The key to understanding the decision is to separate the notion that Abu Qatada might be a really nasty bad guy who wishes us ill will and harm from the issue before the court i.e. did SIAC err in law in concluding there is a risk that Qatada will not get a fair trial in Jordan due to a "real risk" that evidence obtained by torture would be used in such a trial. SIAC said -
"78. 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."They also stated -
"87. 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."SIAC, like the UK government and the European Court of Human Rights, did not believe Qatada would be tortured in Jordan. However, SIAC did decide that his trial in Jordan, should he be deported, may be tainted by evidence obtained by torture.
The Court of Appeal note right up front that Abu Qatada is considered dangerous but that the key question is the risk that evidence obtained by torture would be used in his trial in Jordan:
1. Omar Othman is regarded by the United Kingdom government as an exceptionally high risk terrorist. For a number of years, the Secretary of State for the Home Department has been seeking to deport him from the United Kingdom to Jordan under section 5(1) of the Immigration Act 1971 (“the 1971 Act”) as a person whose deportation is deemed to be conducive to the public good. He has already been tried and convicted in his absence in Jordan for offences of the utmost seriousness. If returned to Jordan, he will face a retrial. The issue that lies at the heart of the present (and earlier) proceedings is the proper assessment of the risk that the evidence against him at the retrial would include statements that have been obtained by torture and, if so, what effect this has on the lawfulness of his deportation."The burden on the Home Secretary's lawyers before the Appeal Court was to prove that SIAC had made errors in law in concluding that there is a real risk that a trial of Abu Qatada in Jordan would include evidence obtained by torture. Essentially they could not prove that SIAC made such errors, so the Court denied the appeal.
56. Mr Othman is considered to be a dangerous and controversial person. That is why this case has attracted so much media attention. It is entirely understandable that there is a general feeling that his deportation to Jordan to face trial is long overdue. But the principles that we have to apply do not distinguish between extremely dangerous persons and others who may not constitute any danger in the United Kingdom and whom the Secretary of State wishes to deport to face trial in another country. The fact that Mr Othman is considered to be a dangerous terrorist is not relevant to the issues that are raised on this appeal. It would be equally irrelevant if we were deciding the question whether there was a real risk that he would be tortured if he were returned to Jordan.
57. Strasbourg recognises that it is only in a very rare case that a state should be prevented by the ECHR from deporting persons to face trial in the courts of another country. The fact that there is a risk that the deported person will not have a fair trial is not enough. There must be a real risk that he or she will suffer a flagrant denial of justice. Strasbourg has rightly set the bar very high. The unfairness must be of a very high order. What is required is a real risk of a breach of the principles of a fair trial guaranteed by article 6 which is “so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that article”.
58. Torture is universally abhorred as an evil. A state cannot expel a person to another state where there is a real risk that he will be tried on the basis of evidence which there is a real possibility may have been obtained by torture. That principle is accepted by the Secretary of State and is not in doubt. That is the principle which SIAC had to apply in the present case in the light of all the evidence that it heard and read. This included evidence as to what had happened and what there was a real risk would happen if Mr Othman faced a retrial on the very serious charges that he faces. SIAC found that there was a real risk that evidence obtained by torture would be admitted at the retrial and that, as a consequence, there was a real risk that he would be subject to a flagrant denial of justice.
59. In order to succeed in this appeal, the Secretary of State has to show that SIAC erred in law. It is not sufficient to persuade us that we would have reached a different conclusion on the facts and Mr Eadie rightly recognised the difficulty of such an exercise. The Secretary of State accepts that SIAC directed itself properly as to the general legal test to apply. Her case that SIAC nevertheless erred in law is based on a detailed examination of a careful and comprehensive judgment. As we have stated at paras 5 and 6 above, criticisms of this kind of a decision by a specialist tribunal are particularly difficult to sustain. For the reasons that we have given, we are satisfied that SIAC did not commit any legal errors.
60. This appeal must therefore be dismissed."I suspect the declaration that the "fact that Mr Othman is considered to be a dangerous terrorist is not relevant to the issues that are raised on this appeal" will have some people scratching their heads in wonder and the Home Secretary, the usual mass media suspects and the angry mob decrying 'out of touch' judges.
Yet the Secretary of State herself, if the submissions of her lawyers before the Court of Appeal are to be believed, accepts in law that a "state cannot expel a person to another state where there is a real risk that he will be tried on the basis of evidence which there is a real possibility may have been obtained by torture." That fundamental principle is blind to whether the person involved is considered dangerous or indeed any other idiosyncratic personality traits and for the time being at least it means that Abu Qatada will remain in the UK.
Cheat note for the occasional reader who enjoys legalese chomping - if you're short on time, try skimming paragraphs 1, 14, 17-18, 23-29, 33-34, 46 and 55-60 of the Court of Appeal's ruling to get a reasonably rounded understanding of the thinking of the Master of the Rolls, Lord Dyson and his compatriots Lord Justices Richards and Elias.
Update: Conor Gearty, a professor of human rights at the London School of Economics, has an excellent piece in Thursday's Guardian on the case, Abu Qatada: the law won.