Isil 'Beatles': Mother wins court challenge after Government shared evidence with US without death penalty assurance

Maha Elgizouli, mother of El Shafee Elsheikh, alleged Home Secretary acted unlawfully by sharing evidence about surviving executioners

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El Shafee Elsheikh, pictured in March 2018
El Shafee Elsheikh, pictured in March 2018 Credit: Hussein Malla/AP

Sajid Javid put “political expediency” before the law when Britain handed the US evidence about the Isil “Beatles” fighters after waiving opposition to the death penalty, the Supreme Court have said.

The former Home Secretary suffered an embarrassing defeat in the country’s highest court as a legal challenge, triggered by revelations in The Daily Telegraph, was allowed on data protection grounds. 

Mr Javid had sought to ensure that two captured members of the notorious execution squad, Shafee El Sheikh and Alexanda Kotey, did not face trial in the UK by offering to assist US prosecutors in 2018.

He authorised the release of material including 600 witness statements compiled by Scotland Yard, under a "mutual legal assistance" agreement. 

In a letter to Jeff Sessions, the US Attorney General, Mr Javid controversially broke with long-standing tradition by refusing to seek “assurances” the pair would not face execution.

There followed a major political row when details of the correspondence were revealed by this newspaper - leading Maha Elgizouly, El Sheikh’s mother, to mount a legal challenge.

On Wednesday, seven justices unanimously agreed the Home Secretary had broken data protection laws by disclosing vast amounts of personal information without proper safeguards.

It could potentially leave the UK unable to offer cooperation with any US prosecution against the two men - currently being held by American forces in Iraq - without first satisfying the court that it has done so in a lawful manner. 

The Supreme Court judgment was handed down using video conference technology for the first time due to the ongoing concerns about the spread of coronavirus. 

Setting out his lead ruling on webcam, Lord Kerr said: "The information in question was transferred without being based on sufficient safeguards and without the requisite assessment of whether special circumstances justifying the transfer existed.

"The decision was based on political expediency, rather than strict necessity under the statutory criteria.

"It was consequently unlawful under the (Data Protection Act)."

The capture of the men in 2018 led to disagreements internationally over where they should face justice for their alleged involvement in the execution of high-profile western hostages. 

British ministers feared there was not sufficient evidence to ensure both of the alleged terrorists were successfully prosecuted and lobbied for their trial to be held in the US.

However, the Crown Prosecution Service (CPS) is currently in the process of reconsidering whether it has enough evidence to build a strong legal case against El Sheikh. 

An arrest warrant was issued for Alexanda Kotey in 2016 in connection with five counts of murder and eight counts of hostage-taking.

The judgment also raised the possibility that both could yet be brought back to face trial in the UK. 

Lord Carnwath said in his judgment: "It seems that circumstances may have changed since the hearing of the appeal, in that the Crown Prosecution Service is understood to be reconsidering the possibility of a prosecution in this country."

Lord Reed, the President of the Supreme Court, pointed to one section of Mr Javid's letter which referred to the US having "additional" terror offences not available under UK law, adding: "This letter implies that the problem faced by the CPS was not merely that there was insufficient evidence to convict Mr Elsheikh of any offence under UK law."

A CPS spokesman said: "The police investigation is continuing.

"Once the investigation has concluded and any additional material has been provided to the CPS, our specialist prosecutors will review all the evidence in line with our legal test."

An injunction was put in place before British authorities were able to share all evidence about the men with the US, with the Supreme Court expected to make further orders at a later date. 

Birnberg Peirce Solicitors, which represented Ms Elgizouli, said in a statement: “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.”

The quartet of executioners became known as the Beatles due to their British accents and are thought to have been behind as many as 27 beheadings.

Kotey and El-Sheikh were captured in January 2018 as Isil’s grip on Syria finally began to weaken following years of barbaric rule. 

Both are believed to have had their British citizenship revoked.

A spokesman for the Home Office said: “The Government’s priority has always been to maintain national security and to deliver justice for the victims and their families. This has not changed.

“We are clearly very disappointed with today’s judgment and are carefully considering next steps.”