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Archives for : July2013

David Hoffman on LBC radio

It was a great pleasure to be on Nick Ferrari’s breakfast show on LBC radio this morning (9 July) discussing the Human Rights Act. The prompt was the deportation of Abu Qatada – who else would we like to deport, and if the Human Rights Act stops us, should something be done about that? It’s a difficult question and one worthy of popular discussion. My own view is that we do need the Act – it serves an invaluable purpose in ensuring we are protected against the state and by the state, and that if the price is that we have to keep a relatively small number of potentially deportees to prevent them being mistreated otherwise, that is the mark of living in a civilised society. But there is certainly scope for discussion – not every case where the Act is used necessarily gets to the right answer – but that doesn’t mean the Act should be abolished. Something to consider for yourself as well!

Deporting Abu Qatada

Deporting criminals is a usual response to crimes committed by nationals of other countries. The basic idea is that someone who is allowed into the country has to behave themselves, and if they don’t, they can be asked to leave. One of the principles that the European Court has developed is that someone should not be deported if the result will be that they will face serious mistreatment, because while they are within a Convention state, they deserve the same protection as all other people. This is usually applied under Article 3 of the Convention, protection from torture.

This issue is at its most acute where the people whom the government wishes to deport have committed, or are suspecting of being involved in, crimes of terrorism, but there is no country which will take them where they can be free of ill-treatment. The European Court has confirmed that their conduct does not deprive them of the protection of Article 3.[1]

Article 6 can also apply if the mistreatment feared includes such a fundamental lack of fairness in legal process that there is likely to be a miscarriage of justice, in particular where there is a real risk that evidence obtained by torture will be relied on. This was considered in the case of the terrorist suspect Abu Qatada, where the House of Lords  applied this test and held that it was not met. The European Court disagreed: there would be a real risk of such evidence being admitted and there would be a breach of Article 6.[2]

After a long legal battle, Abu Qatada has now been deported. This is because the state of Jordan, his destination, provided sufficient guarantees, in a treaty, that his trial would be fair and free of evidence obtained by torture.

This lengthy battle on the part of the government to deport Abu Qatada has been controversial because of the time it has taken and the cost in legal fees (including legal aid). But the result has been that the state of Jordan has had to guarantee certain basic rights that were not guaranteed before. It is also an affirmation of the rule of law – that the government has had to follow the rules, no matter what Qatada was accused of. Although it has been a bit of an epic, it is important that everyone, no matter what we may think of them, has the same human rights protection that we would want to enjoy.

[1] Saadi v Italy [2008] 24 BHLR 123

[2] RB (Algeria) v Home Secretary [2009] UKHL 10, [2010] 2 AC 110; Othman (Abu Qatada) v UK (2012)  55 EHRR 1