Abu Qatada and divorce – some parallels ! !

by Robert Whiston    April 27th 2013  

Abu Qatada, alleged terrorist, said to be al Qaida’s spiritual leader in Europe and the most significant extremist preacher in the UK is rated as ”a truly dangerous individual”.   The media is presently all agog with the evil of this character currently on our shores

He arrived in Britain in 1992 having fled to Pakistan from his native Jordan in 1989 and ever since then a variety of governments and a veritable succession of Home Secretaries have tried to deport him.

Abu-terrorAbu Qatada has been described as Osama bin Laden’s right-hand man in Europe and the continent’s spiritual leader of al Qaida.

Left: Abu Qatada and what is thought to be his wife out shopping

Yet forsaking all the Saudi petro-dollars that back al Qaida’s in all its theatres of war Abu Qatada is happy to make the British tax payer fund his legal defence – and this is where the similarity with divorce crashes in.

Abu Qatada was born in Bethlehem in the West Bank and his real name is Omar Mahmoud. He was sentenced in absentia to life imprisonment with hard labour for conspiracy to carry out terror attacks. [1]

The real name of divorce is wealth and property confiscation and these days it has precious little to do with simply dissolving a union. A divorce sentence can also be likened to financial life imprisonment for former husbands. Whether this is with the prospect of ‘parole’ or attenuated in some other way, is dependent on the country involved.

Britain has put Abu Qatada on trial over and over again. His prosecution, quite rightly, has been paid for by government money raised from general taxation. But his defence team has also been paid for by money raised from the hard pressed tax-payer through “legal aid.”

So we have a situation where the Home Office perverts the adage ‘Robbing Peter to pay Paul’ into “Robbing the taxpayer to pay both Peter and Paul.

The same could be said of divorce; the state (Paul) pays the courts, through legal aid funded by the tax-payer) to rob former spouses, usually the husband, who has to repay not just his wife’s legal aid (i.e. Peter) but his own legal fees plus court costs and thus back to the state, Paul. The only loser in all this would appear to be the husband.

Abu Qatada has been fighting extradition for 10 years and many a divorce and some custody cases can last almost as long. As of 2012 he has cost the taxpayer in legal aid bills an estimated £515,778 but, says Teresa May in the House of Commons (April 2013), one should not always believe what one Teresa_Mayreads in the press (but then government sources in the mid 1990s put the cost of single motherhood on the taxpayer at no more than £1 billion when it was actually in excess of £11 billion pa.

Every minister in her position clings onto the ‘rule of law’ mantra and the need to ‘uphold international commitments’ as both a shield and riposte to defend the situation.

Significantly, Teresa May has the money and the to   time to ride out appeals after appeal in order to obtain final justice. Husbands usually don’t have such deep pockets if their ex-wife threatens to take matters to the next judicial level and husbands invariably are unable to take their own case to the next level of appeal to seek justice. Thus, a fudged compromise is reached where the choice is a “take or leave it” offer.

Another ‘dangerous’ fugitive wanted by a foreign power was Astrid Proll, an escaped member of the Baader-Meinhof gang (aka Red Army Faction), who illegally entered Britain on a false passport. She then married Robin Astrid_prolPuttick and became a British citizen and “acquired domicile in England.” [2]

Left: Astrid Proll, pictured outside a London police station soon after her arrest

In the days before the Human Rights Act, she was arrested in 1978 by Special Branch. The seemingly impossible situation of deporting a British citizen was resolved by the unprecedented revoking of her British passport and nationality. The grounds being a fraudulent and invalid passport and that she was a fugitive from foreign justice.  She was then able to be extradited to Germany. Sir George Baker P cited Dicey & Morrs:

  • “It has been held that a domicile of choice cannot be acquired by illegal residence. The reason for this rule is that a court cannot allow a person to acquire a domicile in defiance of the law which that court itself administers.”

 Are there any pointers here for Mrs. May MP ?

