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The Beatles Duo: Applying Precedent to a Human Rights and Judicial Review Claim

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About The Author

Tanya McKinlay (Guest Contributor)

Tanya is a recent GDL graduate from BPP Law School, with a particular interest in criminal and human rights law. She is now undertaking the BPTC at the University of Law, with the hope of securing pupillage over this following year. Outside the law, Tanya enjoys reading, photography, and considers herself a modern history buff.

© Richter Frank-Jurgen

The death penalty not only takes away the life of the person strapped to the table - it takes away a little bit of the humanity in each of us. 

Clint Smith

Since the outlawing of capital punishment through the Murder (Abolition of Death Penalty) Act 1965, the UK boasts a legacy of opposing the death penalty as a matter of principle. Past governments have refused to extradite individuals accused of serious criminal offences, including acts of terrorism, to retentionist countries, unless clear assurances were given that capital punishment would not be used. During his Prime Ministership, Tony Blair went as far as publicly opposing the death penalty, even in the case of deposed Iraqi dictator Saddam Hussein.

It is therefore unsurprising that the leaked letter of Home Secretary Sajid Javid MP concerning Alexanda Kotey and El Shafee Elsheikh – two members of the British Isis cell known as ‘the Beatles’ – was met with shock: addressed to American Attorney General Jeff Sessions, it set out Javid MP’s confirmation that the UK would not demand assurances that the duo would avoid the death penalty. Despite this, it also explained that the UK would still share intelligence to further a US prosecution of the pair in what is known as a ‘mutual legal assistance’ (MLA) agreement, a method of state cooperation for obtaining assistance in the investigation or prosecution of criminal offences. It is understood that the letter was sent in pursuance of reaching this agreement during the prosecution stage.

The decision promptly led to accusations that the government was abandoning its long-held policy against the death penalty. Moreover, a number of legal commentators pointed to the potential illegality of this decision on both human rights and judicial review grounds. Ben Emmerson QC was particularly vociferous, calling the decision ‘unprincipled, incompetent, and almost certainly unlawful.’

He claimed that the decision violates government guidance published by David Cameron in 2010, which ‘prohibits any cooperation of this kind’ and argued that – although Kotey and Elsheikh have been stripped of their UK nationality – it is:

[I]mmaterial to the legality of the British government passing information to a foreign power where they know the consequence is going to be a fundamental human rights abuse of this kind.

A legal challenge by the mother of Elsheikh has since been launched. Led by law firm Birnberg Peirce, it seeks to quash Javid MP’s decision not to seek an assurance from the USA through a full judicial review, raising constitutional questions as to the ability of a minister to agree to a change of policy without parliamentary ratification.

However, despite assertive opposition to the decision, the issue of its legality is not as clear cut as it may seem. This article will show that existing precedent goes against Kotey and Elsheikh in a human rights or judicial review claim. Yet, it also notes that outstanding and pertinent legal issues mean that the case cannot simply be set aside as without hope.

A Human Rights Breach?

Previous Authorities

Human rights law concerning the death penalty is well established. While the wording of Article 2 of the European Convention of Human Rights (ECHR) allows for the deprivation of life in the execution of a court sentence, the addition of formal and specific Protocol 6 and Protocol 13 have since affirmed the total abolishment of capital punishment under the ECHR. While Protocol 6 only permits the death penalty in times of war, Protocol 13 repeals this exception by requiring contracting states to completely abolish the death penalty in all circumstances.

The European Court of Human Rights (the ECtHR) further expanded the prohibition on capital punishment in Soering v UK [1990]. This decision imposed an obligation on contracting states not to place a person in a position where they would be subject to the death penalty. Furthermore, the ECtHR held that foreknowledge of capital punishment as well as extended periods on death row would breach the prohibition of torture and inhuman and degrading treatment enshrined in Article 3 of the ECHR. Contracting states were thus required to obtain firm diplomatic assurances that a person they extradited or expelled would not be sentenced to death.

These principles were more recently affirmed in Al-Saadoon and Mufdhi v UK [2010], where it was deemed to be unlawful for the UK to transfer a prisoner with a real risk of receiving capital punishment to Iraqi authorities. The ECtHR's judgement in Al-Nashiri v Poland [2014) also ruled that Poland was in violation of Article 2 and Article 3 of the ECHR, taken together with Protocol 6 and Protocol 13, for assisting the CIA in transferring an applicant from its territory when there was a danger he would be subject to the death penalty. These two cases possess notable similarities with the Beatles duo claim, as both applicants were also accused of terrorist related crimes.

Distinguishing the Beatles Case

However, the Beatles case can be distinguished from established case law in two critical ways: Kotey and Elsheikh have not been subject to extradition proceedings, and were not captured or held on British territory.

Indeed, previous ECtHR case law concerned applicants captured and/or held on contracting state territory or who were under their effective control. Were this to be the case for Kotey and Elsheikh, then this precedent can be directly applied. Moreover, it would make Javid MP in clear breach of Section 94 of the Extradition Act 2003, which prohibits UK authorities from ordering extradition without adequate written assurances in instances where a death sentence may be passed.

