Qatada extradition – Theresa May and new mutual legal assistance treaty with Jordan

And so the Qatada saga rumbles on.

Last week was a busy week for Theresa May. On Tuesday, the Government’s application to appeal the court’s refusal to deport Qatada was rejected. This followed the Judgment of 27 March 2013 in which the Court of Appeal held that there was a real possibility that evidence obtained through torture will be used against him; see Othman (aka Abu Qatada) v Secretary of State for the Home Department [2013] EWCA Civ 277 (27 March 2013). With Jordan seeking Qatada’s extradition to face terrorism charges, and successive UK Governments correspondingly seeking his deportation since 2001, there is still little prospect of a conclusion in sight.

On Wednesday, we heard that David Cameron was looking at ‘every option’ and did not rule out a temporary withdrawal from ECHR to allow us to extradite Abu Qatada to Jordan. This resulted in stunned outrage on Twitter, and (equally stunned) incredulity in the legal community. Yvette Cooper responded by saying that May had, in the past, ‘overstated her legal strategy’ which had not worked. Such a move would require the circumstances to fall within Article 15 of ECHR, which allows countries to pull out at times of ‘war or other public emergency threatening the life of the nation’, and only if it is ‘strictly required by the exigencies of the situation’.

May refrained from advancing this approach in Prime Minister’s Questions. She did however announce to Parliament that she had signed a new mutual legal assistance agreement with Jordan which, she hopes, will see the back of Qatada. One would expect that this treaty will be met with a degree of scepticism. May is keen to point out that the new treaty ‘includes a number of fair trial guarantees’ and that she believes these guarantees will ‘provide the courts with the assurance that Qatada will not face evidence that might have been obtained through torture.’ Quite whether the courts are satisfied with the provisions of the treaty given the history of this case, will remain to be seen.

Similar efforts have failed in the past; in 2005 the UK signed a memorandum of understanding with Jordan, also in an effort to deport Qatada. The memorandum purported to ensure ‘fair trials’ for deportees, it failed to define fairness and, ultimately, failed to secure the desired result. The new treaty is worded in much stronger terms, however we shall see whether the Government finally passes the threshold set by the European Court of Human Rights.

Whilst this treaty has been dressed up as one which applies to all in the future, it is seen by many as a bespoke agreement to deal with Qatada.  However, Qatada aside, there may be further important implications of the treaty; the agreement is ‘fully reciprocal’ and will provide assistance to either country in either the investigation of crime or the restraint and confiscation of the proceeds of crime. Ultimately, this aspect of the treaty may become the most significant ingredient.  While prosecutors may relish the prospect of easier co-operation with another territory, it remains to be seen how useful this assistance will be when there is a real risk that it is tainted by torture or other misconduct (see UN criticism of torture and mistreatment of detainees).

In any event, it does not look like Qatada needs to pack an overnight bag just yet.