Abu Qatada is living in London with his wife and five children aged seven to 18. Is there any expectation that they will deported from their semi-detached house when he is ? Very little one would think  given past experience and then we have the prospect of them living off welfare benefits.

Justice denied

There is a legal maxim which states “Justice delayed is justice denied”. Many Home Office ministers – and Teresa May, in April 2013, is no exception – have vented their frustration at being forced to jump through successive legal hoops and suffer delay after delay.

Many husbands would share Teresa May’s feelings when their cases for divorce and or custody is delayed time and again. However, Teresa May’s can remain relatively detached safe in the knowledge that the rule of law is paramount and due process will be applied and is therefore worth the delay.

Unfortunately, this does not hold true for husbands going through a divorce. They find “due  process” evaporates as soon as the doors to the secret hearing close. They also find that the rule of law is far from paramount with the selective application of sections 25 to 27 of the Matrimonial Proceedings Act 1973.

  • The key statutory provision is section 25 of the Matrimonial Proceedings Act 1973 which  sets out the matters to which the court is to have regard when exercising its powers. The court has a duty “to have regard to all the circumstances of the case”, but its first consideration must be for the welfare of any child of the family under 18. The statute  then lists a number of matters to which the court should pay particular regard. They are not listed in order of priority; different factors may be particularly influential in different cases (but can include continuing financial claims, an order allocating their property [section 25A]), depending upon their facts. 

However, these considerations are “More honoured in the breach than in the observance.”

The net effect is to not only drive down the numbers marrying but thatlegal aid, originally intended to allow ‘the poor’ in society access to justice is being squandered by terrorists, foreigners and divorcées.

Appeals abuse

In February 2001, Abu Qatada was arrested and questioned in connection with a German terrorist cell. At the time there was insufficient evidence against him, and all charges were dropped.  However, tapes of his sermons were later discovered in a Hamburg flat which had been used by the 9/11 hijackers.

After a series of court appearances the UK Court of Appeal, in 2008, ruled against the British government when it concluded that Abu Qatada conviction for terrorism in Jordan (in 1999), was based on evidence extracted through torture.

Tier upon tier

The April lament from Teresa May, the Home Secretary, is that there is layer after layer of court where appeals can be made to delay deportation plus there are the Immigration Tribunals and Commissioners and the Special Immigration Appeals Commission (SIAC). Cases can get taken before the Law Lords (now the Supreme Court) and thence to Europe where cases can become buried for several years.

This is undoubtedly true but it is a regime wholly under the control (or absence thereof) of the Home Office and as such has “grow’d like Topsy.”

To break through this impasse Britain’s Home Secretary says she has struck a “fair trial” deal with Jordan – one that would exclude evidence gained from torture. Divorce ‘trials’ in the UK need the same “fair trial” deal to guarantee perjury will not be tolerated and that impunity no longer exists for false allegations to score points and secure a better financial outcome.

Divorce unaided

Amid all the hoo-hah surrounding the cutting out of legal aid, let us not lose sight of the benefits this will bring. Nearly 20 years ago legal aid consumed about £11 billion per annum in divorce costs.

Later, a report commissioned by the Lords and Commons Family and Child Protection Group in 2000 showed that divorce and family breakdown was costing the British taxpayer more than £15 billion a year – and was rising at such a fast rate that society will soon no longer be able to afford it.[3]

The Lords report included the very substantial financial costs to society of rebuilding the lives of both adults and children and included extra spending on Social Security benefits, legal aid, child psychology services and additional health requirements something omitted from official statists. [4] 

The direct cost for Britain’s 26.2 million taxpayers is an average of £11 per week, the report says. The authors estimate that the true costs then – including indirect costs – could be as high as £30 billion. [5]

Analysis of a). divorce reform and b). legal aid from 1945 onwards shows that reform is only the bullet and that it is amendments to legal aid which actually triggers the propulsion of the projectile. If this is true then the removing of the trigger mechanism can be expected to have a dampening effect on divorce number.

