The Abu Qatada Ruling: An Important Exception

Originally published by CagePrisoners, 12 November 2102

Mr Justice Mitting’s decision today refusing the deportation to Jordan of Omar Othman, popularly known as Abu Qatada, is a significant victory for the British legal system over government pressure. His barrister, Edward Fitzgerald QC at once asked for bail, “there is no justification for continuing to deprive Mr Othman of his liberty. Enough is enough, it has gone on for many years now.”

But the future arrangements for Mr Othman’s life in Britain are complex and uncertain with regard to bail and conditions. The extraordinary politicisation of this case, and the government’s investment in winning was underlined when the Home Office immediately announced they would seek leave to appeal. However, this was refused by the court – the Special Immigration Appeals Commission (SIAC).

This long saga has displayed all the worst elements of the political, legal and social context post 9/11 Britain for refugees, for Muslims, and for those tagged by the security services as related to terrorism.

Secret evidence has been at the heart of Mr Othman’s arrest in 2002, the frequent refusals of bail, two revocations of bail after just a few months when it was finally granted with a restricted regime of 22 hour curfew, electronic tagging, less than a handful of visitors cleared by the Home Office to visit the house, and then only singly. For the best part of a decade he has been incarcerated in a small unit with other Muslim men whom Britain wanted deported or extradited, and where some were driven into full mental illness by the uncertainties of their long prison ordeal, when they had no accusations of any crimes committed in this country. Judge Mitting earlier described the years Mr Othman has been in UK prisons as “extraordinary,” and spoke of a “lamentable” period of time resolving the case.

Mr Othman is a Palestinian who previously lived in Jordan, where he suffered serious torture before. Years later, after he had left the country, Jordan named him in connection with terrorist bombing plots. The evidence against him was obtained by torture. He was tried in a military court in absentia and convicted, twice, and sentenced to life imprisonment. His co-defendants complained, with evidence, of their torture during their trials years ago. A witness who gave evidence that exonerated the co-defendants in the first trial has been executed.

On these grounds successive British courts found against successive Home Secretaries’ decisions to deport him, before the law lords decided in 2009 that he could after all be deported. The European Court of Human Rights in January this year ruled, to the dismay of the coalition government, that the likely use of evidence obtained by torture meant he should not face trial in Jordan.

A hysterical and xenophobic campaign against Mr Othman was then conducted by the Home Secretary personally, and publicly backed by previous ones. Everyone from the Mayor of London to the most obscure of MPs felt they could gain some cheap popularity points by talking about the threat Britons faced by Abu Qatada living a normal life in London.

Mrs May restarted the deportation proceedings that ended today, after receiving some assurances from Jordan on the torture evidence issue which she believed would persuade SIAC he could indeed be deported. She even visited Jordan herself to push her demands. However, in the two week trial a contradiction between two Jordanian witnesses left Mr Justice Mitting and his two senior colleagues without the certainty they sought that there was not a “real risk” of Mr Othman facing a trial based on just such evidence tainted by torture. The Home Office said today they strongly disagreed with the judgement, and that they had received assurances “not just in relation to the treatment of Qatada himself but about the quality of the legal processes that would be followed throughout his trial.” In the face of such a serious setback Mrs May is unlikely to leave it there.

The entire political class and media joined in the shameful hounding of Mr Othman, and stigmatised him as a terror suspect who has cost British tax payers a fortune to keep locked up for nearly a decade. No one cared to remember that Mr Othman was accepted here as a refugee, lived a normal family life here, and in a different political climate in the years before 9/11, spoke publicly and openly against dictatorships and repression in many Arab countries, including Jordan. He has never been accused of any crime in this country. He denounced both the 9/11 and 7/7 terrorism acts.

Face to face, the man himself, a serious Islamic scholar not a political leader, is far from the stereotyped extremist who the British people have been told repeatedly to fear having the right to walk in our streets. He is a father who has survived with extraordinary dignity the pain of what has been done to his family here over the years: pressure put on a landlord to force them out of their home; media lies not only about him, but about his elder son, which must have made him fear for the boy’s future; a media circus encamped outside his house, endlessly photographing his children as they left for school and college during the three months when he had bail earlier this year - he evaded them by never stepping out - until the police came to take him away, in the glare of camera lights.

It is worth remembering that when he was first out on bail in 2008 and had his house searched by police, Mr Justice Mitting, considering the Home Office request for his bail to be revoked, declared himself “entirely unimpressed” with the materials produced in open court. However, the judge then revoked the bail on the basis of the secret evidence seen only by him and, in the Orwellian system of SIAC, the Special Advocate Angus McCollough, who is allowed no contact with the accused or his normal lawyers.

Similarly, earlier this year bail was revoked again after three months. In the run-up to the Olympics Mr Justice Mitting referred to "the very high level of demand in resources" during the Olympics, the issue highlighted by Home Office barrister Robin Tam QC at the SIAC hearing. "As a matter of logical inference, if Abu Qatada were to abscond, either resources would have to be diverted to finding him or finding him would have to be accorded a lower priority," Mr Tam said.

Both times the Home Office put forward the risk he would abscond to block bail. Any evidence for this was in the closed hearings. His lawyers were fighting ghosts. His own words on this issue are worth remembering. In court in November 2008 Mr Othman told the judge, “I have understood that the government is accusing me of trying to flee, and I have to stress to you that escaping from this country is an idea that I consider mad and it would not cross my mind, because I am under surveillance for 24 hours a day. I am under surveillance in my own home, and also outside for two hours under surveillance by the press. It is not a secret that in front of my house there is a camera pointed towards us. It is very evident. Also, part of my moral principles would prevent me from betraying the trust of the people who have acted as sureties. Whatever you may say about me I would never reach the low point of betraying their trust.” The court chose to disregard his words.

This year the judge spoke of “sinister” elements, who threatened to help Mr Othman to abscond. There may well be just such “sinister” elements who have such fantasies about a man who has been made into a myth figure by the British authorities and the UK media. From Pakistan, Gaza and the Maghreb at various times, jihadis have demanded to exchange Abu Qatada for hostages they have taken. That is not his fault. This image of his importance was created here. If his lawyers had been able to find an alternative country for the family to move to, they would have been glad to move, but Britain’s created image of him as a terrorist is indelible.

We like to think that Britain believes in level playing fields, innocent until found guilty, and all the other human rights clichés. Not in this case. For Mr Othman and his family we never showed the commitment to universal human rights that drew him to this country – quite the contrary. Today’s decision by Mr Justice Mitting is an important exception