Cabinet was split on Isil death penalty decision
Britain’s legal powers have failed to keep pace with terrorism. A new offence of treason would also help
The Cabinet did not approve the decision to waive death penalty assurances for two suspected members of the Isil “Beatles” terror cell, The Daily Telegraph can reveal. At least two people around the Cabinet table at the time opposed the decision, which was taken by Sajid Javid, the Home Secretary, and Boris Johnson, the then foreign secretary.
THE Cabinet did not approve the decision to waive death penalty assurances for two suspected members of the Isil “Beatles” terror cell, The Daily Telegraph can reveal.
At least two people around the table at the time opposed the decision, which was taken by Sajid Javid, the Home Secretary, and Boris Johnson, the then foreign secretary.
It saw Britain agree to provide intelligence to help prosecute jihadists Alexanda Kotey and Shafee El-sheikh in the US but not demand the usual assurance that the death penalty was ruled out.
David Davis, Brexit secretary when the US was told of the decision in a letter dated June 22, has told this newspaper he was against the move. Mr Davis said: “Yes, I do oppose [the decision]. It believe it was unnecessary.”
A Tory ally of Mr Davis, a campaigner on human rights who left the Cabinet earlier this month over a disagreement on Brexit policy, said he was fiercely opposed to the decision.
A separate current Cabinet minister also believes the decision was wrong and that Britain’s opposition to the death penalty should not have been waived.
Elsewhere at senior levels in the Tory party, there is anger that Mr Javid failed to seek Cabinet buy-in, with fears the decision “looks underhand and ill-thought-through”. Some believe the decision will have “far-reaching consequences”. Home Office sources said that Mr Javid followed protocol for Mutual Legal Assistance [MLA] requests. They also stressed that the Prime Minister was aware of the decision. However, senior Tories insist that waiving the death penalty assurance when responding to this specific MLA request, deemed unprecedented by critics, was so consequential that it should have gone to Cabinet.
There are few hard rules on what should and should not be discussed at Cabinet level. But the first edition of The Cabinet Manual, published in October 2011, said that a proposal which “is likely to lead to significant public comment or criticism” should be discussed by at least a Cabinet committee.
Mr Johnson, who had reservations about the policy’s impact, has defended the decision in a piece for The Spectator. He wrote: “Let’s suppose there was a Reaper drone overhead [the two jihadists], and that British intelligence could help send a missile neatly through their windscreen.
“Would we provide the details – knowing that they would be killed without a chance for their lawyers to offer pleas in mitigation on account of their tough childhoods in west London? Would the British state, in these circumstances, have connived in straightforward extrajudicial killing?
Too damn right we would.”
Yvette Cooper, the chairman of the home affairs committee, yesterday wrote to Mr Javid demanding answers to nine questions over the decision, including his “strong reasons” for not requiring a death penalty assurance as cited in his letter to Jeff Sessions, the US attorney general.
It came as it emerged that more than 200 British terrorists including jihadists who have returned from Syria could be offered help in getting council houses and finding jobs under a new deradicalisation programme.
On Monday, MPS lined up to attack the Government’s decision to help the US prosecute two suspected jihadists without seeking assurances that they would not face the death penalty.
As liberals from all parties fulminated against capital punishment, few thought to mention the victims. But it is not immaterial that James Foley, Steven Sotloff, Peter Kassig, David Haines, Alan Henning, Haruna Yukawa and Kenji Goto were all murdered in the most horrific manner.
Their suspected killers were four Isil terrorists nicknamed “the Beatles” because of their British accents. Mohammed Emwazi was killed in a drone strike in 2015. Aine Davis is serving a jail sentence in Turkey. The two remaining members of the group, Alexanda Kotey and Shafee El-sheikh, are held by the Syrian Democratic Forces and face prosecution in the United States.
Stripped of their British citizenship, far away from the United Kingdom, and not in the custody of British forces, the case of Kotey and Elsheikh is not – as some seem to believe – about extradition, in which we transfer a suspect to another country for trial. Nor is it about deportation, in which we return a foreign national to their home country because of their behaviour.
If it was, the Government would have needed assurances from the US that the death penalty would not be used. Otherwise a court would have blocked the extradition or deportation on the grounds that it was incompatible with the European Convention on Human Rights (ECHR).
Instead, the Home Secretary, Sajid Javid, was responding to a “mutual legal assistance” request made by America. His decision will no doubt be tested in a judicial review lodged by a liberal campaign group, but there is every reason to believe that his decision is lawful: the ECHR does not apply to non-british nationals who are neither in our custody nor in our country.
Nor is this a change in policy, as Labour alleges. The Government’s Overseas Security and Judicial Assistance guidance – first put in place in 2011 and renewed in 2017 – says in relation to the death penalty “where there are strong reasons not to seek assurances” ministers can decide to “nevertheless provide assistance”. Officials point out that this is not the first time the Government has decided not to seek assurances about the death penalty.
As ever, the critics have not bothered to propose alternatives to Javid’s course of action.
The Home Secretary could have refused to share intelligence with the Americans and made a successful prosecution less likely. Or he could have insisted that the suspects should be tried in Britain.
But a successful prosecution would be far less likely here than in America. This is not necessarily because of a lack of permissible evidence, but because our laws provide defendants with so many ways of evading justice.
The fact that Kotey and El-sheikh are in the custody of “non-state actors” makes it difficult to transfer them to British custody and bring them here in a way that would not allow them to claim they faced an unfair trial.
This might sound ridiculous but it is not far-fetched. In 1999, the courts quashed the conviction of Nicholas Mullen, an IRA suspect serving a 30-year sentence for terrorism offences, because MI6 had arranged his deportation from Zimbabwe illegally. As the judge explained, the appeal he upheld “proceeded on the basis that, if it was fair to try him, the appellant was properly convicted.” The conviction was, none the less, overturned.
Our human rights laws would also allow Kotey and El-sheikh to claim abuse of process.
They could, in a trial, claim that a transfer from the custody of the Syrian Democratic Forces to the British contravened their rights under Article Three (prohibition of inhuman or degrading treatment) and Article Six (right to a fair trial) of the ECHR. It would not be the first time the excessively strict interpretation of these individual rights has been used to undermine the rights of the majority to live in peace.
The truth is that Britain’s legal powers have failed to keep pace with the changing nature of terrorism. We must equip ourselves better, in particular when it comes to extraterritorial offences and the threat of foreign fighters returning from Syria and elsewhere.
A modern offence of treason, as proposed by Policy Exchange, would help. So too would powers that would allow us to exclude returning jihadists from Britain.
But even more pressing is the need to stop human rights and case law like the Mullen ruling from preventing the conviction of dangerous terrorists.
I can already hear the liberal lawyers warning: “hard cases make bad law”. But bad laws make important cases hard to prosecute.
The controversy in the case of Kotey and El-sheikh is not that Britain is helping the US to prosecute them. It is that it would be so hard to prosecute them here at home. That needs to change.