Othman (Jordan) v Secretary of State for the Home Department

In a foreign-expulsion case, Article 6 is engaged only where removal exposes the person to a real risk of a flagrant denial or complete nullification of fair-trial rights. The assessment concerns the actual process in the receiving state and the responsibility of the expelling state. It cannot be resolved by hypothesising Convention rights or derogation there. Lack of independence of a foreign tribunal, standing alone, may not meet the stringent threshold. A real risk that evidence obtained by torture will be admitted or acted on is different. Because torture engages the absolute Article 3 prohibition, it requires separate and particularly demanding scrutiny and cannot be treated as one factor in the trial’s general fairness. Diplomatic assurances may be relied upon if their practical effectiveness is carefully assessed.

The Secretary of State sought to deport Mr Othman to Jordan on national-security grounds. The Special Immigration Appeals Commission dismissed his appeal in determination SC/15/2005, accepting that a memorandum of understanding could protect him from ill-treatment and concluding that any future Jordanian retrial would not involve a complete denial of a fair trial.

Mr Othman appealed to the Court of Appeal. He challenged the reliance on assurances, the independence and impartiality of the Jordanian State Security Court, the possible admission of evidence obtained by torture, and the risk of excessive pre-trial detention. The central issue was whether removal would expose him to a real risk of a flagrant denial of his Article 6 rights.

1. Appeal allowed. SIAC’s determination dismissing the appeal against the deportation order was quashed. An order allowing Mr Othman’s appeal was substituted.
2. Article 6 complaints in foreign extradition or expulsion cases are maintainable. The applicable threshold is the stringent Soering test, requiring a real risk of a flagrant denial of a fair trial, understood as complete denial or nullification of the Convention right: 11 EHRR 439; [2004] 2 AC 323. Ordinary departures from Article 6 standards do not suffice.
3. The assessment concerns the actual conditions and procedures in the receiving state and the responsibility of the expelling state. It must not be based on speculation about how the receiving state might act if it were a Convention state, including whether it might derogate. Diplomatic assurances are not barred in principle, but their practical effectiveness must be examined: [2008] 2 WLR 159.
4. The lack of structural independence of Jordan’s State Security Court and prosecutor, although serious, did not by itself establish a flagrant denial. Domestic authorities concerning the independence of a tribunal in a Convention state did not determine the different foreign-expulsion question.
5. The use of evidence obtained by torture engages Article 3 as well as Article 6. Such evidence must never be relied upon to prove guilt. The risk that it would be admitted or acted upon therefore required a high degree of assurance and had to be considered separately from the general fairness of the trial. SIAC wrongly treated it as merely one factor in the overall assessment.
6. SIAC further erred by relying on domestic admissibility principles, by misusing A v Home Secretary (No 2), and by considering hypothetical derogation. On the evidence, it was not open to SIAC to conclude that the risk of a total denial of justice through use of torture-tainted evidence had been adequately excluded.
7. The Article 5 complaint was practically defeated by SIAC’s finding that Mr Othman would be brought before a judicial authority within 48 hours and that excessive extensions would not be sought. The separate argument concerning a whole-life sentence was rejected; the court observed that an unfair trial would infringe the principle regardless of sentence, while a whole-life sentence after a fair trial would not itself establish a total denial of justice.

• Court of Appeal (Civil Division). In [2008] EWCA Civ 290, the appeal was allowed. SIAC’s determination was quashed and an order allowing the appeal against deportation was substituted.
• Special Immigration Appeals Commission. In determination SC/15/2005, SIAC dismissed the challenge to deportation.