Omar Othman, also known as Abu Qatada, lives in England and acts as a radical Islamic preacher. He is regarded by the Government of the United Kingdom as an exceptionally high risk terrorist.
He was born in 1960 near Bethlehem, then administered as a part of the Kingdom of Jordan. He left Jordan for Pakistan sometime later and arrived in England in September 1993, applying for refugee status on the basis that he had been arrested and tortured by the Jordanian authorities two years before. He was recognized as a refugee in 1994 and granted permission to remain in England until 1998. At that time he applied for indefinite leave to stay. He was arrested in October 2002 by which time his application had still not been determined. He was arrested under the authority of a UK statute called the Anti Terrorism Crime and Security Act 2001. In 2005, the UK Secretary of State served him with a notice of intention to deport him.
In April, 1990, Othman had been convicted in Jordan in absentia of conspiracy to cause explosions. The conspiracy related to bombings in Jordan in which the AmericanSchool and the Jerusalem Hotel in Amman had been attacked in 1998. He had been sentenced to life imprisonment.
He was again tried in Jordan in absentia in 2000 for being part of a conspiracy to cause explosions at Western and Israeli targets in Jordan to coincide with the millennium celebrations. The conspiracy was uncovered before the attacks could be carried out. He was convicted and sentenced to 15 years in prison.
As part of a negotiation in 2005 between Jordan and the United Kingdom relating to the deportation of terrorist suspects to Jordan, a Memorandum of Understanding was signed between the two countries setting out a series of assurances of compliance with international human rights standards which would be adhered to in the event that the UK deported anyone to Jordan. The Jordanian government also issued a side letter giving assurances that the death penalty would not be imposed in the event of a conviction of such a person.
The day after the Memorandum of Understanding was signed, the UK Secretary of State began the deportation proceedings against Othman. Othman appealed to the Special Immigration Appeals Commission arguing that if he returned to Jordan, he would be retried and there was a real risk that evidence obtained by torture, either of him or co-defendants, would be admitted into evidence against him.
The SIAC agreed with him and ruled that his deportation would violate the European Convention on Human Rights provision that states that everyone is entitled to a fair hearing by an independent and impartial tribunal established by law.
The UK government appealed to the Court of Appeal.
Incredibly, the appeal was dismissed.
The Court pointed out that only rarely will a state be prevented from deporting people to face trial in another country. The fact that there is a risk that the accused will not have a fair trial is not enough. There must be a real risk of a flagrant denial of justice. Accordingly, a person cannot be deported where there is a real risk that he will be tried on the basis of evidence that may have been obtained by torture.
The Court of Appeal reviewed the facts of the case and the decision of the SIAC with great care. It considered the Memorandum of Understanding and the fact that any new trial in Jordan would involve independent and impartial judges.
On the question of the likelihood that evidence obtained by torture might be used against Othman, the Court seemed to agree that the onus was on the prosecution to demonstrate either that no evidence (possibly) obtained by torture would be used, or that if such evidence was to be used, it would not likely form an important part of the prosecution’s case in Jordan. The Court accepted that it was not Othman’s responsibility to demonstrate that this was going to happen, but rather the prosecution’s responsibility to demonstrate that this would not happen. In this case, the statements in question were extracted, properly or otherwise, from alleged co-conspirators about 14 years earlier. How the prosecution could possibly have been expected to discharge this type of onus was not discussed in the case.
The court recognized that Othman is a truly dangerous person. He has been living in the UK and functioning as a radical Islamic preacher. He has been described as a senior operative of Al-Qaeda. However, as far as the Court was concerned, “The fact that Mr. Othman is considered to be a dangerous terrorist is not relevant to the issues that are raised on this appeal”.
There is something wrong with this.
In a number of earlier posts I have commented on the ability of the court, at least in this jurisdiction, to deliver a practical and common sense result notwithstanding technical arguments that would suggest otherwise. This case does not appear to be such an instance. In this case the UK Court of Appeal seems to have decided to extend a measure of tolerance and compassion to an individual whose cause is quite clearly intolerant and totally lacking in compassion. As a result, the Western world and specifically the population of the UK will continue to be burdened by Othman for the foreseeable future.
The UK government has undertaken to seek leave to appeal, and perhaps obtain further assurance from the Jordanian government as to the treatment that Othman might expect to receive in the event of a deportation. Let’s all hope for a better result next time.