Unites States Attorney General William P. Barr, in a letter to the UK Secretary of State for the Home Department (’SSHD’) Priti Patel MP, has provided an assurance that in exchange for the UK acquiescing to a US request for mutual legal assistance (’MLA’), the US will not seek the death penalty in any prosecution it may bring against Alexanda Kotey or El Shafee Elsheik. Further, in the event that the death penalty is nevertheless imposed, Attorney General Barr assured the SSHD that it would not be carried out.
Messrs Kotey and Elsheik, who are in US military custody in Iraq and have been stripped of their UK citizenship, are alleged to have been members of the Islamic State terror group. The US first made an MLA request in respect of the two in June 2015. In 2018, then SSHD Sajid Javid, agreed to provide the information requested without a death penalty assurance. This decision was the subject of legal challenge culminating in a decision by the Supreme Court in March 2020 that SSHD Javid had failed to carry out the assessment required under the Data Protection Act in reaching that decision.
The US letter makes clear that time is of the essence from the perspective of US prosecutors. The UK Supreme Court has yet to issue its final judgment in the case and there is the possibility of continued litigation thereafter. US Attorney General Barr imposed a deadline of 15 October 2020 for the UK to resolve all litigation which prevents the transfer of the requested information, and to carry out that transfer. The US authorities say that if this does not happen, they will hand Mr Kotey and Mr Elsheik over to Iraq for trial within the Iraqi justice system.
Mr Kotey and Mr Elshiek are half of a group of four British Islamic State fighters nicknamed ‘the Beatles’ and are accused of holding hostages, some of whom, including US journalist Daniel Foley, were beheaded in propaganda videos.