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Natasha Forman (née Koshnitsky)
“I put it to Ministers that they cannot be a little bit in favour of the death penalty”
So said Diane Abbott in the Commons on Tuesday. This was during an aggressive Q&A session which followed her urgent question to the Home Secretary asking for a statement clarifying the UK’s stance on the death penalty. The question was asked following the already infamous leaked letter written by the UK Home Secretary Sajid Javid to the US Attorney General Jeff Sessions in relation to the request from the US for evidence to assist with proceedings against Alexanda Kotey and El Shafee Elsheikh, the remaining members of the Isis cell known as ‘The Beatles’.
The two men are currently held by the US-backed Syrian Defence Force, having been captured in January whilst attempting to escape Syria. There has been much debate as to the appropriate jurisdiction for their trials, particularly in light of the fact that they were stripped of their British citizenship. Criticism has been levelled at the UK government for their lack of opposition to the trials taking place in the US, made explicit in Mr Javid’s letter when he wrote that the UK “does not currently intend to request, nor actively encourage” the return of the men to Britain. The line of Mr Javid’s letter which has inflamed the British public, however, is “I am of the view that there are strong reasons for not requiring a death penalty assurance in this specific case, so no such assurances will be sought.”
In this context, a ‘death penalty assurance’ is an assurance from the US government that someone convicted as a result of assistance requested from the UK (which assistance includes evidence, as is the case here) would not face the death penalty. To request such an assurance is the government’s usual practice and is in keeping with their death penalty strategy which confirms that “It is the longstanding policy of the UK to oppose the death penalty in all circumstances as a matter of principle”.
The procedure laid out in the government’s Overseas Security and Justice Assistance (OSJA) Human Rights Guidance document explains how the UK is to decide whether to offer assistance to other countries. Where there are concerns that the assistance might contribute to use of the death penalty, the seeking of an assurance is part of the process stage entitled ‘Mitigate risks’. The guidance specific to the death penalty says that “Written assurances should be sought before agreeing to the provision of assistance that anyone found guilty would not face the death penalty.”
There is a caveat: where no assurances are forthcoming or “where there are strong reasons not to seek assurances”, FCO Ministers should be consulted to determine whether, in the specific circumstances of the case, the UK should nevertheless provide assistance.
Ben Wallace, the Security Minister, relied heavily on reference to this particular guidance when he came under fire in the Commons on Tuesday as he undertook to answer the urgent question in the absence of Mr Javid. In defending the decision, he said that Ministers had taken into account human rights considerations, in accordance with the OSJA guidance and its provision for situations where there are ‘strong reasons’ not to seek assurances.
This guidance document, which Mr Wallace referred to multiple times during the session as the authority under which Ministers made this decision, is scant at a mere 26 pages. It is entirely non-specific as to what might constitute a ‘strong reason’ to disregard our duty as a country to protect the fundamental human rights of those whose fate may be impacted by our decisions.
Mr Wallace himself was no more able (or willing) to shed light on the reasoning behind the decision, stating that as the matter is still on-going, the disclosure of any details may risk ‘undermining the operation’. The lack of clarity as to what ‘the operation’ may be makes it difficult to consider the validity of his position. However, the Prime Minister’s spokesperson has announced that, “The ultimate aim for all of us in our discussions with the US is to make sure that these men face the rest of their lives in prison.”
It may be that the government considered that, should an assurance be sought from the US, it would not be forthcoming given the particularly gruesome nature of the offences in question. The UK would then be in the uncomfortable position of either providing assistance despite the refusal (thus losing credibility and potentially undermining future requests for assurances), or declining to provide assistance (and therefore reducing the likelihood of the convictions being secured). At first glance, it is possible to understand, from a self-serving point of view, why the government would wish to avoid being drawn into such a dilemma. However, that dilemma only exists if it is presumed that the trials in question would take place in the US, and that is a situation of the government’s own making.
The UK government could (and I would argue, should) make strong representations that the two men should be brought here to face trial. For all of its faults, we have a justice system which is transparent, which operates for the most part without prejudice, and which (particularly vital in matters such as this) does not allow either for the Prosecution to put undue pressure on defendants to plead guilty by way of a plea-bargaining system, or for people who have been convicted to languish on death row with no certainty as to an execution date. Mr Wallace’s explanation for the UK’s lack of resistance to a trial in the US is that the US has a “suite of offences that would achieve a conviction and we did not”. This is not the case, as has been publicly lamented in the press today by Lord MacDonald, a former DPP.
In considering the much-relied-upon OSJA guidance, perhaps Ministers ought to have given more weight to the final consideration, namely, “Is there a reputational or political risk to HMG or agencies?” It has become very clear, very quickly, that the reputational and political backlash as a result of this decision is huge, and overwhelmingly negative. The total absence of transparency in the decision-making process has left the public outraged and bewildered, and has made the government appear either duplicitous or inconsistent, or at worst, both.
As Diane Abbott succinctly put it to the House on Tuesday, “I put it to Ministers that they cannot be a little bit in favour of the death penalty. Either we offer consistent opposition, or we do not.”
Should you have any questions about the issues covered in this blog, please contact a member of our Criminal Law team.
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