In reality, however, the pair are neither on British territory or under effective British control. Rather, they were captured and detained by US-backed Syrian Democratic Forces, who arrested the pair after suspecting them of being foreign fighters. There is no evidence thus far to show that the UK provided any logistical or informational assistance crucial to their capture, which could have pointed towards British control over their circumstances. Neither will Kotey and Elsheikh’s British citizenship have any bearing in determining whether the UK has effective control over them: the ECtHR has always defined ‘effective control’ in jurisdictional terms, which is further discussed below, and has consistently disregarded the claimant’s nationality.

A wide interpretation of the judgement in Al-Saadoon and Mufdhi v UK [2010] is possible: the ECtHR drew attention to an earlier judgement from Saadi v Italy [2008], which stated that the liability of a member state under the ECHR is incurred ‘by reason of it having taken action which has as a direct consequence the exposure of an individual to risk of proscribed ill-treatment’. Moreover, with reference to case law, the ECtHR concluded that ‘it is not open to a Contracting State to enter into an agreement with another State which conflicts with its obligation under the Convention.’ It was held that this principle carried particular force in Al-Saadoon and Mufdhi v UK [2010] given ‘the fundamental nature of the right not to be subjected to the death penalty and the grave irreversible harm risked by the applicants.’

This wide interpretation would therefore make the UK liable for entering an MLA with the US, as it has a direct consequence of putting the Beatles pair at risk of capital punishment. But to conclude this would be a radical expansion of established precedent that merely places liability on those member states directly involved in an applicants’ extradition or transfer.

Moreover, without evidence that Kotey and Elsheikh were captured or held in UK controlled territory, any human rights claim is likely to fall at the first hurdle of establishing the UK’s jurisdictional liability codified under Article 1 of the ECHRThis proved fatal to the human rights claim in R (Abbasi) v Secretary of State for the Foreign & Commonwealth Office [2002]: the claimant, a British national captured by US forces in Afghanistan, had failed to prove that they were under the jurisdiction of the UK for the purposes of Article 1 of the ECHR.

Here, the Court of Appeal affirmed the territorial concept of jurisdiction under Article 1 of the ECHR and held that it would be a considerable extension of that principle to suggest that the Convention obliges contracting states to act against human rights violations outside their jurisdiction and for which it has no responsibility. As such, the Court of Appeal concluded that the claimant could not rely on the ECHR or Human Rights Act 1998 to argue that the Foreign Secretary owed Abbasi a duty to exercise diplomacy on his behalf.

A Legitimate Expectation?

Outspoken opposition to Javid MP’s decision points to a widely held expectation that assurances would be sought for the Beatles duo, arising out of the Government’s long-held policy against capital punishment. Kotey and Elsheikh may therefore rely on the doctrine of legitimate expectation, as defined by Lord Fraser in Council of Service Unions v Minister for Civil Service [1985], as the means of giving legal effect to the applicant’s legitimate expectation arising ‘from the existence of a regular practice which the claimant can reasonably expect to continue.’

Having been stripped of their UK citizenship, Kotey and Elsheikh are unable to directly apply for a judicial review and claim a legitimate expectation arising out of UK policy. Nonetheless, Elsheikh’s mother, a UK citizen, will be deemed to have ‘sufficient interest’ under Section 31(3) of the Senior Courts Act 1981 and thus be able challenge Javid’s decision as a misuse of public power.

Indeed, the UK has a settled policy to seek assurances that the death penalty will not be sought. For example, the Overseas Security and Justice Assistance (OSJA) Human Rights Guidance, which is used to consider requests for MLA, requires decision-makers to consider whether the death penalty is retained in a requesting country, which offences it applies to, and whether death sentences are carried out in practice. Where there is a risk of capital punishment, the policy states that ‘written assurances should be sought before agreeing to the provision of assistance that anyone found guilty would not face the death penalty’. When assurances are not forthcoming or where:

[T]here are strong reasons not to seek assurances, the case should be automatically deemed ‘High Risk’ and FCO Ministers should be consulted to determine whether, given the specific circumstances of the case, we should nevertheless provide assistance.

Moreover, specific policy concerning MLA titled Requests for Mutual Legal Assistance in Criminal Matters requires foreign authorities to declare whether a death sentence is possible for the offence under investigation. Furthermore, it stipulates that any request should include an assurance that such a sentence will not be carried out or will be commuted. While the policy states that the UK accedes to most MLA requests received, authorities retain a wide discretion when considering whether to accept a request. A stated ground for refusal is whether the ‘execution of the request would prejudice the public policy doctrine of the UK, including the risk that the death penalty will be imposed for the crime under investigation.’ Javid’s decision has without a doubt prejudiced this public policy doctrine.

Taken together, these statements are a clear indication that the government accepts responsibility for seeking written assurances that the death penalty would not be imposed where the risk of capital punishment is a real one. A legitimate expectation can therefore be found.

