Abu Qatada - Playing a dangerous game with the Rule of Law

The SIAC (Special Immigration Appeal Commission) judgment denying bail to Abu Qatada (a.k.a. Mohammed Othman) has just been released. It makes for interesting/worrying reading.

This issue

In determining whether or not to grant bail, His Honour Judge Mitting also had to consider whether his continued detention was lawful. The submission before the tribunal was that, by reason of the length of time he had been detained his continued detention would nolonger be lawful and amounted to a deprivation of liberty within the meaning of Art 5 ECHR.

The background


The judge started by outlining the lengthy and well-reported history of Qatada's detention, leading to the fixing of what it has been assumed is likely to be his final appeal against extradition to Jordan, on the 8th October. Significantly:

"[4]....by then [he]will have achieved a lamentable record. He will have been deprived of liberty, for the most part actually detained, without charge for some seven years and three months." (emphasis added)


Since his last SIAC hearing in February and his appeal to the European Court of Human Rights, HHJ Mitting noted the progress that had been made in obtaining diplomatic assurances from Jordan although, Edward Fitzgerald QC submitted on behalf of Qatada that:

"[5]...what has been done is less than meets the eye, that some of it, in any event, is not prompted by discussions between the British Government and the Kingdom of Jordan, but by the independent actions of the Kingdom of Jordan itself, such as, the amendment of the Constitution and the release of the two critical witnesses against the appellant at his trial in absentia"

However, these points were deemed not to be relevant for the purposes of the hearing:

"[5] It is impossible for me at this stage to prejudge these issues. All that I can and do
assume is that the Secretary of State would not have undertaken the course which she has unless
convinced that she was in possession of material which could support her resistance to the
appellant's appeal and which could satisfy the cogently expressed reservations of the Strasbourg
Court about the fairness of the retrial which the appellant would face in Jordan."

As well as "at last" signalling the end to the litigation, this progress also meant  

"the risk of absconding has increased, if the appellant judges that he would not avoid deportation to Jordan by litigation in and from the United Kingdom"     

The judge, whilst accepting that it was not the applicant's fault, was concerned about the "sinister players in global affairs" who championed his cause, as well as the threats and blandishments from various Al Qaeda franchises" made during his detention. (Al-Qaeda are reported to have offered a hostage exchange to secure Qatada's release). As a result of this, there was, in the judge's view, an increased risk that they would "lend effective support" in helping Qatada to abscond were he to be bailed.

The decision

Having set out the background, HHJ Mitting considered three further factors (paras 9-11):

1. The length of time for which the applicant had already been detained
2. The future  of the case 
3. The Olympics - yes, that's right!

The length of time for which the applicant had already been detained and the future of the case

The first two considerations were taken together. It was acknowledged that the length of the applicant's detention was "extraordinary" and "viewed in hindsight, it is hardly, if at all, acceptable." Even so, that this was was largely contributed to by the slow process of the domestic and Strasbourg courts "could hardly be ignored" Therefore:

[10] I rest my decision on lawfulness, as on proportionality and necessity, principally, on the time between now and the handing down of SIAC's judgment; in other words, the factor that I take, principally, into account today is the future.

HHJ Mitting was satisfied that, "if SIAC does its job properly" the case would be finally concluded within 6 months.

The Olympics

What followed is likely to cause considerable comment and is worth quoting at length (emphasis added):

[11] The third and final factor that I take into account and which weighs heavily with me is that 

which Mr Tam QC stated in the open proceedings after the closed hearing, which took place 

when Mr Fitzgerald had concluded his opening submissions.  The Security Service and the 

police have limits on their resources. During the period of preparation for the Olympics, which is 

already underway, and the Olympics and the Paralympics, there will be a high level of demand 

on those resources. Their objective is to protect the United Kingdom and its inhabitants and 

visitors.  If the appellant were to abscond, then either the resources which should be devoted to 

those ends would have to be diverted to finding him or finding him would be afforded a lower 

priority than should be the case. In those circumstances...so, notwithstanding that the period of detention has been and will, by the conclusion of these proceedings, be of exceptional length, I am satisfied that it is both lawful and that continued  detention is both necessary and proportionate. Accordingly, and for those reasons, I refuse this renewed application.

Comment

At the risk of indulging in crude paraphrasing, it seems to me that the tipping point for the decision was  the logistical strain of the Olympics. To emphasise the point, consider the question slightly differently. What would have happened if the Olympics had not been happening?

HHJ Mitting openly accepts that the length of Abu Qatada's detention is unacceptable and the obvious fact that by the time his case is ultimately concluded the situation will only have been exacerbated. The strength of his reasoning depends on a reliance on SIAC to "do it's job properly". A tribunal that is part of the domestic process that has contributed to Qatada's situation. Article 5 ECHR is meant to protect against the excesses of the State. It is difficult to see how one can reason that the State's conduct thus far has been barely lawful, but then conclude that it is irrelevant to any decision on his continued detention. The judgment also does not appear to directly address the complaint of Mr Fitzgerald QC that much of the progress that has been made had nothing to do with the Government. This too must surely be relevant.

It is difficult not to get the impression reading the judgment that the first two considerations balanced each other out. Whilst Qatada had been in detention for a virtually unprecedented length of time, there was a real possibility that "sinister figures" would help him abscond (even though, he was not directly responsible for their actions). That being so, the real problem was the added pressure of the Olympics.

If that conclusion is accurate (and I would welcome a correction from those more knowledgeable than I am), the consequences could be stark. Two questions follow. Firstly, whatever happened to the principle that people could not be detained for a disproportionate length of time simply because there were difficulties in securing their deportation. Yes, the decision puts forward certain (nebulous) concerns about Qatada absconding but that is not "weighed heavily" in HHJ Mitting's reasoning.  Secondly, how many people are/could be detained on the basis of logistical convenience? 

I do not recall anything in the 2012 bid that included suspending the Rule of Law- do you?