The British government’s decision to co-operate with US authorities over the prosecution of two alleged Islamic State executioners without assurances that they will not face the death penalty, is to be challenged in the high court on Monday.
The Lord Chief Justice, Lord Burnett of Maldon, and Mr Justice Garnham are to hear an application on behalf of the mother of El Shafee Elsheikh over the legality of the Home Office’s agreement to provide evidence to American prosecutors.
Elsheikh and Alexanda Kotey, who were raised in Britain, are alleged to have been part of an Isis terror cell, known as “the Beatles”, that was behind a series of high-profile killings of US and UK citizens in Isis-held territory, including the British aid workers Alan Henning and David Haines and the American journalists James Foley and Steven Sotloff.
The pair, who have been stripped of their British citizenship, were captured in February by Syrian Kurdish fighters, prompting behind the scenes negotiations between the UK and the US governments over where they should be prosecuted.
In July, it emerged that the home secretary, Sajid Javid, had written to the US attorney general, Jeff Sessions, telling him that the UK “does not currently intend to request, nor actively encourage” the transfer of Kotey and Elsheikh to Britain and there are “strong reasons for not requiring a death penalty assurance in this specific case”.
That letter prompted the intervention of lawyers for Maha Elgizouli, Elsheikh’s mother, who stressed her opposition to the activities of Isis. Gareth Peirce, of the London law firm Birnberg Peirce, asked for suspension of the US/UK agreement on mutual legal assistance.
Home Office lawyers subsequently agreed to suspend cooperation until a high court hearing this week. The case will explore whether the agreement was lawful if it could lead to the imposition of the death penalty.
At the time, the Home Office said: “We have agreed to a short-term pause. The government remains committed to bringing these people to justice and we are confident we have acted in full accordance of the law and within the government’s longstanding [mutual legal assistance] policy.”
Elgizouli’s lawyers maintain that the decision was “a clear and dramatic departure from the UK’s longstanding, international and domestic commitment to oppose the continuing exercise of the death penalty”.
The Home Secretary’s letter raised questions about the UK government’s policy towards the death penalty, as it appeared to contradict the Foreign Office’s support for international efforts to oppose the use of capital punishment.
