Mother of ISIS Beatle ‘George’ wins Supreme Court challenge

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

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)

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)

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

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

‘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.’

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 US federal court.

He described the activities of the so-called Beatles, including posting video of nearly 27 victims being beheaded online, as among the worst terror crimes imaginable. 

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 long-standing opposition to the death penalty.

Then Prime Minister Theresa May supported Mr Javid’s original decision, which was also backed by Prime Minister Boris Johnson when he was Foreign Secretary.

Kotey and Elsheikh, who were raised in the UK but have been stripped of their British citizenship, were captured by the Syrian Democratic Forces in January 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.