Mum of ISIS Beatles member says son should be protected from US death penalty
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- Islamic State ISIS is an Islamic extremist terrorist organization controlling territory in Iraq...[+]
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Two suspected Islamic State terrorists should be tried in the UK, not the US, Supreme Court justices have been told.
El Shafee Elsheikh and Alexanda Kotey are accused of belonging to a brutal four-man cell of IS executioners in Syria – nicknamed The Beatles because of their British accents – responsible for killing a number of high-profile Western captives.
The pair were captured in January last year, sparking an international row over whether they should be returned to the UK for trial or face justice in another jurisdiction.
Elsheikh’s mother, Maha Elgizouli, is challenging the decision of then home secretary Sajid Javid to share evidence with American authorities, without seeking assurances the men would not receive the death penalty if convicted in the US.
Outlining her case at the start of a two-day hearing in London on Tuesday, Edward Fitzgerald QC said: “Mrs Elgizouli is solely concerned to protect her son from the death penalty.
“She recognises the enormity of the crimes alleged against her son, Shafee Elsheikh, and against his alleged accomplice Alexanda Kotey.
“She recognises that they should face justice … but she submits that they should face justice in this country, the country of their past citizenship, the country of two of their alleged victims, and the country which has obtained the main body of evidence against them.”
Mr Fitzgerald told a panel of seven justices, led by the court’s president Lady Hale, that the Crown Prosecution Service’s (CPS) decision not to prosecute the pair in the UK – after concluding there was “insufficient evidence” – is the subject of a separate legal challenge.
But he said that, in its response to that challenge, the CPS revealed it is now of the view there is enough evidence to charge Kotey with five offences of murder and eight of hostage taking, and to prosecute Elsheikh for membership of a terrorist organisation.
He added: “It defies all common sense and legal logic that they can be tried in America on our evidence, but they can’t be tried here on our evidence.”
Mr Fitzgerald told the court Mr Javid “privately authorised” the sharing of 600 witness statements gathered by the Metropolitan Police with US authorities under a “mutual legal assistance” (MLA) agreement.
He said that, in bringing her challenge against the “lawfulness and rationality” of Mr Javid’s decision, Mrs Elgizouli was asking no more than that the home secretary should have applied the “settled policy of requiring death penalty assurances in all such cases”.
Mr Fitzgerald added: “Behind that policy lies a long and honourable tradition on the part of this country of rejecting the death penalty as morally wrong in all circumstances.”
The barrister said Mr Javid’s decision, outlined in a letter to then US attorney general Jeff Sessions, was taken against advice from officials that an assurance should be sought.
He said previous home secretaries Theresa May and Amber Rudd had asked for a full death penalty assurance in relation to the pair and the US had offered a “partial” assurance by offering not to use the evidence directly in their prosecution.
However, he said the position started to change in April 2018 after US officials began “voicing their opposition” to providing death penalty assurances to the UK.
The court heard that, during a conversation in May, Mr Sessions told Mr Javid the death penalty “should not be an issue” and that he did not want the UK to “tie his hands” in relation to the use of the evidence.
There was also advice from then British ambassador to the US, Sir Kim Darroch, who said a request for death penalty assurances was likely to “provoke something close to outrage” among members of the Trump administration.
Mr Darroch said there was a risk that ministers such as Mr Sessions, General James Mattis and Mike Pompeo, would “wind the president up to the Prime Minister and, potentially, to hold a grudge”.
Mrs Elgizouli is appealing against a High Court ruling made in January by two leading judges, who concluded that Mr Javid’s decision was not unlawful.
Her appeal is being opposed by the home secretary and the court will also hear submissions from other organisations including the Death Penalty Project and Reprieve.
Mr Javid faced intense criticism after the letter to Mr Sessions was leaked, with MPs accusing him of breaching the UK’s long-standing opposition to the death penalty.