Who is right on the ECHR – May or Qatada?
Who is right? Did Abu Qatada‘s lawyers register an appeal at the ECHR grand chamber in the nick of time? Did the Home Office think the deadline was earlier than it actually was? On such things rests whether we are in for a minor flurry or a “Thick of It” moment.
Theresa May was categorical in her interview just now with Norman Smith on BBC News 24 that the ECHR has discretion to look at an appeal even if it is after the three- month deadline. A legal expert I’ve just spoken to thinks that isn’t right.
More to the point, the fundamental question in this procedural row is: when does the clock start ticking for the three-month appeal window? Theresa May says there is absolutely no question that if, as in this case, a judgement is passed in Strasbourg on 17 January, then the window for appeals closes at midnight on the evening of 16 April. Does it?
Interestingly, the window for taking a case to the ECHR is that you must register the case “six months from the end of domestic proceedings”. BUT the ECHR lays down that the clock starts ticking the DAY AFTER the domestic proceedings finish.
If the same time counting approach applied for appeal cases, and you have to say it would be a bit odd to operate two separate stopwatch approaches, then Abu Qatada’s very experienced defence team, QC Edward Fitzgerald and solicitor Gareth Peirce, may have got it right.
The Home Office says they’re quite sure they’ve got it right and that there were verbal reassurances given by the ECHR about the deadline as recently as Monday.
What’s the overall impact? It drags things out potentially and that could mean that a judge looks more benignly on Abu Qatada’s bail application – the government’s argument for putting him behind bars was that deportation could be (relatively) soon. If the a possible deportation date recedes further into the distance a judge might think Abu Qatada is not such a “flight risk”.
So, it may only buy the Qatada team some time and protract the entire process but that is a success in this exercise and either an irritant or a major embarrassment for the Home Office, depending who is right.
Follow @GaryGibbonBlog on Twitter.