London: Radical Muslim preacher Abu Qatada Monday won his appeal against deportation from Britain to Jordan to face terrorism charges after judges ruled that despite Jordanian assurances, the cleric faced risk of trial based on evidence obtained by torture.
Qatada faces allegations of plotting bomb attacks in Jordan.
The ruling by the special immigration appeals commission (Siac) is a setback for Britain`s home secretary Theresa May, who personally secured assurances from the Jordanian authorities that he would not face a trial based on evidence obtained by torture.
She intends to fight the ruling, and the Home Office immediately gave notice of its intention to go directly to the court of appeal.
Justice Mitting and the two other senior judges who allowed Qatada`s appeal said that despite those assurances a real risk remained that he would face a trial based on such evidence.
They said changes needed to be made to the Jordanian criminal code before they could be satisfied that the risk no longer existed.
The Home Office expressed disappointment, saying the judges had applied the wrong test.
"The government strongly disagrees with this ruling. We have obtained assurances not just in relation to the treatment of Qatada himself, but about the quality of the legal processes that would be followed throughout his trial," the Home Office said.
"Indeed, today`s ruling found that the `Jordanian judiciary, like their executive counterparts, are determined to ensure that the appellant will receive, and be seen to receive, a fair retrial`. We will therefore seek leave to appeal today`s decision," it said.
But the Siac ruling makes clear that while the judges agreed the Jordanian assurances meant Qatada would not face ill-treatment or torture, they could not be satisfied that previous evidence obtained by torture would not be admitted at any retrial.
Qatada, whose real name is Mohommed Othman, has waged a seven-year fight against his deportation.
He has previously been described by the British courts as "a truly dangerous individual at the centre in the United Kingdom of terrorist activities associated with al-Qaeda".
The three Siac judges, Mitting, Peter Lane and Dame Denise Holt, have recommended that Qatada now be released on bail but with 16-hour curfew conditions.
No final decision has yet been made to release him.
The ruling is a blow to the home secretary`s renewed strategy of deporting international terror suspects with diplomatic assurances about their future treatment.
May travelled to Jordan to negotiate the fresh assurances, but without the legal backing of British judges the deportation cannot go ahead.
The radical cleric has been released for three brief periods since he was first incarcerated in Belmarsh prison in 2002, under emergency anti-terror legislation.
When he was released this year he faced the most draconian bail conditions ever imposed in Britain, including a 22-hour curfew.
Qatada is regarded as having wide and high-level support among Islamist extremists.
The al-Qaeda leadership made threats this year in relation to his possible deportation.
The home secretary came close to deporting Qatada in April when she tried to get him on a plane by certifying his opposition to his removal as "manifestly unfounded" and putting him on a fast-track to the airport.
But confusion over the deadline for Qatada to appeal against a Strasbourg human rights ruling thwarted the attempted deportation.
The European court of human rights ruled in January that there was a real risk Qatada would face a retrial based on torture-tainted evidence from his co-accused, Abu Hawsher and Al-Hamasher, over charges relating to bomb attacks on American and Israeli targets in Jordan in the late 1990s.
The key passage of the Siac ruling upheld that judgment: "The secretary of state has not satisfied us that, on retrial, there is no real risk that the impugned statements of Abu Hawsher and Al-Hamasher would be admitted probatively against the appellant."
"Until and unless a change is made to the (Jordanian) code of criminal procedure and/or authoritative rulings are made by the court of cassation or constitutional court which establish that statements made to a public prosecutor by accomplices who are no longer subject to criminal proceedings cannot be admitted probatively against a returning fugitive and/or that it is for the prosecutor to prove to a high standard that the statements were not procured by torture, that real risk will remain," the judges said.
"For the reasons given on the article 6 issue (on torture), we are satisfied that the secretary of state should have exercised her discretion differently and should not have declined to revoke the deportation order. Accordingly, this appeal is allowed," they concluded.