Government acted unlawfully in sharing information that could lead to death penalty, rules UK Supreme Court

March 25, 2020

The UK Supreme Court today ruled that the British Government acted unlawfully in a case where it departed from the UK’s longstanding policy on opposing the death penalty in all circumstances.

Maha Elgizouli V Secretary of State for the Home Department considered then-Home Secretary Sajid Javid’s decision to share information with US authorities regarding El Shafee Elsheikh and Alexanda Kotey in support of a US prosecution that would likely have seen the men face the death penalty.

The Home Secretary did not seek an assurance that the men wouldn’t face the death penalty if prosecuted in the US before offering to share intelligence on them with American authorities. Today, the Supreme Court ruled – in the first ever judgment handed down via video link – that the Home Secretary acted unlawfully in providing evidence to support the prosecution in the United States of the two prisoners without seeking assurances that the death penalty would not be imposed or carried out.

Reprieve made a third party intervention in the case – brought independently of either claimant – arguing that the Home Secretary’s decision not to seek death penalty assurances would have a devastating impact on countless other individuals facing the death penalty around the world. Those people who face the death penalty now, and those who may in the future, were placed at risk as a result of the government’s departure from the UK’s “categorical” opposition to the death penalty.

The UK government would ordinarily request assurances as a matter of course before sharing intelligence or conducting other activities with a foreign state that could lead to individuals facing capital charges. The decision not to do so in this instance was in part because the government worried that it might “wind the [US] President up to complain to the PM and, potentially, to hold a grudge.”

In its judgment, the Court highlights statements from a UK Government witness that US counterparts had described the UK’s position on the death penalty as an “irritant”; and notes that:

“This statement is both enlightening and concerning. It indicates how the UK authorities were coming under (and might become susceptible to) political pressure from the US… The statement also raises questions as to whether pragmatic considerations, at the expense of a principled approach, might begin to influence the UK’s reaction to the demand that it should cease its “lobbying” in relation to the death penalty assurances”

The judgment also describes as “perplexing” the UK Government’s wish to prevent the prisoners being sent to Guantanamo Bay while failing to seek similar assurances on the death penalty, given the UK’s professed opposition to both. The judgment asks: “Why was the prospect of detention so much less favourable than the possibility of Mr El Sheikh being executed? This has not been explained”.

Maya Foa, Reprieve’s Director, said: “This is not only a landmark judgment, but an excellent result for anyone who cares about the rule of law and Britain’s long-standing opposition to the death penalty. By sharing information without first seeking – and securing – assurances that the death penalty wouldn’t be in play, this Government acted unlawfully. In doing so they undermined the UK’s strong assistance for people facing capital punishment across the globe, and so put hundreds of lives at risk.”