The Death Penalty and Extradition

The Home Secretary, Sajid Javid, caused controversy this week indicating that that he would not seek an assurance that the death penalty would not be imposed in the cases of Alexander Kotey and El Shafee Elsheikh, if they were extradited to the US.

Since the death penalty was abolished in the UK, there has been a long-held opposition to the death penalty which has been applied in extradition cases.  This means that a request for a person to be extradited to another country would be refused unless there was an assurance that the death penalty would not be imposed.  UK law would prohibit the removal from the UK of that person. The death penalty is also forbidden under the European Convention of Human Rights.

This hit the headlines in the context of the cases of Alexander Kotey and El Shafee Elsheikh.  They are alleged to have been involved in the torture and beheading of more than 27 victims as members of a cell of Isis executioners in Syria and Iraq. They have been stripped of their British citizenship, and discussions have been taking place as to whether they should be returned to the UK for trial or taken to the USA. Victims have been both UK and US citizens.

In this case, the pair are are not subject to extradition proceedings in the UK – as they were not arrested in the UK. Instead, the US sought the assurance in the context of their request for mutual legal assistance (MLA). MLA is a method of co-operation between states for assistance in investigating or prosecuting criminal offences. The guidelines for MLA are similar to the law in extradition cases.

Although Javid apparently stated in his letter that this does not alter the stance of the UK, it certainly raises questions as to whether assurances would not be sought in future cases and in what circumstances. The Howard League for Penal Reform has already indicated that it may bring legal proceedings to challenge the decision of the Home Secretary.