A list-ditch legal bid to prevent a prosecution in the US of one of the alleged members of the notorious British ‘Beatles’ Isil gang has been rejected at the High Court.
Maha Elgizouli, whose son El Shafee Elsheikh is being held by the Americans, had applied for permission to hold a judicial review into how Priti Patel, the Home Secretary, handled the case.
But a judgment handed down by Dame Victoria Sharp found the mother’s legal team’s claims the British Government was in breach of the Data Protection Act by sharing information about Elsheikh with the US was “not properly arguable”.
The ruling means the UK Government can now send personal information to America, which may proceed with a prosecution or send Elsheikh, 32, along with Alexanda Kotey, 36, to Iraq for trial.
The judgment says Elsheikh, who is held with Kotey, is currently under investigation in America for the “most heinous offences in Syria arising out of his membership of a group of foreign terrorist fighters known as the Beatles”.
The gang, nicknamed the Beatles because their English accents stood out in Syria, is suspected of beheading 27 people, including Britons David Haines and Alan Henning, and the three US citizens, James Foley, Steven Scotloff and Peter Kassig.
Ms Elgizouli’s lawyers argued Ms Patel’s decision to share personal information was unlawful as it was incompatible with the Data Protection Act, and asked the court to order that no material should be provided to the US.
They said the transfer of the evidence was “not strictly necessary” as it was made at a time when the Director of Public Prosecutions (DPP) was due to make a decision “imminently” about whether there was enough evidence to prosecute Elsheikh in the UK. The judge, sitting with Mr Justice Garnham, wrote: “The conclusion that, even if Mr Elsheikh could be prosecuted in England, it would still be necessary and proportionate to transfer the data to the US authorities remained a conclusion properly open to the Secretary of State.” The hearing was held urgently as the US Government indicated it will transfer in October the pair for trial to Iraq, where they could be executed if found guilty.
Dame Victoria says in the ruling the Crown Prosecution Service (CPS) has concluded there is sufficient evidence to prosecute Elsheikh for a number of “terrorism-related offences”, but they required either the consent of the Attorney General, Suella Braverman, or her permission for the DPP to consent to a prosecution.
The judgment said the Attorney General had indicated to Ms Elgizouli’s solicitors “it is simply not possible” to give an indication of any timescale regarding her decision about whether to prosecute the pair here.
Shortly after a series of beheadings in 2014, the four so-called Beatles were stripped of their British citizenship because they posed a national security threat to the country.
In 2015, the US asked the British Government to share information about the former British citizens under a “mutual legal assistance” treaty.
Mohammed Emwazi, known as Jihadi John, was killed in a drone strike in Raqqa in 2015.
In 2017, Aine Davis was convicted in Turkey in 2017 for being a senior member of Isil.
The following year, Elsheikh and Kotey were captured by the Kurds and later held by the US.
Mr Javid then authorised the sharing of 600 witness statements gathered by the Metropolitan Police under a “mutual legal assistance” agreement in a letter to then US attorney general Jeff Sessions.
Ms Elgizouli previously brought a challenge to former home secretary Sajid Javid’s decision to share evidence with US authorities without seeking assurances the men would not be executed if convicted in the US.
Mr Javid faced intense criticism after the letter to Mr Sessions was leaked, with MPs accusing him of breaching the UK’s long-standing opposition to the death penalty.
Then prime minister Theresa May supported Mr Javid’s original decision, which was also backed by current Prime Minister Boris Johnson when he was foreign secretary.
The mother’s case was dismissed by the High Court in January 2019 but that decision was overturned in March this year by a panel of seven Supreme Court justices, who unanimously allowed her appeal – ruling the decision to share evidence with the US was unlawful under the Data Protection Act.