Brit ‘IS terrorists’ may face justice in UK: SC

LONDON: Two suspected Islamic State terrorists accused of belonging to a brutal four-man cell of British-born executioners in Syria may face justice in the UK, the Supreme Court has revealed.

El Shafee Elsheikh and Alexanda Kotey are accused of belonging to a notorious IS cell nicknamed The Beatles because of their British accents. The cell is believed to be responsible for the beheadings of 27 men, including British aid workers David Haines and Alan Henning and US journalists James Foley and Steven Sotloff.

They were captured by the Syrian Democratic Forces 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 that the men, who are now in US custody, would not be executed if convicted in the US.

On Wednesday, the Supreme Court unanimously ruled that Javid’s decision was unlawful under the Data Protection Act. In its ruling, the court revealed that the Crown Prosecution Service (CPS) is “reconsidering the possibility of a prosecution in this country”.

At a hearing last July, Edward Fitzgerald QC, representing Elgizouli, said a response by the director of public prosecutions to a separate legal challenge indicated that there is enough evidence for them to face trial in the UK.

The court was told that there was a “historical decision in February 2016” by the CPS 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.

But the CPS ultimately concluded that there was “insufficient evidence” to prosecute them in the UK. Giving the leading ruling of the court, Lord Kerr said: “The court has learned, however, that, in light of Mr Elsheikh’s being in the custody of US authorities, the feasibility of his being tried in this country may be revisited.”

In his judgment, Lord Carnwath added: “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.”

Supreme Court president Lord Reed referred to a June 2018 letter from Javid to then US attorney general Jeff Sessions, in which the then home secretary said: “Ensuring foreign fighters face justice raises a real challenge for all our jurisdictions, however in this instance we believe a successful federal prosecution in US is more likely to be possible because of differences in your statute book and the restrictions on challenges to the route by which defendants appear in US courts.

“The US currently has additional charges for terrorism offences which are not available under UK criminal law, and those offences carry long sentences.

We are therefore committed to assisting the US with a federal prosecution of Alexanda Kotey and Shafee Elsheikh, and after careful consideration I have decided to accede to your current request for mutual legal assistance.”

Lord Reed added: “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.”

Elsheikh and Kotey are said to have been members of The Beatles, the IS cell which also included Mohammed Emwazi, known as Jihadi John, who was killed in a US air strike in 2015, and Aine Davis, who has been jailed in Turkey. Emwazi appeared in a number of videos in which hostages, including Haines, Henning, Foley and Sotloff, were killed.