‘Appropriate jurisdiction’
Sajid Javid’s letter to the US Attorney General, seeking to maximise the chance of a successful prosecution
22 June 2018
Dear Attorney General
DETENTION OF ALEXANDA KOTEY AND SHAFEE EL-SHEIKH
Iam writing to follow up on our meeting on May 30 in which we discussed the issue of detained foreign terrorist fighters, specifically Alexanda Kotey and Shafee El-sheikh. I would like to express from the outset my gratitude to the Department of Justice and the FBI for their assistance to date. I would also like to thank you for your time. These are important issues and we are united in our commitment to bring people who commit these crimes to justice.
The UK’S aim is for these individuals to face justice in the most appropriate jurisdiction which maximises our collective chances of a successful prosecution. To this end the (operationally independent) Counter Terrorism Command of the Metropolitan Police (SO15) and Crown Prosecution Service (CPS), have been engaged in a dispassionate assessment of the evidence available and likelihood of prosecution in the UK. In parallel, our investigators have also been working with the FBI to explore the likelihood of prosecution in the US or other jurisdictions.
We consider the two individuals, Alexanda Kotey and Shafee Elsheikh, distinct from the broader strategic issue of detained foreign terrorist fighters for three reasons.
Firstly, there is intelligence implicating these two individuals in the kidnap and murder of a number of individuals, including three American and two British citizens.
Secondly, these individuals have a significantly higher profile than other detainees in Syria due to their crimes, and will be held up as an example of how we treat and deal with alleged Isis fighters.
Thirdly, we need to deliver justice for the victims’ relatives who have been vocal in their demands that both detainees face the rest of their lives in prison, following a fair and transparent trial.
SO15 have engaged extensively on this case with the FBI to understand both the US and UK evidential cases, pursuing various lines of inquiry. Their investigation into Kotey and El-sheikh has been running for over four years, during which time they have engaged with 14 other countries and compiled over 600 witness statements.
The UK does not currently intend to request, nor actively encourage, the transfer of Kotey and El-sheikh to the UK to support a future Uk-based prosecution.
I do understand your frustration on this subject, and in order to improve the chances of prosecution in other cases in the future, we in the UK are introducing new legislation to improve the range of offences on the statute book going forward to deal with the scourge of foreign fighters.
Ensuring foreign fighters face justice raises a real challenge for all our jurisdictions, however in this instance we believe that a successful federal prosecution in the 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 El-sheikh, and after careful consideration I have decided to accede to your current request for Mutual Legal Assistance which is with the UK Central Authority.
All assistance and material will be provided on the condition that it may only be used for the purpose sought in that request, namely a federal criminal investigation or prosecution. Furthermore, I am of the view that there are strong reasons for not requiring a death penalty assurance in this specific case, so no such assurances will be sought.
I have instructed my officials to set out the terms of our assistance and to work with your officials to action the request. As you are aware, it is the long held position of the UK to seek death penalty assurances, and our decision in this case does not reflect a change in our policy on assistance in US death penalty cases generally, nor the UK Government’s stance on the global abolition of the death penalty.
I look forward to working with you further on this issue.
Yours sincerely,
The Rt Hon Sajid Javid MP