By John Aston, PA
Friday, 1 April 2011
A man jailed for 45 years for plotting to blow up an Israeli airliner won a High Court challenge today against Government refusals to allow his early release.
Two senior judges ruled that Nezar Hindawi, who is serving what is believed to be the longest specific jail term imposed by an English court, was subjected to a "flawed and unfair" decision-making process.
The judges quashed decisions by Justice Secretary Ken Clarke and his predecessor, Jack Straw, refusing to accept Parole Board recommendations that the Jordanian be released.
A further hearing will be held to decide whether the Supreme Court, the highest court in the land, should now make a final ruling, or whether the Justice Secretary should be ordered to reconsider his decision.
Hindawi was sentenced in 1986 for attempting to destroy an El-Al plane flying from Heathrow to Tel Aviv.
He hid Semtex explosive in the luggage of his pregnant fiancee without her knowledge, but the explosives were detected and the plot was foiled - avoiding a potential loss of 375 lives.
Hindawi, 56, became eligible to be considered for parole in 2001 after serving one third of his sentence.
His release date, without parole, falls in May 2016.
Successive Government ministers have rejected his applications for early release, leading to a series of legal battles.
David Blunkett, while home secretary, refused in 2003 to refer his case to the Parole Board.
Then, in November 2009, former justice secretary Jack Straw refused to accept a Parole Board recommendation that Hindawi be released - a decision adopted by his successor, Ken Clarke.
In the latest legal battle, Tim Owen QC, appearing for Hindawi, argued that the refusals were irrational and unlawful.
He told Lord Justice Thomas and Mrs Justice Nicola Davies at London's High Court that the Secretary of State had been "implacably opposed" to Hindawi's release throughout the parole process.
Today the judges agreed that the Secretary of State's decision must be quashed.
Lord Justice Thomas said the Board had recommended release in 2009, but Mr Straw rejected the recommendation.
In 2010 legislation took effect removing that power from Government ministers in the future, but it did not affect the Hindawi decision.
The judge ruled that papers put before the Secretary of State for him to make his decision "did not put a balanced case - they only put the case for rejecting the decision of the Parole Board, and no case as to why he should accept it".
The case for rejecting parole was drafted principally by the official who had had day-to-day conduct of the case in front of the board which the Government lost.
The Secretary of State was therefore not put in a position where he could properly take the decision, said the judge.
"That is contrary to principles of justice that our law has always applied in cases however heinous a crime might be.
"A consequence of the unfair procedure was that the decision made by the Secretary of State was flawed, principally because it did not set out proper reasons for rejecting the finding that the claimant was a credible witness, which the Parole Board made after hearing his evidence.
"His decision must therefore be quashed."
The judge said the Parole Board recommended Hindawi's release after concluding that he presented "no more than a minimal risk to the public and his remaining risk could be safely managed".
It recommended his release and deportation to Jordan.
Hindawi was from a well-to-do Palestinian family whose land had been expropriated by Israel, and the family had become refugees in Jordan.
His early life was surrounded by conflict. He was 12 when the Middle East six-day war broke out and the village where he lived was burned.
The judge said this was highly relevant to him being diagnosed with post-traumatic stress disorder.
He joined the Palestine Liberation Organisation (PLO), became a writer and travelled to London.
It was in London that he began his relationship with Anne-Marie Murphy, the fiancee he sent to board the aircraft with the bomb.
The judge said Mr Straw rejected the parole recommendation after personally considering a submission prepared by officials in the Ministry of Justice recommending rejection.
In his decision letter, Mr Straw told Hindawi that he lacked credibility and he was unable to accept Hindawi's claims that he had rejected terrorism.
In a summary of his conclusions, Mr Straw told Hindawi he had also failed to show he had full insight into his offending behaviour, or "demonstrated an adequate level of remorse and victim empathy".
Mr Straw said he did not consider that the "political science" material he had seen was persuasive evidence that the risk Hindawi posed could be managed by surveillance in Jordan following his deportation.
Despite suffering from post-traumatic stress disorder, Hindawi's ability to "manipulate and deceive" others - a key feature of his offence - had been demonstrated during both the parole process and while serving his sentence.
The Parole Board panel had assessed his risk at the time he committed his offences as "being as high as it could be".
Mr Straw concluded there was "insufficient evidence" that the risk he posed had reduced to the extent where it would be safe to release him.
Lord Justice Thomas dismissed Mr Straw's conclusion as flawed, with "no rational basis".
The judge ruled there had been "an unfair process that did not put the Secretary of State in a position to make a rational decision".
Officials taking part in the process conducted by Mr Straw had argued and lost in front of the Parole Board panel. That compounded the unfairness, said the judge.
The decision letter "did not set out a rational case for coming to a different view on credibility to that reached by the panel which had seen and heard the witnesses; that viciated the assessment of risk."
The judge said Mr Owen had suggested on behalf of Hindawi that there had been a "blind, pig-headed adherence to pre-cast set views" by the Secretary of State.
The judge said: "It might be fairer to describe it as more akin to a submission on appeal by a party who has lost and who resurrects on appeal those very same submissions."
Mrs Justice Nicola Davies agreed.
The judge said what should happen next would be decided at a later date following further legal argument.
The court would have to decide whether the Secretary of State should re-take his decision, or whether the Supreme Court should be asked to decide whether a ruling of the European Court of Human Rights meant he could no longer make the decision.
Later a Ministry of Justice spokesman, said: "The Secretary of State notes the judgment and will consider his options."
The spokesman said it was the MoJ view that the current Justice Secretary no longer had the power to make further decisions on Hindawi's release. The power was removed by the Coroners and Justice Act 2009.
If Hindawi was released from prison, he would be automatically subject to immigration detention and the UK Border agency would begin proceedings to remove him.
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