The UK home secretary, Sajid Javid, decided to cooperate with US authorities in the prosecution of two alleged Islamic State fighters, without assurances they would not face the death penalty, in order to avoid “political outrage” in the Trump administration, the high court has been told.
The allegation came as the lord chief justice, Lord Burnett of Maldon, and Mr Justice Garnham heard an application on behalf of the mother of El Shafee Elsheikh over the legality of the Home Office’s agreement to provide evidence to US prosecutors.
Elsheikh and Alexanda Kotey, who were raised in Britain, are alleged to have been part of an ISIS terrorism cell, some of whom were known as “the Beatles”, that is thought to have carried out 27 beheadings of US and UK citizens in ISIS-held territory. Those killed included the British aid workers Alan Henning and David Haines, and the American journalists James Foleyand 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.
Javid’s decision not to seek assurances from the US that the two men would not face the death penalty was in defiance of advice from the Foreign Office and senior civil servants, said Edward Fitzgerald QC, who represents Maha El Gizouli, Elsheikh’s mother.
It also broke with the policy of two previous home secretaries, Theresa May and Amber Rudd, who had sought such assurances in the cases of both suspects, the court was told.
Javid’s decision in May to abandon seeking such assurances over the death penalty was “in large part because of anticipated outrage among political appointments in the Trump administration”, Fitzgerald said.
The US attorney general, Jeff Sessions, had initially pressed for Elsheikh and Kotey to be prosecuted in the UK, acknowledging that 600 statements taken by the Metropolitan police’s counter-terrorism command would be needed to convict them.
At a later US Senate panel hearing, Sessions expressed “disappointment that the British are not willing to try the case but had tried to tell [US prosecutors] how to try them”, Fitzgerald said. El Gizouli was not bringing that case “to excuse the appalling acts of which her son is accused”, he added. The issue with which she is legitimately concerned is whether the home secretary has made a legal decision. “It’s relevant that the families of the victims have said they want justice but not the death penalty.”
If imposed, Elsheikh and Kotey would suffer a “gruesome and painful” death through lethal injection. Executions in the US are often long-delayed and delivered through a system “that is unreliable, tortuous and experimental”, Fitzgerald said.
Defending the decision, Sir James Eadie, for the home secretary, said in written submissions that it was accepted that Elsheikh was outside the protections of the Human Rights Act.
Those arguing for assurances over the death penalty faced “insuperable barriers” in showing that there was a common law right that the home secretary had to “protect an individual’s life from the actions of a third party”, Eadie said.
Nor was there any common law prohibition on the provision of legal assistance where it might be used to impose the death penalty in a foreign state, he added.
