Mother of ISIS Beatle ‘George wins Supreme Court challenge after Government shared evidence with US without assurance that he wouldn’t face death penalty
- El Shafee Elsheikh and Alexanda Kotey are accused of being ISIS terrorists
- The pair were captured in January 2018 by Syrian Democratic Forces
- Sajid Javid, then Home Secretary, shared evidence with US authorities
- Elsheikh’s mother, Maha Elgizouli, appealed against High Court judgement that Mr Javid’s decision to transfer personal data was permissible
- Today, Supreme Court judges called Mr Javid’s decision ‘unlawful’ and ‘based on political expediency’ rather than meeting Data Protection Act criteria
The Supreme Court has today overruled the UK Government’s decision to share evidence of a suspected ISIS terrorist and a second alleged member of his cell with US authorities without assurances they would not face the death penalty.
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 2018, 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, brought a challenge to the decision of then Home Secretary Sajid Javid to share evidence with American authorities without seeking assurances the men would not be executed if convicted in the US.
Today, a panel of seven Supreme Court justices – led by retired president Lady Hale – called the Government’s decision to share intelligence with the US ‘unlawful’.
Giving the lead ruling, Lord Kerr said former Home Secretary Sajid Javid’s decision to transfer their personal data was ‘based on political expediency’.
El Shafee Elsheikh (left) and Alexanda Kotey (right) are accused of belonging to a brutal four-man cell of IS executioners in Syria responsible for killing a number of Western captives
Elsheikh’s mother Maha Elgizouli (centre, with El Shafee right and son Mahmoud left), brought a challenge to the decision of then Home Secretary Sajid Javid to share evidence with US authorities without seeking assurances the men would not be executed if convicted in the US
He said that Mr Javid’s behaviour did not meet ‘statutory criteria’ and argued the transfer would be ‘lawful if it is based on what is called an adequacy decision’.
Birnberg Peirce Solicitors, which represented Ms Elgizouli, said: ‘Ms Elgizouli thanks the court for its careful consideration of her appeal and recognises the difficult issues it raises. She has always expressed her belief that her son, if accused, should face justice; and that any trial should take place in the UK.
‘She has been asking since November 2018 for the CPS to conduct a review of the claim that there was insufficient evidence for him to be charged and tried in the UK – a review that the CPS now says should be completed by April 2020.’
In a statement after the ruling, Maya Foa, director of Reprieve, a human rights organisation which intervened in the case, said: ‘This is not only a landmark judgment, but an excellent result for anyone who cares about the rule of law and Britain’s long-standing opposition to the death penalty.
‘By sharing information without first seeking – and securing – assurances that the death penalty wouldn’t be in play, this Government acted unlawfully.
The pair were captured in January 2018, sparking an international row over whether they should be returned to the UK for trial or face justice in another jurisdiction (Elsheikh)
Kotey and Elsheikh are said to have been members of the cell that also included Mohammed Emwazi, known as Jihadi John (left and right), who was killed in a US air strike in 2015
Aine Davis is said to have also been a member of the so-called ISIS Beatles. Davis was convicted for terrorism offences in May 2017 and jailed in Turkey
‘In doing so they undermined the UK’s strong assistance for people facing capital punishment across the globe, and so put hundreds of lives at risk.’
Last July, Ms Elgizouli’s lawyer Edward Fitzgerald QC told the Supreme Court that she ‘recognises the enormity of the crimes alleged against her son, Shafee Elsheikh, and against his alleged accomplice Alexanda Kotey’.
Mr Fitzgerald told the court that the Crown Prosecution Service had previously concluded there was ‘insufficient evidence’ to prosecute the pair in the UK.
However, he said there was a ‘historical decision in February 2016’ that there was 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.’
The Home Office told MailOnline it is ‘clearly very disappointed with today’s judgment’ and is ‘carefully considering next steps’.
‘The Government’s priority has always been to maintain national security and to deliver justice for the victims and their families,’ it added.
Lord Kerr said former Home Secretary Sajid Javid had behaved unlawfully, arguing his decision to transfer the suspects’ personal data was ‘based on political expediency’
In June 2018, Sajid Javid (right) authorised the sharing of 600 witness statements gathered by the Metropolitan Police under a ‘mutual legal assistance’ agreement in a letter to then US Attorney General Jeff Sessions (left). Mr Javid faced intense criticism after the letter was leaked, with MPs accusing him of breaching the UK’s opposition to the death penalty
Mr Javid was accused of making a ‘secret and unilateral’ change to Britain’s policy of seeking assurances the death penalty will be dropped for suspects facing trial in the US to avoid causing ‘outrage among certain political appointments in the Trump administration’
Why Sajid Javid’s letter to the US Government was controversial
Sajid Javid wrote to Jeff Sessions in 2018, in which he signified Britain’s intention of agreeing to the transfer of Elsheikh and Kotey to Guantanamo Bay detention camps indefinitely.
He appeared to break with past UK policy of seeking US assurances that both suspects would not face the death penalty if tried and convicted.
Mr Javid, then Home Secretary, was accused of making a ‘secret and unilateral’ change to Britain’s stance by MPs and human rights lawyers.
The High Court heard in October 2018 that Mr Javid was intent on not ‘outraging political appointments in the Trump administration’.
Sir James Eadie QC, representing the Home Office, argued that Mr Javid’s decision was made ‘after the most careful consideration’, and in circumstances where the ‘only prospect of Elsheikh facing justice’ was if he were tried by a federal court in the United States.
He described the activities of the so-called Beatles, including producting brutal propaganda videos that depicted the beheading of nearly 27 victims, as among the worst terrorist crimes.
Ms Elgizouli appealed against a High Court ruling made in January by two leading judges, who concluded Mr Javid’s decision was not unlawful.
In June 2018, Mr Javid authorised the sharing of 600 witness statements gathered by the Metropolitan Police under a ‘mutual legal assistance’ agreement in a letter to then US Attorney General Jeff Sessions.
Mr Javid faced intense criticism after the letter to Mr Sessions was leaked, with MPs accusing him of breaching the UK’s opposition to the death penalty.
Then Prime Minister Theresa May supported Mr Javid’s decision, which was also backed by Prime Minister Boris Johnson when he was Foreign Secretary.
Kotey and Elsheikh were captured by the Syrian Democratic Forces in 2018.
They are said to have been members of the cell that also included Mohammed Emwazi, known as Jihadi John, who was killed in a US air strike in 2015.
Elsheikh, who was born in Sudan but grew up in London, confessed to helping the terror group ransom Western captives back to their families.
He and Kotey are accused of torturing their captives.
Elsheikh is said to have earned a reputation for water-boarding and mock executions, but has denied murdering the hostages.
Emwazi beheaded or participated in the beheading of US journalists James Foley and Steven Sotloff, as well as UK humanitarian aid workers David Haines and Alan Henning, US aid worker Peter Kassig, Japanese contractor Haruna Yukawa, Japanese journalist Kenji Goto, and 22 members of the Syrian Armed Forces in 2014-15.
He was killed in a US drone strike and Aine Davis was jailed in Turkey.
All four were radicalised in the UK before travelling to Syria.
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