The Government's seemingly endless battle to deport the radical cleric Abu Qatada went back before the courts today.
Just days after the extremist was re-arrested for allegedly breaching his bail conditions, lawyers for the Home Secretary argued that it would be safe to send him back to Jordan to be re-tried on terrorism charges.
Government attempts to deport Qatada, whose real name is Omar Othman, have been repeatedly thwarted by the courts and yesterday his fate relied on a legal point.
James Eadie QC, representing Theresa May argued that a decision by the Special Immigration Appeals Commmission (Siac) that there was a “real risk” evidence obtained under torture would be used against him was legally flawed.
Qatada has been fighting deportation to Jordan – where he was convicted in his absence in 1999 – for more than a decade. Prime Minister David Cameron declared himself “completely fed up” in November when Siac granted the 52-year-old's appeal and released him on bail.
However, the Court of Appeal was told yesterday that the Islamic preacher, once described as Osama bin Laden's right hand man in Europe, had been taken back into custody on Thursday after officers from the Metropolitan Police's Counter Terrorism Command seized a number of mobile telephones and electronic media items “which led them to believe Mr Othman might have been in breach of his Siac bail conditions”. These include a curfew and severe restrictions on communications with others.
Mr Eadie said that Siac, in considering the issue of whether there would be a “flagrant denial of justice” rejected all of Qatada's grounds for appeal apart from the argument that there was risk that statements obtained under torture from his co-defendants Abu Hawsher and Al-Hamasher could be used against him in a retrial in Jordan. Siac judged there was a risk the burden was placed on a defendant to prove they had been tortured rather than on the prosecution to investigate the integrity of the evidence.
Yesterday the government barrister told Lord Dyson, the Master of the Rolls, as well as two other appeal judges that the Siac decision could not stand because it had taken an "erroneous" view of the position in Jordan and the legal tests that had to be applied when it came to assessing "real risk".
Mr Eadie said the evidence was that Jordan's law "prohibits clearly and expressly the use of torture and the reliance on any statement obtained under duress, including torture".
"There is no real risk of a flagrant denial of justice. The Jordanian courts will consider all the evidence," Mr Eadie told the appeal judges.
However, Edward Fitzgerald QC, appearing for Qatada, counter argued that Siac's finding that there was a real risk of evidence obtained by torture being used at a retrial was "entirely reasonable and rational" as this was the practice in Jordanian courts.
A series of court rulings, he said, had found “a real risk” his co-defendants confessions, obtained as a result of being beaten about the feet, would be admitted in evidence.
He accused the Home Secretary of "seeking to create points of law where none in fact exist", adding that Mr Eadie "has identified no error of law" committed by Siac and was in essence "quarrelling with findings of fact".
Mr Fitzgerald added: "They found there was a substantial ground for there being a real risk that there had been torture."
While Qatada has never been charged with a crime in the UK, he is deemed a serious threat to national security. Since the Siac ruling, officials have been seeking further assurances that he would receive a fair trial in Jordan and security minister James Brokenshire held talks in Amman last week as part of continuing diplomatic efforts.
Yesterday the judges reserved their judgement, which is expected before Easter.