When calculating dates, any litigator knows that precision is key. Home Office lawyers have, however, come under fire this week for apparent inaccuracies in their calculations relating to the deportation of Abu Qatada. Mr Qatada is wanted in Jordan for alleged terrorist activity however on 17th January 2012 the Chamber of the European Court of Human Rights ruled that Mr Qatada could not be deported as there was a possibility that evidence obtained by torture would be used in proceedings against him. According to the European Convention on Human Rights, any party has three months to appeal against a decision made by the Chamber and request that the case be referred to the Grand Chamber. Much, however, hinges on when this three month period should start to run. Unfortunately, on this point the legislation is not crystal clear. Ambiguity arises as to whether one should start to count from the date of the judgment, (the 17th January 2012) or the first date after the judgment (the 18th January 2012).
European case law, combined with basic legal principles work in favour of Qatada’s lawyers’ approach that the first date after judgement is when the three month period starts to run. When assessing ambiguity within legislation, the generally accepted approach is to look at the purpose of the law, and to resolve any ambiguity that still exists in favour of an applicant. In this case as the purpose of the law is to provide clarity as to when a right to appeal expires and as any ambiguity as to when this period should start is to be resolved in favour of an appealing party, it would seem as though the appeal, lodged on 17th April 2012 was made just before the deadline of midnight on that same day. Furthermore, in Praha v Czech Republic and Otto v Germany the Court made clear that time will start to run from the date following the date of the decision, although these cases did concern a different appeal process. Accordingly, Theresa May’s proclamation on 16th April 2012 that Mr Qatada could be deported seems to have been premature, and embarrassingly for the Government, it does appear that the appeal to the European Court of Human Rights has been lodged in time.
It is, however, worth noting that the judgment on 17th January 2012 went largely in Mr Qatada’s favour and so, in the circumstances, one would assume that the Government would be concerned with appealing. This analysis perhaps does not give sufficient weight to the value of delaying deportation for Mr Qatada. An appeal can take months to work its way through the European Court of Human Rights and during this time, Mr Qatada cannot be deported. It may be, therefore, that Mr Qatada’s lawyers would have appealed irrespective of Theresa May’s speech on 16th April 2012 on the basis that the Government had not launched an appeal of its own. Nevertheless it does seem that had these dates been calculated correctly a much beleaguered Government may have saved face, especially as an official at the Council of Europe has reportedly indicated that the appeal was lodged in time.