned statements would be adduced in evidence at a retrial. In light of that, it had been common ground before the SIAC that, if it were shown that there was a real risk that the statements would be admitted as evidence, it would follow that there was a real risk that there would be a flagrant denial of justice. In adopting that approach, the SIAC had made no error of law on the facts of the instant case. Further, the SIAC had not failed to have regard to the combined effect of the two possible ways in which the evidence might properly have been excluded under Jordanian law.
Since the SIAC had decided that the relevant law in relation to both matters was so uncertain, the only conclusion it could properly have reached had been that there was a real risk that evidence obtained by torture would be admitted. In any event, the SIAC had not approached the question of whether there was a real risk that the impugned statements would be admitted in a narrow way. The SIAC had dealt fully with all the matters which realistically bore on the question of whether the impugned statements would be adduced in evidence. At the forefront of those were the two critical questions of Jordanian law and there was no challenge to the way in which the SIAC had dealt with them. Also, the SIAC had dealt with the possible outcomes suggested by the secretary of state in so far as there was an evidential basis for having done so. The SIAC could not be criticised for having failed to deal explicitly with mere speculative possibilities (see , , -,  of the judgment).Accordingly, the SIAC had not committed any legal errors (see  of the judgment).
Edward Fitzgerald QC and Danny Friedman (instructed by Birnberg Peirce & Partners) for the appellant; James Eadie QC, Robin Tam QC, Tim Eicke QC and Jessica Wells (instructed by the Treasury Solicitor) for the secretary of state.