Egyptian officials warned human rights barrister Amal Clooney that she risked arrest after identifying the same serious flaws in its judicial system that subsequently contributed to the conviction of three al-Jazeera journalists now jailed in Cairo.

In an interview with the Guardian after their appeal hearing this week, Clooney, a lawyer for one of the trio, said they were victims of the same flaws that she earmarked in a February 2014 report about Egyptian courts.

Written before Clooney became involved in the al-Jazeera case, officials deemed the report so controversial that they threatened her team with arrest should they have tried to present its findings inside Egypt.

“When I went to launch the report, first of all they stopped us from doing it in Cairo,” Clooney told the Guardian. “They said: ‘Does the report criticise the army, the judiciary, or the government?’ We said: ‘Well, yes.’ They said: ‘Well then, you’re risking arrest.’”

The report, compiled on behalf of the International Bar Association, said Egypt’s judicial system was not as independent as it could be. It pointed out that officials in the ministry of justice have wide powers over nominally independent judges, and highlighted the control the government can exert over state prosecutors.

Among other recommendations, Clooney and her co-authors suggested ending the practice that allows Egyptian officials to handpick judges for certain politicised cases. “That recommendation wasn’t followed, and we’ve seen the results of that in this particular case where you had a handpicked panel led by a judge who is known for dispensing brutal verdicts,” Clooney. said “And this one was no different.”

The three journalists – Peter Greste, Baher Mohamed, and Mohamed Fahmy, whom Clooney represents – were initially sentenced to between seven and 10 years in jail last June by the controversial Egyptian judge Mohamed Nagy Shehata.
Baher Mohamed, Mohamed Fahmy and Peter Greste in court in Cairo
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Baher Mohamed, Mohamed Fahmy and Peter Greste in court in Cairo in March. Photograph: Heba Elkholy/AP

Shehata became notorious during the trial for rarely taking off his aviator sunglasses, mocking Fahmy’s fiancee, and for cracking a joke about World Press Freedom day. A few months later, he also sentenced to death 188 people, Clooney said, “in one mass trial which didn’t distinguish between each defendant’s criminal responsibility”. Shehata failed to respond to several requests for interview.
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At the trio’s appeal on New Year’s Day, a new judge refused to throw out the case, but agreed to a retrial, after recognising problems with the initial process. But Clooney fears those flaws – which included the presentation of a Gotye song, footage of a trotting horse, and pictures of Greste’s parents as evidence of the trio’s guilt – are so serious that they will compromise the integrity of any second hearing.

“If the idea is: well, there were errors and now there’s going to be a retrial, but then the retrial operates on the same basis as the original one, that doesn’t really mean much,” Clooney said. She has waived most of her usual fees, and is paid directly by Fahmy without the support of al-Jazeera. “I don’t see how the prosecution can proceed again in a trial process even if the judges were to be constituted properly this time around. I don’t see how they could fix the lack of evidence.”

As a result, Clooney has concluded “that we have to continue and double our efforts to achieve his release in other ways. Unfortunately we have to conclude that we can’t rely on these Egyptian court processes to achieve a fair or swift result.”

For Baher Mohamed, the third detainee who holds only an Egyptian passport, his fate largely depends on those court processes, with the prospect of a presidential pardon dwindling. But Clooney’s client, Fahmy, a Canadian citizen, and his Australian colleague Greste, have another option: deportation to their home countries.

Fahmy and Greste have applied to Egypt’s chief prosecutor to demand they be sent to Canada and Australia respectively under the terms of a new presidential decree that provides foreign detainees with such a route, and which seems to have been tailored for their case.

The vague and unprecedented nature of the decree has led to doubts about how it would be used in practice. But based on her communication with relevant officials in Egypt and Canada, and on her experience of international law, Clooney is hopeful that deportation is a real option. “There are many different ways in which the transfer from Egypt to Canada can occur, and as long as there is a genuine commitment on both sides, I see no reason why a transfer can’t happen in fairly quick terms.”

Inside Egypt, Fahmy’s appeals team was led by an Egyptian lawyer, Negad Boraie, with contributions from Clooney that related to international law. But outside Egypt, it is Clooney who is spearheading attempts to secure Fahmy’s deportation, and hopes next week to meet the Canadian foreign minister, John Baird, to try to convince him to expedite the process.

“We are very much hoping that the Canadian and Egyptian officials we have contacted will engage with us fully to ensure that Mohamed is involved – through his counsel – in the discussions and that a fair outcome can be achieved as soon as possible.”