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.