Othman v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 18 February 2009 |
| Date | 18 February 2009 |
| Court | Court of Appeal (Civil Division) |
England, Court of Appeal (Civil Division).
House of Lords.
(Sir Anthony Clarke MR; Buxton and Smith LJJ)
(Lord Phillips of Worth Matravers, Lord Hoffmann, Lord Hope of Craighead, Lord Brown of Eaton-under-Heywood and Lord Mance)
Aliens Immigration and deportation Appellants deemed to be danger to national security Deportation orders authorized by Home Secretary Appellants appealing against deportation orders Whether deportation from United Kingdom to home countries would breach appellants' rights under European Convention on Human Rights, 1950 Special Immigration Appeals Commission upholding deportation orders Procedural and substantive objections to deportation orders Whether Commission erring in law Jurisdiction of Commission and Court of Appeal Questions of fact and law Commission procedure Legitimacy and fairness Whether Commission permitted to use closed material in reaching conclusions on safety on return Assurances Whether effective Whether individual assurances of receiving State can be relied upon where pattern of human rights violation in receiving State European Convention on Human Rights, 1950
Relationship of international law and municipal law European Convention on Human Rights, 1950 Convention requiring effective remedy before national authority where breach of Convention United Kingdom instituting specialist tribunal in Special Immigration Appeals Commission Review of Commission decisions Right of appeal to Court of Appeal on questions of law only Procedural objections Whether no reasonable tribunal, properly directed, could have reached same conclusion on evidence Whether Commission permitted to use closed material in reaching conclusions on safety on return Whether Commission erring in law
Human rights Prohibition of torture Whether substantial grounds for believing appellants would be at real risk of exposure to treatment contrary to Article 3 of European Convention on Human Rights, 1950 Whether question of fact not subject to appeal Assurances to be considered with other relevant circumstances Whether question of fact Whether assurances could only be relied upon if eliminated all risk of inhuman treatment Whether conclusions of Special Immigration Appeals Commission irrational Article 3 of European Convention on Human Rights, 1950
Human rights Right to fair trial Application to foreign trial Whether returning appellant to native Jordan would breach Article 6 of European Convention on Human Rights, 1950 Whether Special Immigration Appeals Commission erring in law by concluding Article 6 no bar to deportation Whether Commission permitted to use closed material in reaching conclusions on safety on return Whether defects in criminal trial would amount to flagrant denial of fair trial Whether composition of Jordanian court constituting flagrant breach of Article 6 Prohibition on use of evidence obtained by torture Whether real risk of use of evidence obtained by torture necessarily amounted to flagrant denial of justice Whether United Kingdom required to retain terrorist suspect to detriment of national security Article 6 of European Convention on Human Rights, 1950
Human rights Right to liberty and security Whether substantial grounds for believing appellant would be held without charge for 50 days if deported Whether constituting flagrant breach Whether returning appellant to native Jordan would breach Article 5 of European Convention on Human Rights, 1950
Treaties Refugee Convention Whether Article 1F(c) of Refugee Convention applying to acts of person after granted refugee status Prohibition on non-refoulement in Article 33(1) Proviso in Article 33(2)
Terrorism Appellants deemed to be danger to national security in United Kingdom Deportation orders for appellants to return to native Jordan and Algeria Whether United Kingdom breaching obligations under European Convention on Human Rights, 1950 by deporting appellants The law of England
Summary: The facts:Mr Othman, a Jordanian national also known as Abu Qatada, was the subject of a deportation order authorized by the Secretary of State for the Home Department (the Home Secretary). The Home Secretary sought to deport Mr Othman to his native Jordan on the ground that he was a danger to the national security of the United Kingdom. The Government of the United Kingdom had concluded a Memorandum of Understanding with Jordan (the Memorandum) that safeguarded the treatment of persons returned to Jordan.2
Mr Othman appealed against the deportation order. He claimed inter alia that his deportation by the United Kingdom would breach his right to liberty and security and his right to a fair trial under Articles 5 and 6 respectively of the European Convention on Human Rights, 1950 (the Convention). He maintained that his trial before a Jordanian court would not be independent and that he was at real risk of being convicted only on evidence obtained by torture.
