Tuesday, November 13, 2012

The MP, the outrage mob and Abu Qatada

A jury has decided that ex-MP Margaret Moran had committed 15 counts of false accounting and six counts of using a false instrument in relation to parliamentary expenses.

Interestingly, since the judge, defence and prosecution agreed that she was unfit to stand trial for mental health reasons, she can't be found guilty and sentenced to jail time.

No doubt a self-selecting proportion of the moral outrage mob, some of whom are currently in full flow over the release of Abu Qatada following the Special Immigration Appeals Commission (SIAC) decision yesterday that he can't be deported to Jordan, will say the Court is being soft on Ms Moran. There'll be accusations of faked illness and soft judges but this is probably more an example of the criminal justice system behaving appropriately and proportionately to the circumstances being assessed.

It's just a pity that the large numbers of people with mental health problems who have been sent to jail did not and do not get the consideration and treatment they need. As the Prison Reform Trust says, offering mental health and social care instead of custody would relieve pressure on prisons and could cut re offending rates.

The mob find it even harder to deal with the Abu Qatada case. WHY can't we GET RID OF the BAD MAN?!!!  Pick your choice of fall guys - the government, the judges, the courts, the EUROPEAN COURT, the HUMAN RIGHTS ACT, WHADABOUT MY HUMAN RIGHTS, the soft liberals, the list goes on. Someone on the radio this morning yelled he didn't care if Qatada got tortured - he deserved it.

Abu Qatada is on record as preaching hatred, supporting and inciting violence and has been alleged to have been directly involved in acts of terrorism. There are plenty of laws on the statute books in the UK that would enable him to be prosecuted and, most likely, convicted. The government chose instead to start the process of deporting him. It's taken years and he's still here, albeit he's spent most of that time in prison.

What are the latest reasons he cannot be sent away? The SIAC determined there were 2 key questions relating to whether evidence against Qatada obtained by torture would be used in his trial in Jordan.
The answers to two critical questions will determine whether there is a real risk that the impugned statements will be admitted probatively:
Irrespective of the means by which they were obtained, are the impugned statements now admissible at all under Article 148.2 of the Code of Criminal Practice?
If they are, is there a real risk that they will be admitted even though there is a “real risk” that they have been obtained by torture? "
The angry mob really need to understand the Commission was not looking at whether Qatada was a bad guy but at whether Jordan would give him a fair trial, including avoiding the use of evidence obtained by torture.

The Commission take a look at the way the Jordanian justice system works, differing opinions on what might be allowable within the rules of the system, and whether the statements probably obtained by torture could be used in his trial (para 55 -  63).  They decide that none of the opposing professional opinions on whether the torture evidence statements could be used is definitive. The undeniable conclusion therefore must be that there is a real risk such statements could be admissible as evidence against Abu Qatada at his trial in Jordan:
Unless and until the Court of Cassation gives an authoritative ruling on the question, it must remain open. Both views are tenable... It is simply impossible for us to resolve these differences. Confronted with two tenable views of what Jordanian law provides, all that we can do is to return to the basic Strasbourg test: has the Secretary of State established that there is not a real risk that the impugned statements will be admitted probatively? To that question there can be only one answer: unless we can be confident that the court would not admit the impugned statements because they were tainted by the “real risk” of torture, the answer must be negative.
The Commission then goes on to look at whether alleged torture induced statements would be used in evidence, given there is a risk they could be admitted. They conclude that, even though Jordan's constitution was amended in 2011 to prohibit torture, people claiming they were tortured will still have the burden of proving that.
"72...It is likely to require a definitive ruling by the Court of Cassation or the newly established Constitutional Court... and place the burden of proof that the statements were not obtained by torture on the state prosecutor.
73. If the burden of proving that the impugned statements were obtained by torture is imposed on the appellant, it will be difficult to discharge. They were made over fourteen years and nearly twelve years ago respectively... The only means of eliminating a real risk that statements which may well have been obtained by torture will be admitted probatively at the appellant’s retrial would be for the burden of proving, to a high standard, that they were not, to be placed upon the prosecutor. Anything less gives rise to a real risk that they will be."
 They then conclude there remains a risk that Qatada will not get a fair trial in Jordan.
"Conclusion on the Article 6 issue
The Secretary of State has not satisfied us that, on a retrial, there is no real risk that the impugned statements of Abu Hawsher and Al-Hamasher would be admitted probatively against the appellant. Until and unless a change is made to the Code of Criminal Procedure and/or authoritative rulings are made by the Court of Cassation or Constitutional Court which establish that statements made to a public prosecutor by accomplices who are no longer subject to criminal proceedings cannot be admitted probatively against a returning fugitive and/or that it is for the prosecutor to prove to a high standard that the statements were not procured by torture, that real risk will remain.
In spite of the angry radio phone-in caller's hopes that he will be tortured, the Commission also agree with the European Court of Human Rights (para 194 - 196) that there is little risk that Qatada will be tortured in Jordan, by agents of the state.
"Article 3
In the light of our conclusions on the Article 6 issue, we can deal with the Article 3 issue more briefly than would otherwise have been required. SIAC has had to consider the history and circumstances of Jordan and the reliability of the assurances given by it to the United Kingdom in two judgments, handed down respectively on 26th February 2007 and 2nd November 2007 – Othman and VV. In both, SIAC concluded that the United Kingdom could safely accept solemn assurances given by the Jordanian state; and that those assurances removed the real risk that either appellant would suffer inhuman or degrading treatment at the hands of state agents in Jordan, for two fundamental reasons: the close and friendly relations which have existed at all levels in the governments of both countries for many decades; and the general coincidence of interests of the two countries in those aspects of international affairs which affect them both. The Strasbourg Court came to the same view for essentially the same reasons...
We remain convinced that the government of Jordan can and will fulfil its assurances about the treatment of the appellant on return...Like the Strasbourg Court, we remain satisfied that those assurances provide, in their practical application, a sufficient guarantee that the appellant will be protected against the risk of ill-treatment by or at the behest of Jordanian state agents."
So, to summarise, we don't think he'll be tortured over there but his re-trial may be tainted by evidence obtained by torture. Where does this leave us?

Abu Qatada can smile on his release and the outrage mob can foam at their collective mouths and infer his evil satisfaction, but Ben Franklin was smarter than both them and me, and he reckoned "that it is better 100 guilty persons should escape than that one innocent person should suffer is a maxim that has been long and generally approved."

Why don't we just stick him on a plane and send him to Jordan anyway? The Italians only had to pay €15,000 each to people they wrongly deported to Libya and the Home Secretary could be a media heroine for a day or two. And as a cost benefit analysis, €15,000 or €20k or €50k or even €100k  is a lot cheaper than keeping him in jail and/or under constant surveillance and pursuing due process to get rid of him.

Well we live in a country where the government, by and large, respects the rule of law and the notion that it should apply to everyone, including the alleged bad guys. That's a good thing.

Alternately, it is possible the Home Secretary and other members of the government, in addition to wanting to protect the reputation of the UK, may be concerned about personal sanctions they might be subjected to, in the longer term, if they were to be complicit in ordering an illegal deportation.

Whatever the motivation, it is to the credit of the UK justice system that the Special Immigration Appeals Commission could continue to address this case through rational application of the rule of law, in spite of the pressures to facilitate Abu Qatada's deportation. The government will appeal the decision, as they should do, but if this man is to be deported it needs to be done by the book. Better still, if he is as dangerous and guilty as has been alleged, bring the evidence you have against him before a UK court and put him on trial here.

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