Free no longer

Legal Aid used to be free, i.e. it did not have to be repaid, but over the past two decades it has altered so that it now represents legal advice and representation but at knock-down rates, i.e. a discounted price.

In the early years both parties to a divorce petition could qualify but to reduce costs (and not to disadvantage men !) this was restricted to only the petitioner and not the respondent – and since 80% of petitions for divorce were brought by women they enjoyed legal aid and not their husbands – and officialdom viewed this as being fair.

The effect was that wives could out-spend even wealthy husbands with legal aid repayment requirements being secured against matrimonial property which had to be confiscated in the wife’s favour if the debt was to be repaid.

But even that connivance (or is it just coincidence ?) has not been able to save legal lid from the axe in these economically troubled times. 

Marriage and divorce trends

One can assume that the cost of divorce will have risen – even with the administrative cheese-paring that have been implemented in the years since 2004 – so although divorce  numbers have technically declined in recent years it reflect more the fall in marriage numbers than more secure ones (see graph).[6]

Trend in Marriage and Divorce numbers 1931 – 2011

trends_in_marriage2The population of the UK has increased by 10 million to just over 60 million in 2011. By 1991 the number of marriages had already markedly declined from their high point in 1971. As this diagram shows they have continued to decline to the present day. But what this does not reveal is the trend if the population had remained stable at 50 million. Arguably, the trend line would be distinctly lower than is shown in the diagram, drawing it closer to the divorce line (shown by inserted straight trend line). Would there be more or less divorces ? Would there be enough cohabitation unions to off-set this apparent narrowing ?

The decade of the 2000s saw some 145,000 divorces pa that affected about 150,000 children per annum (i.e. 4 marriages in 10 ended in divorce).

From today’s sources can be gleaned that legal aid bills, in some cases, exceeded what people (former wives) were expecting by more than £30,000 (so if someone was expecting a £25,000 bill it instead came to £55,000. See text below).

Open to abuse

Abu Qatada has not woven this intricate web of delay and cost all by himself but with the help of a very competent legal advisor. That advisor is Ben Emmerson, special rapporteur on counter-terrorism and human rights for the United Nations (UN). [7] He has been has strongly criticised ‘water boarding’ as a form of torture but is apparently unmoved by the inhuman actions of terrorists.

His firm, Matrix Chambers, which boasts Cherie Blair as a member has a client list which includes individuals who are less amenable to the idea of human rights as many might recognise them, including Katherine Gun, GCHQ worker accused of breaching the Official Secrets Act. [8]  The persecution was eventually dropped because the war was publicly divisive.

One has to ask the question heard over and over, who’s human rights ? The criminals or the victims ?

Who has more rights ? The criminal or the victim ? The citizen or the foreigner ?

Who deserve state protection more – the soldiers going into battle or the right to have liberal freedoms at any price ?

Instinct, common sense (call it what you will) tells is the once you step outside the law you have no precious expectation of “rights” (as an outlaw, at least, you cannot bank on all of them any longer). This is because you have forfeited your place in society. To do other than this is to weaken the very fabric of society.

The counter argument, sometimes heard cites the line from Shakespeare’s “Merchant of Venice” that:

  • the quality of mercy is not strained . . . . .  It is twice blest: It blesseth him that gives and  him that takes. . . . .”

Yet this is so abundantly corrupting and perverting that a short comment is worthwhile. The premise is that a contract freely and knowingly entered for mutual gain (to gain the heiress, Portia), can be voided without destabilising repercussions on the whole regime if things don’t work out as planned is fantasy.

No mention is made that such a contract between two gentile would probably be enforced. But as a Jew, Shylock feels none of this ‘quality of mercy.’

He is forced to endure racial discrimination, his daughter’s conversion on marriage to Christianity and he suffers the penalties of not being re-paid or offered any other form of recompense. Not content with this, the legal regime threatens to charge him with murder and to escape this he has to agree to become a Christian and sign a covenant so that on his death half his assets will go to his Christian daughter (read ‘new husband / partner’).

