11:59, July 27 67 0 theguardian.com

2018-07-27 11:59:04
UK waits on legal challenge over death penalty for Isis pair

The Home Office is to suspend cooperation with the US over the possible prosecution of two alleged Isis executioners until a legal challenge launched by the mother of one of the men to quash a decision not to seek assurances over the use of the death penalty is resolved, lawyers have said.

The mother of El Shafee Elsheikh has lodged an emergency claim against a decision by the UK government to provide evidence to support a prosecution in the US against her son and co-accused, Alexanda Kotey, without seeking an assurance that the death penalty will not be used against them if convicted.

Elsheikh and 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 sensitive negotiations between the UK and the US governments over where they should be prosecuted.

Earlier this week, it emerged that the home secretary, Sajid Javid, had told the US attorney general, Jeff Sessions, 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”.

Critics have warned the decision to suspend the normal approach of demanding a death penalty assurance could put the UK’s principled opposition to the death penalty in jeopardy.

The Home Office agreed to a short-term pause in its co-operation with US authorities - a process known as mutual legal assistance (MLA) – but has extended this to the conclusion of legal proceedings brought by Elsheikh’s mother.

A statement from Birnberg Peirce, the law firm representing the woman, said: “It [the UK government] has today undertaken that no further assistance will be provided until determination by a court at first instance – or by court order or agreement by the parties – of the claim being brought by the mother of El Shafee El Sheikh.”

The Home Office will already have shared some information with US authorities but any further information sharing or discussions related to the prosecution will cease until the end of the legal proceedings.

A Home Office spokesperson 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 MLA policy.”

The two other members of the group alleged to have been involved in the killings are Mohammed Emwazi, believed killed in a US airstrike in 2015, and Aine Davis, convicted of being a member of a terrorist organisation and jailed for seven and a half years by a court in Silivri, Turkey, in May last year.

Earlier this week, the lawyers representing Elsheikh’s mother said their client had long made clear her opposition to the actions of Islamic State. “Her request is that the norms of internationally accepted due process form the basis of any trial of accusations concerning her son,” they said.

The firm sent government lawyers detailed grounds as to why they regarded the minister’s decision as unlawful, setting out an urgent timetable for the case to be put before the court and for an application for a full judicial review of the minister’s decision.

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