On 26 February 2007 the Special Immigration Appeals Commission (the Commission)3 dismissed Mr Othman's appeal against the deportation order.4 The Commission relied upon the effectiveness of the Memorandum to reject Mr Othman's claim that he would face ill-treatment upon his return to Jordan. Mr Othman's complaint under Article 5 of the Convention was rejected since it was found to be a fact that he would be brought before a judicial authority within 48 hours of arrest. The Commission also found that Mr Othman's deportation would not violate the United Kingdom's obligations under Article 6 of the Convention. While the Jordanian court did not meet United Kingdom standards of independence and impartiality, trial before it would not be a complete denial of justice. The risk of complete denial of justice due to the use of evidence obtained by torture had been adequately excluded by the, albeit imperfect, Jordanian judicial process.
Mr Othman appealed. He claimed that the United Kingdom could not rely upon the Memorandum as a matter of principle. He also maintained that the Commission had erred in law in its conclusions based on its finding of facts, that it had not properly applied Convention law as to the independent and impartial tribunal requirement, nor properly dealt with the risk that evidence obtained by torture would be used in the Jordanian trial.
Held (unanimously):The appeal was allowed. Mr Othman's deportation would breach his right under Article 6 of the Convention.
(1) The effectiveness of the Memorandum could be relied upon. It was for the Commission to assess whether assurances were dependable given objections to the general situation in Jordan (paras. 610).
(2) While it was a well-established international law principle that Convention Contracting States had the right to control the entry, residence and removal of aliens, an alien was not to be expelled to a country where he faced a risk, in the terms defined by the European Court of Human Rights, of inhuman or degrading treatment (SoeringINTL).5 Since Article 3 of the Convention enshrined the absolute right of the prohibition of torture, conduct and the nature of the offence were irrelevant. With respect to non-absolute Articles, such as Article 6, an alien could successfully resist expulsion if there was an exceptionally strong case that there would be a gross or flagrant violation of the relevant right if he was returned6 (paras. 1326).
(3) The Commission did not act irrationally in concluding that a trial before the Jordanian court would not amount to a complete denial of justice. The United Kingdom was not in breach of the Soering principle solely on the basis of complaints as to the Jordanian court's independence and impartiality (paras. 3442).
(4) The Commission had erred in law on the issue of evidence obtained by torture. If the appellant were to be sent to Jordan, the United Kingdom would be in breach of the SoeringINTLINTL principle solely on the basis of complaints as to the Jordanian court's use of evidence obtained by torture. The use of evidence obtained by torture was prohibited in Convention law because of the absolute prohibition of torture in Article 3 and not just because it was a factor in making the trial unfair. That any recognition of such evidence would indirectly legitimize that proscribed morally reprehensible conduct was universally recognized outside as well as within Convention law.7 In mischaracterizing the issue, the Commission had undervalued the importance of the risk of a total denial of justice by the use of evidence obtained by torture for conviction and applied an insufficiently demanding test in determining whether deportation would breach the appellant's rights under the Convention. In any event, its reliance on the process before domestic courts sat very ill with its findings about that process (paras. 4357).
(5) Other errors had also contributed to the Commission's failure to find a breach of Article 6 of the Convention. Its view of Jordanian court practice was insufficiently critical; it should not have given weight to the domestic principle in assessing evidence admissibility rules in a foreign case. It wrongly relied on A (No2) to support its case and failed to give proper weight to findings on the defects in the Jordanian court process (paras. 5770).
The Home Secretary appealed and Mr Othman cross-appealed. The Home Secretary questioned whether the Commission's finding in relation to Article 6 was correct. Mr Othman raised a number of issues: whether his deportation to face trial by a military court constituted a flagrant denial of justice in breach of Article 6, whether his deportation in face of a power to detain him for 50 days incommunicado and without...
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