Numerically illiterate

A vein of arithmetic ignorance runs through many a sanctified and esteemed academic report and paper. A classic example is that cited by some academics that no more than 10% of divorcing couples seek the powers and protection of the family court to act for them, e.g. Joan Hunt. But as we have seen above, if that were true then 10% of 145,000 would mean that only 14,500 couples went to court. It follows that on 10% of 150,000 children of divorcing couples, i.e. 15,000 would have their future ordained by the courts.

This is a ludicrous position to adopt given the number of CAFCASS reports made every year, circa 60,000, and the number of residence and contact ‘orders’ recorded by courts, circa 90,000 pa. Such numbers would mean that the UK court system would not be groaning under the strain of the sheer numbers and not have a large backlog.

A report by the Legal Ombudsman points to ‘family disputes’ currently giving rise to more complaints to the Legal Ombudsman than any other type of dispute. Around 18% of all the complaints investigated (approx. 7,500) handled by the Legal Ombudsman in 2011-2012, were about family law with just over half (i.e. 9%) related to divorce [presumably the remainder being occasioned by custody and adoption cases etc, one supposes – RW ].

The cost of legally aided divorce accounted for 27% complaints to the Legal Ombudsman (between 1st April – 31st Dec. 2012).

  •  NB. ‘A BDRC legal benchmarking study recently estimated the average cost of a legally aided divorce at around £1,300 per person.’ (The average cost of a divorce for a husband, i.e. not legally aided would be approx. ten times that amount, i.e. £11,300 – RW).

Some 13% of legal aid clients (1 in 8) who were ‘dissatisfied’ with their lawyers in divorce cases almost double the level in other areas of the law. [9]

A significant minority of divorce complaints (a little under 20%), involved a failure to provide an adequate service. This was often in the form of poor information.[10]  For example:

  1. In one case a woman was charged £15,000 more than had been agreed at the outset, including £4,000 for photocopying, despite asking for proceedings to be stopped.
  2. In some cases bills exceeded what people were expecting by more than £30,000.

The latest legal aid cuts, due to be implemented in Aril 2013, will result in a significant decline in publicly funded divorces and a fall in divorces generally should be expected.

One suspects that without legal aid for immigration cases a similar fall would be seen and government would gain an advantage over how many people abuse the system to stay when not wanted and to ‘over stay’ their permitted visa expiry date.

Billion dollar savings

As the process of quantifying of cost savings begins, the slovenliness and sloppy-thinking in the upper echelons becomes apparent. The report by the Legal Ombudsman is a case in point. He writes:

  • “ . . . . Changes to legal aid mean that an estimated 200,000 fewer cases each year [5] will be eligible for publicly funded legal representation. People who previously were able to fall back on state help to fund their divorces will now have to fund them themselves; many low to middle-income earners will have to manage their legal budgets carefully. There will also be an increasing onus on lawyers to help them do so.”

Normally one would not have any reason to question the ‘200,000 cases a year’ number from such an unimpeachable source. Yet you have to question it because there were only on average only 145,000 divorces in the previous years and the trend has been downwards. In fact the latest ONS statistics for divorce shows that: [11]

  • “The number of divorces in England and Wales in 2011 was 117,558, a decrease of 1.7% since 2010, when there were 119,589 divorces.”

Divorces in England and Wales – 2011 http://www.ons.gov.uk/ons/dcp171778_291750.pdf

So where did the Legal Ombudsman get his figures ? Footnote [5] see above quotation holds the key – the Legal Ombudsman takes his numbers not from ONS or Judicial Statistics but from a BBC website (see http://www.bbc.co.uk/news/uk-21611496).

How, one has to ask, could his report, which according to the Google search page carries a Dec 2012 publishing date, was able to quote a BBC webpage dated 28th Feb 2013 one can only imagine (having once worked on a BBC pilot committee I can attest to the BBC’s unnerving ability to tap into distant veins and themes).

