Abu Qatada

Let’s agree that Abu Qatada is a bad man who espouses an ideology of death and tyranny. Whether he deserves all the fear and loathing he attracts is not under discussion here. We’ll assume the worst. It makes the argument clearer. Here it is: human rights are for all humans, even the worst specimens that humanity can produce. Why? Because humanity is capable of rising out of violence and ignorance. We know we can do better than the monsters, and we can demonstrate that by applying the same high standards to every one. That is the way to give a chance to the victims of abuse where no such standards apply. Otherwise rights aren’t rights, but privileges for the fortunate.

Credible evidence shows that the Jordanian state torturers have extracted evidence from the witnesses against Qatada. The UN, Amnesty International, Human Rights Watch and other reputable sources all find that torture is widely used there in the rackety and corrupt organisations that are laughably called the legal system.

The ‘Memorandum of Understanding’ obtained from the Jordanian government may protect Qatada from torture, but will not prevent his trial being conducted on foundations of torture.

In its scrupulously careful judgment on Abu Qatada, the European Court of Human Rights said this

264.  International law, like the common law before it, has declared its unequivocal opposition to the admission of torture evidence. There are powerful legal and moral reasons why it has done so.

It is true, as Lord Phillips observed in the House of Lords’ judgment in the present case, that one of the reasons for the prohibition is that States must stand firm against torture by excluding the evidence it produces. Indeed, as the Court found in Jalloh, cited above, § 105, admitting evidence obtained by torture would only serve to legitimate indirectly the sort of morally reprehensible conduct which the authors of Article 3 of the Convention sought to proscribe.

There are, however, further and equally compelling reasons for the exclusion of torture evidence. As Lord Bingham observed in A and others no. 2, § 52, torture evidence is excluded because it is “unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice.” The Court agrees with these reasons: it has already found that statements obtained in violation of Article 3 are intrinsically unreliable (Söylemez v. Turkey, no. 46661/99, § 122, 21 September 2006). Indeed, experience has all too often shown that the victim of torture will say anything – true or not – as the shortest method of freeing himself from the torment of torture. 

265. More fundamentally, no legal system based upon the rule of law can countenance the admission of evidence – however reliable – which has been obtained by such a barbaric practice as torture. The trial process is a cornerstone of the rule of law. Torture evidence damages irreparably that process; it substitutes force for the rule of law and taints the reputation of any court that admits it. Torture evidence is excluded to protect the integrity of the trial process and, ultimately, the rule of law itself.

276.  Third, and most importantly, due regard must be had to the special difficulties in proving allegations of torture. Torture is uniquely evil both for its barbarity and its corrupting effect on the criminal process. It is practiced in secret, often by experienced interrogators who are skilled at ensuring that it leaves no visible signs on the victim. All too frequently, those who are charged with ensuring that torture does not occur – courts, prosecutors and medical personnel – are complicit in its concealment. In a criminal justice system where the courts are independent of the executive, where cases are prosecuted impartially, and where allegations of torture are conscientiously investigated, one might conceivably require a defendant to prove to a high standard that the evidence against him had been obtained by torture. However, in a criminal justice system which is complicit in the very practices which it exists to prevent, such a standard of proof is wholly inappropriate.

If anyone disagrees with this, please say why you do.

Abu Qatada’s own fate may be a matter of indifference at best. But returning him does huge damage to the reputation of this country as an upholder of the rule of law.  They say we cannot put him on trial here: fine. Let’s not outsource the dirty work to a far away country – of which we know a great deal. If we do, we are the losers.

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About Francis FitzGibbon QC

I am a QC and member of Doughty Street Chambers, London (www.doughtystreet.co.uk) & an associate member of Trinity Chambers, Newcastle (www.trinitychambers.co.uk). Chair of the Criminal Bar Association of England & Wales. I practise criminal law. Please do not look for legal advice in this blog as you won't find any. The views expressed here are entirely personal.
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