However, as shown by Abbasi [2002], the question is not merely whether a legitimate expectation exists, but also the extent of it. Here, the Court of Appeal held that although the claimant had a legitimate expectation the Foreign Secretary had a role in protecting the rights of Britons abroad where there is evidence of miscarriage or denial of justice, the extent of this expectation was a limited one. Said policy made no more than a commitment to ‘consider’ making representations.

As such, the Foreign Secretary would only be in breach if they refused to even consider whether to make diplomatic representations and only in this case would the Court make a mandatory order to the Foreign Secretary to give due consideration to the applicant’s case. Otherwise, the decision to make representations and in what form was left entirely to the Foreign Secretary’s discretion. This gives Ministers the scope to give full weight to non-justiciable foreign policy considerations, which will inevitably be connected to decisions relating to the diplomatic representations

There are some parallels that can be drawn to the Beatles case. Javid MP’s letter states that there are ‘strong reasons’ for not seeking assurances concerning the death penalty. The public are not privy to these reasons but given the national security considerations intimately linked to ISIS crimes, it is likely that they are matters outside the scope of justiciability. As such, and given the courts' reluctance to hinder on these non-justiciable areas, then the Government’s death penalty policy would lead to a similarly limited expectation.

The OSJA and Requests for MLA merely commits to 'consider' death penalty sentences, granting the Secretary of State wide discretion as to whether assurances should be sought. Indeed, Requests for MLA policy states that written assurances ‘should’ be sought, suggesting a course of action to be taken rather than merely a commitment to consider any one case.

Arguably, however, this wording is not sufficiently narrow to insist that assurances must be given before an MLA is agreed. As such, the policy taken as a whole grants Javid MP the broad scope to consider non-justiciable national security considerations and thus only gives rise to a limited expectation that assurances will be sought.

Conclusion: Evading Responsibility?

Essentially, Kotey and Elsheikh are fighting against the current of established precedent with regards to a legitimate expectation and human rights claim. Yet, legal commentators are not wrong in their cries of constitutional and human rights abuses, as the Beatles case highlights a number of unresolved and concerning issues.

Gareth Pierce and Anne McMurdie, the Birnberg Peirce lawyers leading the judicial review against Javid’s decision, were right in stating that ‘the application raises questions of enormous constitutional importance’. Every budding lawyer will faithfully recite how a fundamental principle of the rule of law is that the exercise of government functions should not be done arbitrarily, but rather subject to legal controls.

Yet, the case has highlighted the Home Secretary’s ability to not seek death penalty assurances, on a case-by-case basis, and ultimately guided by a policy that has not received parliamentary ratification. Our discomfort by this should be amplified by the fact that this ad hoc decision making puts individuals at risk of acknowledged human rights abuses: the breach of Article 2 and Article 3 of the ECHR, in combination with Protocol 6 and Protocol 13, as highlighted by the ECtHR's case law. This flies in the face of the doctrine of responsible and accountable government, whose exercise of power must conform to notions of respect for individuals and individual rights.

Moreover, there are questions as to why Britain is not taking the opportunity to prosecute the duo. Lord Carlile, independent reviewer of counter-terrorism laws between 2001 and 2011, believes that this would be the ‘proper forum of justice’, arguing:

[T]hey should be returned to their country of origin, where their case should be considered in a normal way with British rights, British duties, British obligations, and British responsibilities.

Javid MP himself has stated in his letter that a prosecution of the pair would ‘[hold them] up as an example of how we treat and deal with alleged Isis fighters.’ Yet, it seems as though we are letting the US do the job for us. If Britain truly wanted to make such a strong stand against radicalisation, the duo should be prosecuted here – in the very country they were radicalised. As such, Ken MacDonald QC was right to highlight on the BBC Radio 4's Today that:

[T]hey were brought up in Britain, went to schools here and were radicalised here, we are responsible for them. It is an abdication of sovereignty. We are imploring the US to do our dirty work.

The aim of prosecuting the Beatles pair of the heinous crimes they have been accused of is a legitimate one. However, this legitimate purpose could be achieved by prosecuting the pair in Britain, where the death penalty has been abolished. This would remove the risk of any human rights breach, as well as remove the danger of them going unpunished: with the death penalty off the table, the pair would receive life sentences if convicted of their alleged crimes in the UK, as they would in the US.

There is also no reason to believe that they would have a greater chance of parole in one country over the other. Nonetheless, Ben Wallace MP, Minister for Security, has told MPs that there was not enough to prosecute in the UK, but he hoped there was enough to prosecute in the US. He goaded whether 'we would rather see these people go free or go to trial?'

The question is doubtless hyperbolic and reduces a highly complex matter into a zero-sum game. The answer is, invariably, to see them go to trial. But there is one important caveat: Kotey and Elsheikh must receive a fair trial. The UK machinery of justice is neither arbitrary nor unreasonable, it has been designed to respect the rule of law and afford procedural safeguards to any and all defendants. If the Ministers responsible for the decision do not believe there is enough to prosecute here, should this not call into question whether our minimum procedural standards of fair and equal justice have been met?

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Tagged: Anti-Terror, Death Penalty, Extradition

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