UK dropped death penalty assurances in two previous cases before Isis jihadis, Home Office admits

The government dispensed with its normal practice of seeking assurances about the death penalty in two other incidents prior to the ‘jihadi Beatles’ case, the Home Office has admitted.

Security minister Ben Wallace said the two previously unknown cases had occurred between 2001 and the present, but declined to give further details.

Hours later, in what one human rights activist called “a truly shameless statement”, the government marked Wednesday’s World Day Against the Death Penalty by claiming it had a commitment “to oppose the use of the death penalty in all circumstances as a matter of principle.”

The existence of the two previous cases has also been revealed just days after a court heard that fear of upsetting Donald Trump’s administration led home secretary Sajid Javid to “give up” on seeking US assurances about the fate of Isis militants El Shafee Elsheikh and Alexanda Kotey.

The ‘jihadi Beatles’ case had been considered an unprecedented departure from the British government’s longstanding practice of insisting on assurances that a defendant will not face the death penalty before the UK helps foreign prosecutors with either extradition or evidence.

The admission that these death penalty assurances were in fact waived on two earlier occasions has the potential to raise serious questions about the UK government’s commitment to opposing capital punishment.

Caroline Lucas, the Green Party MP whose parliamentary question led to the government's admission, said: “Ministers must urgently explain the reasons they failed on two more occasions to seek assurances that people would not be killed by foreign states, and allow those involved to seek justice.

“The UK abolished the barbaric practice of capital punishment more than 50 years ago. It's deeply disturbing to think successive governments have effectively outsourced the death penalty to other countries.”

Mr Wallace revealed the existence of the two previous cases on Tuesday evening, in a written answer to Ms Lucas’s question, asked in July, about whether there had been other instances of death penalty assurances being waived.

Mr Wallace wrote: “A review of available records (dating back to 2001) has been undertaken and I can confirm that this has occurred on two previous occasions that have been identified, under successive governments.”

Explaining that he would not be providing any detail about the two cases, Mr Wallace added: “Due to the potential to harm on-going criminal investigations or future prosecutions, and the confidentiality attached to mutual legal assistance, it would not be appropriate to share further information.”

When The Independent asked a series of questions about the two cases, the Home Office refused even to say when they had occurred or whether they involved extradition or the sharing of evidence.

It remains unclear whether the cases occurred when Theresa May was home secretary between 2010 and 2016, or whether they occurred when the department was led by other Conservatives or by Labour politicians during the premierships of Gordon Brown and Tony Blair.

A Home Office spokesman said: “As the security minister said, we are not going to be providing any more information about the previous two cases because of the confidentiality and sensitivities around them.

“The Home Office position remains unchanged: we have a longstanding opposition to the death penalty, and our previous statements have made that quite clear.”

Ms Lucas, however, told The Independent: "It is unjustifiable for the Government to reveal so little about these two further cases. Ministers have undermined the UK's international reputation for upholding human rights, and put people at serious risk. The public deserves to know why they were not told about these cases at the time."

Ms Lucas was backed by Allan Hogarth, Amnesty International UK’s head of policy, who told The Independent: “Up until Sajid Javid’s jaw-dropping letter in the summer, the UK’s opposition to the death penalty around the world was generally assumed to be a firm and consistent government policy.

"If there are other cases besides that of El Shafee Elsheikh and Alexanda Kotev where the UK has compromised its policy and principles, we should be properly told about them - including whether Theresa May was involved as home secretary.

"The UK's longstanding opposition to capital punishment around the world is honourable and right, so it's deeply concerning to learn the UK may have been reneging on its policy in private while maintaining a public facade of staunch opposition to the cruelty of the death penalty."

The government also faced criticism from the UK-based human and legal rights group Reprieve, which supports people facing execution.

Dan Dolan, head of policy at Reprieve, said: “Categorical opposition to the death penalty is central to Britain’s global reputation for defending human rights.

“The Government’s published policy is to oppose capital punishment ‘in all circumstances as a matter of principle.’ If this is to be worth the paper it’s printed on, there can be no caveats or get-out clauses.

“Each time the Government makes an exception, it dramatically weakens Britain’s claim to take a moral lead in the world.”

In a separate government statement to mark World Day Against the Death Penalty on Wednesday, Minister for Human Rights, Lord Tariq Ahmad of Wimbledon said: “We reaffirm the UK’s long-standing policy to oppose the use of the death penalty in all circumstances as a matter of principle.

“The death penalty undermines human dignity, there is no conclusive evidence of its deterrent value, and any miscarriage of justice leading to its imposition is irreparable.”

Ms Lucas said this statement amounted to "rank hypocrisy".

Elshiekh and Kotey, who left west London to fight for Isis, are currently being held in Syria after being captured there in January.

After they were caught, the Crown Prosecution Service reviewed 600 witness statements gathered by the Metropolitan Police but concluded that there was “insufficient evidence” to prosecute them with any crime in Britain.

This in turn meant the government had to consider whether to give US prosecutors the evidence gathered by the UK authorities, and whether to insist on assurances about the death penalty.

In July, a leaked letter showed that Mr Javid had agreed to hand over the evidence without getting assurances that the two men would not be executed.

Elsheikh's mother Maha Elgizouli is now attempting to launch a judicial review over this decision, claiming it was unlawful.

In the High Court on Monday her lawyer Edward Fitzgerald QC said the decision to waive the death penalty assurances had been influenced by the “anticipated outrage” within Trump’s administration if the UK insisted on promises the two militants would be spared execution.

When the government was challenged over the decision in Parliament in July, Mr Wallace, responding for the government, said that Elshiekh and Kotey had been stripped of their UK citizenship under rules aimed at stopping militants from returning to Britain.

Mr Wallace also told Parliament that UK overseas security and justice assistance guidance clearly stated that there could be exceptional cases where “ministers can lawfully decide that assistance should be provided in the absence of adequate [death penalty] assurances”.

Mr Wallace insisted: “That has been the policy for many, many years.”

Referring to beheadings associated with the four-strong group that came to be known as the ‘Jihadi Beatles’, Mr Wallace said: “Who are we to deny [justice in the US courts] to those victims in the United States, if the United Kingdom holds some of the evidence that may make it possible?”

In the High Court on Monday, James Eadie QC, for the government, also argued that the two men were not covered by the European Convention on Human Rights (ECHR) because “an individual, who is abroad, and in respect of whom legal assistance is provided to a foreign authority, is not within the jurisdiction of the UK for the purposes of the ECHR.”