UK gave US information on Isis suspects without death penalty assurances unlawfully, Supreme Court rules

The British government acted unlawfully by handing the US information on two suspected Isis terrorists without assurances that the death penalty would not be used, the Supreme Court has ruled.

Judges allowed an appeal by Maha Elgizouli, the mother of alleged “Beatle” Shafee El Sheikh, on one of two grounds after her case was dismissed by the High Court last year.

She launched the legal challenge after the UK granted a request for mutual legal assistance (MLA) from US authorities over Mr El Sheikh and another alleged member of the terror cell, Alexanda Kotey.

They became the subject of a legal dispute in 2018 as the UK refused to prosecute them, having removed their British citizenship, despite pressure from Donald Trump’s administration.

Ministers said the Crown Prosecution Service (CPS) concluded that there was “insufficient evidence” to prosecute the pair in Britain and so the government decided to hand its information to the US.

The Supreme Court heard that American authorities refused to provide the normal assurance that it would not be used in a prosecution that could lead to the death penalty.

After “many exchanges”, the home secretary - then Sajid Javid - agreed to comply with the request without any assurances in June 2018.

He authorised the sharing of 600 witness statements gathered by the Metropolitan Police in a letter to then US attorney general Jeff Sessions, which sparked intense criticism after being leaked to the press.

The Supreme Court ruled that the decision was unlawful under the Data Protection Act (DPA) because the conditions of transfer to a non-EU country had not been met.

Lord Kerr delivered the judgment remotely because of the coronavirus outbreak on Wednesday.

“The Supreme Court unanimously allows the appeal on the second ground,” he said. “Such processing is only lawful where it complies with the data protection principles in section 34 DPA … 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.”

A separate judgment by Lord Carnwath’s found that the British government’s decision to comply with the US request was “based on political expediency, rather than strict necessity under the statutory criteria”.

When the case was first heard in the High Court, which rejected the appeal, lawyers for Ms Elgizouli said Mr Javid’s actions were influenced by the “anticipated outrage” of members of the Trump administration if the MLA was refused.

The first ground of appeal, which was backed by Lord Kerr but rejected by other Supreme Court judges, was that it violated common law to “facilitate the imposition of the death penalty” in a foreign state.

Mr El Sheikh and Mr Kotey were transferred into US custody in October following Turkey’s invasion of the region of northern Syria where they were being held by Kurdish-held forces.

Birnberg Peirce Solicitors, who represented Ms Elgizouli, said: “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.”

Originally from London, he and Mr Kotey were declared “specially designated global terrorists” by the US State Department ahead of their capture in January 2018, with official documents naming them as members of “The Beatles” and saying the cell had beheaded more than 27 hostages and tortured many more.

Surviving captives have told of their brutality, which included waterboarding, electric shocks, mock executions and crucifixions.

Executioner Mohammed Emwazi, who became known as “Jihadi John”, was killed in a drone strike, while the remaining “Beatle”, Aine Davis, was imprisoned in Turkey.

The legal charity Reprieve intervened in the case, arguing that the Mr Javid's decision undermined wider British diplomatic efforts against executions around the world.

Director Maya Foa 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."

A Home Office spokesperson 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.”