Thursday, 9 August 2012

Othman - High Court ruling

Judgment has been given in R (Othman) v Special Immigration Appeals Commission and others [2012] EWHC 2349 Admin (Hughes LJ and Silber J).  The claimant is in immigration detention pending deportation. On 31 July the court heard, expedited, Othman's combined applications for habeas corpus and for permission to seek judicial review arising from his detention and from the decision of the Special Immigration Appeals Commission (“SIAC”) (Mitting J), given on 28 May 2012, to refuse him bail. The court refused the applications and, in this judgment, set out their reasons.  As Hughes LJ noted - "There has been a prodigious litigation history to this claimant’s position in this country."

Earlier posts on this case are at 6th March 2012 ...... 19th April 2012 ..... 9th May 2012

As chairman of SIAC, Mitting J has now fixed a two week hearing for October of this year at which SIAC will adjudicate upon the factual question whether the obstacle to deportation identified by the ECtHR continues to exist or not.   The British government argues that assurances now provided by the Jordanian Government, plus events which have taken place in Jordan, mean that the claimant can lawfully be deported consistently with the ruling of the European Court of Human Rights.  The real risk that the claimant will face evidence which is the product of torture can now, the Home Secretary argues, be seen not to be present.

See European Journal of International Law - "Diplomatic assurances: Torture and Extradition: The case of Othman (Abu Qatada) v United Kingdom"

3 comments:

  1. ObiterJ can you explain why, in such cases, the claimant is stated as "The Queen"?, i.e.:

    The Queen (Omar Othman)

    ReplyDelete
    Replies
    1. See also the historical article by S A de Smith

      Delete
  2. The High Court has a power known as Judicial Review. Historically, this developed as a means of ensuring that officials, inferior courts (such as Magistrates' Courts) and tribunals operated within the law. Even to this day, judicial review is concerned with ensuring legality in decision-making.

    The right to exercise judicial review was basically a Royal Prerogative power exercised by the judges in the name of the Crown. Particular remedies were developed for judicial review. They were certiorari, mandamus and prohibition. More recently, certiorari became a "Quashing Order" - that is, to quash a decision. Mandamus is now a Mandatory Order and exists to require some action to be taken. Prohibition is a Prohibiting Order and exists to prevent some action.

    Hence, judicial review proceedings are technically brought by the Crown which has lent its power to the true applicant. This is therefore phrased R (Applicant) v XXXX The "R" stands for Regina (i.e. The Queen) so, it is more modern usage to simply write The Queen (Applicant) v XXXX

    (Older terminology was R v XXXX ex parte Applicant).

    ReplyDelete