Othman (aka Abu Qatada) v Secretary of State for the Home Department

On an appeal from SIAC, the Court of Appeal held that the risk of a flagrant denial of justice under Article 6 must be assessed in all the circumstances. The receiving state’s rules on the burden and stage of proving torture are important, but not determinative. Where compelling evidence establishes a real risk that statements were obtained by torture, the central issue may properly be whether there is a real risk of their admission at trial. A specialist tribunal may assess realistic evidential outcomes and reject speculative possibilities. An appellate court may intervene only for an error of law, not because it would weigh the facts differently. The appeal was dismissed.

The Secretary of State sought to deport Mr Othman to Jordan under section 5(1) of the Immigration Act 1971. The Strasbourg court had found that deportation would violate Article 6 because of a real risk that evidence obtained by torture would be admitted at his retrial. Following further discussions and assurances between the United Kingdom and Jordan, the Secretary of State refused to revoke the deportation order. SIAC allowed Mr Othman’s appeal on 12 November 2012, finding a real risk that the impugned statements would be admitted probatively. The Secretary of State appealed, alleging errors in SIAC’s treatment of the burden of proof, the combined risks, and other possible retrial outcomes.

1. Appellate jurisdiction and restraint. Under section 7(1) of the Special Immigration Appeals Commission Act 2007, the appeal was confined to questions of law material to SIAC’s determination. The court applied the caution stated in AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] 1 AC 678 and MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49; [2011] 2 All ER 65. SIAC’s factual assessment could not be replaced merely because the Court of Appeal might have weighed the evidence differently.
2. Article 6 threshold. The applicable test, first stated in Soering v United Kingdom (1989) 11 EHRR 439, requires a real risk of unfairness so fundamental that it nullifies or destroys the essence of the fair-trial right. In the present context, a real risk that evidence obtained by torture would be admitted at the retrial could amount to a flagrant denial of justice.
3. Burden of proof and Jordanian law. SIAC had not treated a prosecutorial burden of proof as a universal legal requirement. Its statement that the receiving state’s rules on the burden and stage of proving torture were important but not determinative was unimpeachable. On the evidence, SIAC was entitled to conclude that requiring Mr Othman to prove the torture allegation would leave a real risk of admission. The subsequent assurances and the independence of the retrial judges did not compel a different factual assessment.
4. Assessment in the round. Because the evidence that the statements had been obtained by torture was compelling, and it was common ground that a real risk of admission would entail a real risk of flagrant unfairness, SIAC was entitled to focus on the admission risk. It had considered the two principal routes to exclusion and the realistically supported possible outcomes. It was not required to analyse speculative possibilities lacking an evidential foundation.
5. Disposition. SIAC had made no material error of law. The appeal was dismissed. The Secretary of State was ordered to pay the respondent’s costs, with permission to appeal to be sought in writing.

1. Court of Appeal (Civil Division) dismissed the Secretary of State’s appeal against SIAC’s determination and ordered payment of the respondent’s costs.
2. Special Immigration Appeals Commission allowed Mr Othman’s appeal on 12 November 2012 against refusal to revoke the deportation order, finding a real risk that statements obtained by torture would be admitted at his retrial.
3. Earlier proceedings included dismissal by the House of Lords of challenges to the earlier deportation decision and a subsequent Strasbourg finding that deportation would violate Article 6.