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Judge fails to release foreign sex offender shock

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“Judge frees illegal immigrant sex offender in human rights shocker”. That’s a story. “Judge leaves failed asylum seeker in jail without charge for potentially two years or more.” That, apparently, is not a story. But it is worth looking at the case, not least to dispel the notion that unaccountable UK judges spend much of their time releasing foreign criminals at the drop of a cat because of the Human Rights Act.

The case is R (Abdulrahman Abunasir) v Secretary of State. Abunasir had been released from an 18-month sentence for an attempted sexual assault by digital penetration, a “very serious and frightening sexual offence, committed against a young woman, while she was on her own in the street, by a man unknown to her and who had been in the country in all probability less than a fortnight” in April 2013.

While in jail he made an asylum claim saying he was a refugee from Syria. Language tests suggested he might actually be from Egypt. Bio tests did not. Served with a deportation notice he argued in November 2013 that he could not be returned to Syria “as to do so would breach the UK’s obligations under the Refugee Convention”. He completed his  sentence on the 13 January 2014 and was immediately detained under s. 36(1) UK Borders Act 2007 pending a decision whether to deport him. He is held under The Immigration Act 1971 Schedule 3 para 2(1).

Abunasir thus fell into a common limbo: foreign nationals whom the government does not want to release onto the streets of Britain but who cannot be deported because of fear of torture back home, for example or simply because of the seriousness of troubles in their own country. Here there was no way of engaging with authorities amid the Syrian chaos to establish Abunasir’s claim to nationality. The result has been he has remained in jail for 18 months beyond his prison sentence. He was deemed as being of high risk of offending, likely to abscond and had no family ties in Britain. Much work was done by investigators and the probation service to resolve the issues – the possibility of release under probation or return to Syria under the Facilitated Return Scheme (which involves the individual disclaiming rights to pursue legal action, which Abunasir seemed for a time willing to do). To no avail.
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BBC4’s Harry Potter and his strangely misleading case of the law

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BBC barrister/broadcaster Harry Potter tells us he has never had to apply for a writ of habeas corpus in his 20-year legal career and he knows of no other lawyer who has. His implication, in BBC4’s legal history series, The Strange Case of the Law, was that the great English innovation of the writ of habeas corpus had not only freed political prisoners, defiant jurors and African slaves; its mere existence ensured no modern Government would seek to hold anyone illegally in detention without charge or trial.

How wrong he is. The case of Yunus Rahmatullah, detained since 2004 at Bagram Airbase, is among many that now spoil this rosy view.

Potter is proud of English law: “a boon we have given the world”. He is one of those Whiggish historians of the British Constitution who produce their tallies of great constitutional events – Magna Carta 1215, Petition of Right 1628, Star Chamber Act 1640, the Habeas Corpus Act 1679Bill of Rights 1689 and imply that their goodness is unalloyed and that they are, once and for all, accepted, embedded and set in stone forever more.

He gallops through the tale: Magna Carta gave us (by implication) habeas corpus, the right for a prisoner to be brought before a court to verify that his detention is lawful. This (despite later enhancements) was not enough to protect individuals taken out of the English legal jurisdiction, particularly to Mont Orgueil Castle in Jersey, a place for 17th century “extraordinary rendition”. There the writ of habeas corpus did not run, and nor was the Common Law rule against torture effective.

In 1679 the Habeas Corpus Act was passed to deal with such abuses. As a result of this (and later reformed versions), according to Potter, it is taken for granted that everyone should know the charge levied against them. Arbitrary imprisonment “is something we hope has been consigned to history”. The implication is that no British Government would act in a way that would open it up to “the Great Writ”. Motherhood and apple pie spring to mind for this cornerstone of our freedoms, so unassailable is the respect for habeas corpus.

Dishonourable
Unfortunately, within days of Potter’s broadcast, the Government was indeed to be found contesting the value of motherhood and questioning the benefits of freshly baked comfort food at the UK Supreme Court. It was fighting a desperate and dishonourable battle to persuade the court that a writ of
habeas corpus should not be upheld on behalf of Yunus Rahmatullah, detained by the US at Parwan, near Bagram, a place where, it seems, the writ of habeas corpus does not run and, it is alleged, the Common Law and international law against torture is ineffective.

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