Theresa May’s treaty with Jordan: this is the game-changer she needs

A day after the Court of Appeal refused her permission to appeal to the Supreme Court in the Abu Qatada case, Theresa May’s announcement today of a mutual legal assistance treaty with Jordan seems finally to turn the case in her favour. Here is the treaty:

The Court of Appeal had upheld the Special Immigration Appeals Commission’s decision that the Home Secretary was wrong in law to insist on her most recent decision to deport Abu Qatada to Jordan (where he faces criminal charges) because there remains a real risk that evidence obtained by torture will be used against him there. This, the European Court of Human Rights ruled last year, would be a “flagrant denial of justice” and therefore a breach of the right to a fair trial enshrined in article 6 of the European Convention on Human Rights.

The Home Secretary might yet get permission from the Supreme Court itself for an appeal (although perhaps that’s less likely now, since the prospect of the treaty coming into force may make the current legal position, in Supreme Court justices’ view, of less general public importance than it seemed only yesterday). But any appeal would probably have been hopeless. In reality, SIAC was loyally applying the principles laid down by the European Court, which it was bound to take account of under section 2 of the Human Rights Act 1998.

Theresa May’s real problem has been this: that in spite of various guarantees and legal changes she argues she had obtained from Jordan, both SIAC and the Court of Appeal concluded that there’s a real risk under Jordanian law that the Jordanian courts would use evidence against Abu Qatada about which, in the Court of Appeal’s words (see para. 49),

the ECtHR made strong findings as to the compelling nature of the evidence that the statements had in fact been obtained by torture.

None of the guarantees she has been able to point to have been enough to create confidence that the evidence will be excluded. That has been the essence of the problem. Until now.

Article 27.4 of the Treaty is the key: if Abu Qatada’s surrender to Jordan is requested under the new, in effect, extradition arrangements established by article 26, then under article 27.4

Where, before the date of signature of this Treaty, a Court in the sending
State has found that there is a real risk that a statement from a person has been
obtained by torture or ill-treatment by the authorities of the receiving State, and might be used in a criminal trial in the receiving State referred to in paragraph 1 of this Article, this statement shall not be submitted by the prosecution nor admitted by the Court in the receiving State, unless the prosecution in the receiving State proves beyond any doubt that the statement has been provided out of free-will and choice and was not obtained by torture or ill-treatment by the authorities of the receiving State, and the Court in the receiving State is so satisfied.

It’s worth noting that this would not only put the burden of proof on the Jordanian prosecution to prove that any statement it relies on in evidence against Abu Qatada was provided freely and not obtained by ill-treatment; it would also require proof to a very high standard indeed – beyond any doubt. This is a very strong provision, and in my view it’s a game-changer for Theresa May.

The remaining questions are, how quickly the treaty can be ratified and brought into effect by the two countries (there’s little doubt Parliament will be able to approve a bill enabling its ratification very quickly), and whether the courts here – and the European Court – will accept the treaty as giving sufficient assurance that the alleged torture evidence will not be used.

I think the courts here and in Strasbourg probably will accept it. Applying the sort of approach set out by the European Court to assurances on the use of torture itself in last years Abu Qatada judgment (see para. 189), it seems to me this treaty passes the test since it contains guarantees that on their face seem effective, that are public, legally binding and made in the context of strong bilateral UK-Jordanian relations. Plus, by the time the case comes to Strasbourg again (as it may well) the UK courts will have tested the treaty’s reliability.

The current potential appeal to the Supreme Court is now of academic interest only – and permission’s less likely to be granted than it was a day ago. But when Jordan makes a request for him under this treaty, in my view a decision by Theresa May to surrender him is likely to be sustainable in the courts – and even in Strasbourg.

It’ll be a long road yet, and Theresa May may not be the Home Secretary who sees him board a plane. But today’s announcement is, I suspect, the turning point in this legal saga.