Lawyers for the home secretary, Theresa May, have launched her latest attempt to deport the radical Islamist cleric Abu Qatada, claiming a British judge earlier erred in law when he ruled that the move would be a flagrant denial of justice.

James Eadie QC told the appeal court a London court had been ill-placed to determine whether Qatada faced a real risk of a retrial in Jordan based on evidence obtained by torture.

He told three appeal court judges the principle of a flagrant denial of justice was untested, and this was the first case since the principle was established 22 years ago.

Eadie argued that the original ruling last November by the special immigration appeals commission (Siac) blocking Qatada’s deportation had failed to take account of fresh developments. Changes to the Jordanian state security court, and the fact that the “eyes of the world” would be on the case, meant it was far less likely evidence based on torture would be used against Qatada, he argued.

“Both the executive and the judiciary in Jordan will do everything to ensure [the case] was fair because the eyes of the world will be on them,” Eadie said.

Lord Dyson, the master of the rolls, told Eadie he would have to demonstrate that the Siac had made an error of law in blocking Qatada’s removal, and reminded him that torture was endemic in the state security system in Jordan.

The one-day appeal court hearing, before Dyson and two other senior judges in London, comes after Qatada was rearrested on Friday and taken back to prison for allegedly breaching his strict bail conditions, which include a 16-hour curfew. Mr Justice Irwin made an interim ruling on Saturday that he should be taken back into custody after hearing “strong prima facie evidence” that he had allowed mobile phones to be switched on in his north-west London house.

Lawyers on behalf of the home secretary, who complained at the weekend that the European court of human rights had constantly “moved the goalposts” in deportation cases such as Qatada’s, are trying to convince the three appeal court judges that the decision to block his removal was legally flawed.

It is 11 months since May told MPs that “we can soon put Qatada on a plane and out of our country for good”.

The case is at the centre of political debates over the future of human rights legislation, with its clash between Britain’s commitment to the rule of law and its abhorrence of the use of torture and the fate of a radical Islamist described by judges as “Osama bin Laden’s right-hand man in Europe”.

The home secretary may take the case to the court of appeal only on the basis of a point of law. If it is rejected after the one-day hearing, then Qatada’s lawyers are likely to apply for his strict bail conditions to be lifted.

The Siac will hold a full hearing on 21 March to consider the alleged breach of bail and whether it should be revoked.

If the appeal court case fails to clear the way for Qatada’s removal to Jordan, the home secretary has the option of imposing a two-year terrorism prevention and investigation order – a form of control order – on him. But that would mean her chances of getting him out of the UK before the general election would have almost disappeared.

The Home Office security minister, James Brokenshire, flew to Jordan last week in another effort to clinch a deal that would allow Qatada, whose real name is Omar Othman, to be deported.

Brokenshire met the Jordanian prime minister, Abdullah Ensour, on Wednesday as part of talks with the authorities in Amman to secure sufficient human rights assurances to enable his deportation to go ahead. After the meeting, Ensour said guarantees of a fair trial had been offered on more than one occasion. “Jordan provides the conditions for a fair trial for any person to be tried on its territory,” he said.

A Home Office spokesman said the appeal court challenge and the talks with Jordan were part of a “twin-track” approach. “The government is determined to deport Abu Qatada to Jordan. We are maintaining our consistent approach to work closely with the Jordanian government to pursue all available options to deport him, in parallel to our appeal to the court of appeal,” said a spokesman.

May is attempting to overturn a ruling last November by Mr Justice Mitting, sitting at the Siac, that assurances offered so far by Amman were insufficient to prove that evidence obtained by torture would not be used in a retrial of Qatada for two bomb attacks in 1998 that he has already been convicted in absentia of being involved in.

Qatada, who was first detained in Britain as an international terror suspect in 2002, was released on bail last November to a house in north-west London, under a 16-hour curfew and strict restrictions on who he can meet and communicate with.

The Siac ruling said there remained a real risk that statements by two alleged co-conspirators, Abu Hawsher and al-Hamasher, which had been obtained by torture, would be admitted in his retrial by the state security court.

Mitting said that risk remained until there was a change to the Jordanian code of criminal practice and/or a ruling by its constitutional court that such torture-tainted evidence could not be used. The only other alternative was for the Jordanian prosecutor to prove “to a high standard that the statements were not procured by torture”.

The ruling followed a decision by the European court of human rights, made final last May, that while Qatada did not face a risk of being tortured if returned to Amman he did face the real possibility of a trial based on-torture tainted evidence. The Strasbourg judges said that would amount to a “flagrant denial of justice”. May did not appeal against that ruling.

Abu Qatada faces fresh deportation attempt by Theresa May – The Guardian
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