Two alleged Islamic State terrorists suspected of involvement in a series of beheadings must not be released “back on to the battlefield”, senior judges have heard.
El Shafee Elsheikh and Alexander Kotey are said to have been members of a brutal four-man cell of IS executioners in Syria and Iraq, nicknamed The Beatles because of their British accents, responsible for killing a number of high-profile Western captives.
Elsheikh’s mother Maha Elgizouli has mounted a High Court challenge over the UK’s sharing of evidence with US authorities under a “mutual legal assistance” (MLA) agreement.
She says it was “unlawful” for the Government to do so without obtaining any assurance the pair will not face execution if convicted in the US.
Lawyers for Home Secretary Sajid Javid, who is contesting Ms Elgizouli’s case, said it was not yet known whether the pair will be charged in the US, but that there is the “most powerful interest” in a proper investigation of their alleged crimes.
James Eadie QC told the court on Tuesday: “The claimant’s son is a suspected terrorist fighter in Syria, he is suspected of involvement in the beheading of individuals … which was filmed.
“Those films were broadcast on the internet and then used to promote the interests … of Daesh (Islamic State).
“The seriousness of those crimes, as I’m sure the court will need no reminding, is at the apex of seriousness.
“There is, for that reason alone, the most powerful interest in the proper investigation of those crimes and the most powerful interest in ensuring that, whatever options might be on the table, the option of releasing this individual back onto the battlefield to resume these activities is one thoroughly not to be desired.”
Mr Eadie said there was no “hard-edged obligation” on the UK Government to refuse to provide assistance to a “friendly foreign state” which has the death penalty.
He added that Mr Javid had considered this case with “conspicuous care” and “made a lawful decision to seek to assist the US investigation”.
Kotey and Elsheikh are accused of belonging to a cell which also included Mohammed Emwazi – known as “Jihadi John” – who was killed in a US air strike in 2015, and Aine Davis, who has been jailed in Turkey.
The group is suspected of involvement in the beheading of 27 people, including British aid workers David Haines and Alan Henning and US citizens James Foley, Steven Sotloff and Peter Kassig.
Emwazi was filmed carrying out a number of the murders and the videos were broadcast online.
Kotey and Elsheikh, who were raised in the UK, are believed to have been detained by Kurdish forces in Syria in January and have been stripped of their British citizenship.
They may face a federal trial in the US after the Crown Prosecution Service (CPS) decided there was “insufficient evidence” for them to be tried in the UK.
Mr Eadie told the court Elsheikh had chosen to go to Syria and therefore has no legal rights as he “placed himself beyond” the UK jurisdiction and is no longer a British citizen.
Edward Fitzgerald QC, for Ms Elgizouli, previously told the court her legal team is “in the dark” as to the nature of the material requested by the US, but that it includes 600 witness statements gathered by the Metropolitan Police’s counter terrorism command.
He also said it was not known why the CPS decided there was not enough evidence to prosecute and that the stance of US officials was that the pair should be tried in the UK.
After Ms Elgizouli launched legal action, the Home Office announced in July that it had agreed to a “short-term pause” of the MLA process with the US.
Prime Minister Theresa May supported Mr Javid’s original decision, which was also backed by Boris Johnson when he was Foreign Secretary.
But the MLA sparked widespread criticism in Westminster from across the political divide.
The case is being heard by the Lord Chief Justice Lord Burnett and Mr Justice Garnham, who are expected to deliver their ruling at a later date.