This is the expected divorce reduction as stated on the BBC website and which is cited in the Legal Ombudsman report:

  • “In April, cuts to legal aid will result in 200,000 cases a year of divorce and family breakdown being removed from public funding, meaning more people will be paying privately.”

With only 117,558 divorces in England & Wales there will either be no divorces after 2014 or someone hasn’t done their sums.  [12]

Estimated costs

It would be misleading to suggest that £30,000 could be saved on each and every divorce. Such a proposition would set the annual cost of divorce at a staggering £4.3 billion (£30,000 x 145,000 = £4,350,000,000), or marginally less, at £3.5 billion, if slightly better figures are used (£30,000 x 117,558 = £3,526,740,000).

But as these totals relate only to legal aid spent on behalf of female spouses, it begs the question what are husbands having to pay to counter this legal representation ? They will be paying full market price and so the ‘assumed’ average cost to them of £20,000 does not look extraordinary.

Husbands   117,558 x £20,000 = £ 2,351,160,000

Wives        117,558 x £15,000  = £1,763,370,000

                                                                       £4,114,530,000

This rough calculation indicates the true spend on the divorce industry is really in the region of £4 billion pa. It is claimed that the government wants to cut £350m a year from the £2.2bn legal aid bill  [13] but accessing the extent in family law alone this will probably be easily exceeded.

E N D
Annex
 

Reforms are needed

Source : http://www.independent.co.uk/voices/editorials/leading-article-abu-qatadas-hard-case-is-making-for-good-law-7654713.html

t the nub of the  Abu Qatada fiasco is  Article 6 of the European Convention on Human Rights and the way the European Court of Human Rights operates.

Representatives of the Council of Europe’s 47 members meet today in Brighton to consider improvements  to the operations of the European Court of Human Rights.

The court’s backlog of 150,000 cases shows, change is needed. But revisions to its principles of subsidiarity – the idea that as many decisions as possible should be left to national courts – and “margin of appreciation” – the scope that domestic courts have for interpreting the European Convention on Human Rights – must proceed with great care. They must not be driven by Eurosceptic hysteria about the court’s supposed bias. Its decision last week to approve the extradition of Abu Hamza and four other alleged terrorists to face trial in the United States should give the lie to such silliness.

Russia Responsible for 50% of backlog

Yet reforms are needed to deal with the fact that more than a quarter of the backlog is down to petitions to the court from one country, Russia. Applications to the court should not be considered if they are substantially the same as matters previously considered by the court. Better measures are clearly needed for screening out cases at lower levels.


Footnotes:

[1] In 1999 was sentenced by Jordanian court authorities in his absence

[2] British Nationality Act 1948. She applied under section 6 of the 1948 Act. Section 6 gave an apparently unqualified right to any woman married to a United Kingdom citizen to be registered as a citizen of the United Kingdom. See Puttick -v- Attorney General; Regina -v- Secretary of State for the Home Department ex parte Puttick [1980] Fam 1; [1981] QB 767

[3] Lords and Commons Family and Child Protection Group, pub’d by the charity “Family Matters” 14 Sept 2000 http://www.independent.co.uk/news/uk/this-britain/divorce-costs-each-taxpayer-pound11-a-week-698711.html

[5] David Lindsay and Robert Whiston

[8] In the period before the invasion of Iraq (Jan 2003), a British intelligence officer working as a translator at the highly sensitive GCHQ was charged with leaking a top secret e-mail. She claim she was trying to prevent what was in her opinion the “unlawful war” in Iraq.

[9] “The price of separation: Divorce related legal complaints and their causes” http://www.legalombudsman.org.uk/downloads/documents/publications/The-price-of-separation-LeO-report.pdf  

[10] ‘Rising costs add to divorce woe, says Legal Ombudsman’, 28/2/13 http://www.bbc.co.uk/news/uk-21611496  Chief Legal Ombudsman Adam Sampson.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s