The UK’s highest court is to decide if the government can share evidence involving two alleged members of ISIS without seeking assurances the men will not be executed in the US.
El Shafee Elsheikh and Alexandra Kotey are alleged to have participated in the torture and murder of western hostages in Iraq and Syria as part of the brutal "Beatles" ISIS cell. Both are being held, alongside hundreds of suspected foreign fighters, in a Syrian prison run by Kurdish authorities. They have been stripped of their British citizenship.
The UK government had said it felt the men were more likely to be found guilty in the US. But it was claimed on Tuesday that UK authorities now had enough evidence to prosecute Mr Kotey on murder charges.
"There was a historical decision in February 2016 that there was sufficient evidence to charge Alexanda Kotey here with five offences of murder and eight offences of hostage-taking," said Edward Fitzgerald QC, representing Ms Elgizouli.
"And, further, that warrants were then issued for his arrest.
"In respect of Mr El Sheikh, the new evidence further shows that the DPP now concedes that there may be sufficient evidence to charge and prosecute him here, at least for offences of membership of a proscribed organisation," he said, according to The Telegraph.
In June 2018, the UK Home Secretary said he would provide the US with 600 witness statements via the Mutual Legal Assistance agreement. The statements were gathered by the Metropolitan Police to support a possible prosecution. The government did not ask for assurances that capital punishment would not be used if the men were extradited to the US.
This fact was used as the basis for a legal challenge of the decision by Mr Elsheikh's mother, Maha Elgizouli. But in January, the High Court said the government decision was not unlawful.
Ms Elgizouli has now taken the case to the Supreme Court. The case started on Tuesday afternoon and is expected to last until Wednesday.
In a letter to US legal authorities last July, the interior minister at the time, Sajid Javid, said: “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.
“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.”
The contents of the leaked letter that was slammed by many in the UK as a departure from government policy.
The UK abolished the death penalty in 1965.