Abu Qatada, Marian McGlinchey, and Due Process

We welcome this guest post from Dónal Kearney.  Dónal is a Law graduate of Cambridge University. He has worked as an intern with the CAJ Equality Office and is currently a Legal Support Project volunteer at the Law Centre (NI).

Abu Qatada, Marian McGlinchey, and Due Process

Abu Qatada al-Filistini is a “truly dangerous” man. He was titled Bin Laden’s “right hand man in Europe” by a Spanish judge. Despite this analysis, and the overwhelming security threat apparently posed by his release from custody, the evidence obtained by British security forces has been insufficient to warrant a criminal charge. This had left Abu Qatada in a very vulnerable position, whereby his liberty was left unprotected by the British judicial system. In February, Marian McGlinchey’s right to liberty was called into question. After her involvement in the Provisional Irish Republican Army 1973 bombing of the Old Bailey, she too had been considered a threat to UK national security.

We are constantly reminded that the United Kingdom prides itself on its promotion of the Rule of Law; not just within its borders, but across the world. Often, the UK Foreign Secretary will appeal to other States to improve their human rights records. Consecutive governments boast how the UK is seen as a stalwart of ‘western’ civilization. For a State with such a proud history of domestic justice and democracy, Abu Qatada’s detention without charge was highly questionable. Now that he has been released and subjected to stringent bail conditions, in line with a ruling of the European Court of Human Rights, this decision has provoked uproar from the Great British public, as represented by the Daily Mail editorship.

The problem in the Abu Qatada case was that the Crown Prosecution Service could not compile evidence sufficient to charge this militant Islamist. Unfortunately for ‘the Great British public’, an individual is innocent until proven guilty in the UK, and, furthermore, the burden is on the State to prove that guilt. Otherwise, nobody should be convicted; according to the Belmarsh case, nobody should be incarcerated long-term in the absence of a charge. In January, Colin Duffy was found innocent of the Massareene Barracks murders according to due process. Therefore, he must walk free. Without this system in place in the United Kingdom, the potential for miscarriage of justice is too high.

Marian McGlinchey (née Price) has returned to national headlines this week in relation to her detention. As with Abu Qatada, the threat posed by McGlinchey has been earmarked as having “increased significantly” by Secretary of State for Northern Ireland, Owen Paterson. She was moved from solitary confinement in HMP Maghaberry, where she was the only female prisoner, to the women’s facility at HMP Hydebank Wood. The move was brought about in light of health concerns. It seems that, as with Brendan Lillis, an element of compassion drove this decision. However, it is not only the manner of her detention being debated, but the reasoning behind it.

Section 9(2) of the Life Sentences (Northern Ireland) Order 2001 states that the Secretary of State may revoke a licence “where it appears to him that it is expedient in the public interest to recall that person”. There is dispute over the legality of this authority, however. Kevin R Winters & Co. Solicitors, representing McGlinchey, claims that she was not even subject to a licence when taken into custody in May 2011 – having been pardoned in 1980 by a Royal Prerogative of Mercy – and so is unlawfully detained at present. Her solicitors also contest her connection to the Massareene Barracks case; she was interviewed in connection with that case and subsequently released, but has now been charged despite a lack of new evidence.

It seems that we will have to wait for these claims to be heard in court before determining whether or not the Secretary of State did indeed have the authority to recall Marian McGlinchey into custody. If not, the allegation of “internment” by Monsignor Raymond Murray may just be justified. In such an eventuality, the validity of the charges against McGlinchey must be upheld to ensure that, considering the evidence, the Public Prosecution Service’s case is watertight. For to imprison an individual without due process is to flout the Rule of Law. We must demand better from Westminster, and especially from our local Executive at Stormont. I do not underestimate the threat of organised and vicious terrorism, but it must be contained in a consistent and lawful manner. Otherwise, a tyrannical State can claim no moral, nor any other, superiority over those “dangerous” individuals who attack it.