United Kingdom Supreme Court Rules Britain Cannot Provide Evidence to U.S. for Use in Death-Penalty Cases

In a decision that exposed the deep divide between the United States and its European allies on capital punishment issues, the Supreme Court of the United Kingdom unanimously ruled that the British government unlawfully provided information to the United States about two suspected Islamic State members without first obtaining assurances that the information would not be used to impose or carry out the death penalty.

The landmark ruling, issued March 25, 2020 in the case of Elgizouli v. Secretary of State for the Home Department, requires British authorities to withhold from the United States any evidence that the United States could use to prosecute Shafee El Sheikh and Alexander Kotey—two British Islamic State detainees accused of murdering U.S. and British captives—because U.S. officials had refused to rule out pursuit of the death penalty in their cases. “No further assistance should be given for the purpose of any proceedings” against El Sheikh and Kotey “in the United States of America,” Lord Brian Kerr wrote for the Court, “without the appropriate death penalty assurances.”

The U.S. State Department did not offer immediate comment on the ruling.

Human rights organizations and international capital defense organizations praised the U.K. high court’s decision. The London-based Death Penalty Project, which the Court permitted to intervene in the lawsuit, described the decision’s importance as “wider than just this case.” The organization’s Co-Executive Director Parvais Jabbar said the ruling “has implications for any individual who may be facing the death penalty and concerns what assurances the U.K. Government must seek before deciding what help or assistance it may give. These are fundamental issues concerning the right to life. The UK abolished the death penalty over 50 years ago and the Government must hold true to its commitment to oppose capital punishment in all circumstances and as a matter of principle.”

Maya Foa, Director of the international human rights organization Reprieve, assailed the British government’s actions that led to the lawsuit. “By sharing information without first seeking—and securing—assurances that the death penalty wouldn’t be in play, this government acted unlawfully,” she said. “In doing so they undermined the U.K.’s strong assistance for people facing capital punishment across the globe, and so put hundreds of lives at risk.”

El Sheikh and Kotey are accused of kidnapping, torture, and 27 murders as members of the Islamic State. In 2018, after the U.S. had twice refused to provide assurances that it would not seek the death penalty, then-U.K. Home Secretary Sajid Javid nevertheless agreed to share information on the two prisoners. The British government then provided approximately 600 witness statements and other evidence to U.S. prosecutors for use in their trials. In his judgment for the Court, Lord Kerr characterized the government’s decision to share the information as one “based on political expediency, rather than strict necessity.”

Justice Kerr noted that during the British proceedings in the case a government witness testified that U.S. officials had described the U.K.’s position on the death penalty as an “irritant.” “This statement is both enlightening and concerning,” Lord Kerr wrote. “It indicates how the U.K. authorities were coming under (and might become susceptible to) political pressure from the U.S.… The statement also raises questions as to whether pragmatic considerations, at the expense of a principled approach, might begin to influence the U.K.’s reaction to the demand that it should cease its ‘lobbying’ in relation to the death penalty assurances.”

The U.K. government had argued that refusing to share the information without assurance against the death penalty would strain diplomatic relations between the two countries, but the Court rebutted that assertion. “There is no evidence that the insistence on assurances in the case of extradition or deportation has led to any rupture in the relations between the two countries,” it wrote. “Moreover, several other countries have required assurances without any evidence of negative consequences (for example, Germany’s requiring an assurance before providing Mutual Legal Assistance for the federal prosecution of Zacarias Moussaoui, one of the 9/11 conspirators).”

In her opinion in the case, Baroness Brenda Hale expressed the broad importance of the Court’s decision. “The most fundamental of the rights protected by the European convention [on human rights],” Justice Hale wrote, “is the right to life. This is an absolute right, not qualified by the possibility of restrictions or interferences which are ‘necessary in a democratic society’.”

Stressing that principle, Lord Kerr argued that “the time has arrived where a common law principle should be recognised whereby it is deemed unlawful to facilitate the trial of any individual in a foreign country where, to do so, would put that person in peril of being executed.” However, the Court stopped short of adopting that principle, instead resting its judgment on an interpretation of the nation’s data privacy law.

The U.K. already bans extradition of prisoners without assurances that they will not face the death penalty.

In reacting to the ruling, 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.”

The court’s decision, however, took direct aim at what it considered a hollow invocation of the victims’ interests. “[T]he families wished to avoid the application of the death penalty,” the Court said. “The species of justice that the families wished to have was one where there was not the possibility of the imposition of the death penalty. The decision not to seek assurances opened up that very possibility. To fulfil their wishes, it was surely required that the hallowed practice of seeking death penalty assurances be observed.”

The case is named for Maha Elgizouli, El Sheikh’s mother, who challenged the U.K. government’s abandonment of its long-standing opposition to capital punishment in her son’s case. In a statement, her solicitor said, Elgizouli “has always expressed her belief that her son, if accused, should face justice—and that any trial should take place in the U.K.” where he would not face the death penalty. The Crown Prosecution Service (CPS) had initially asserted that there was not enough evidence to try the two men in the U.K., but has since changed its stance.