QC says a US trial makes Britain look like a ‘banana republic lacking faith in our own institutions of justice’

The UK government has been accused of acting like “a banana republic” after suppressing charges against the British group of Isis militants known as “the Beatles” out of fears that trying them at home could set a precedent for mass jihadist repatriations.

Prosecutors charged one member of the group, Alexanda Kotey, with multiple counts of murder in 2016 but the Home Office made no attempt to bring him home to face justice because, sources say, then home secretary Theresa May felt it was politically problematic.

Kotey was a member of the so-called “Isis Beatles” gang accused of beheading seven westerners, and last Thursday was transferred from Kurdish detention in Syria to US military custody in Iraq ahead of a potential US trial where he could face the death penalty.

Court documents reveal that the 35-year-old was charged with five counts of murder and eight counts of hostage-taking in February 2016 by the Crown Prosecution Service and warrants were issued for his arrest.

However, UK ministers continued to publicly claim it had no evidence against the Londoner, insisting the best chance of prosecution was to send him to the US, where he is now expected to be tried in Virginia, a state which has the death penalty.

This abject behaviour, driven entirely by party politics, dumped what was clearly our problem onto the rest of the world Ken Macdonald QC

Ken Macdonald QC, a former UK director of public prosecutions, said: “This abject behaviour, driven entirely by party politics, dumped what was clearly our problem onto the rest of the world.”

He added: “It calls into question Britain’s status as a dignified sovereign state capable of regulating the conduct of its own citizens, and it reduces us to the level of a banana republic lacking any faith in the power of our own institutions of justice.”

A legal source with knowledge of the case added: “The Home Office abdicated a prosecution they could have easily got for political gain, but one that was disingenuous to the families of the British victims who wanted them to face justice in the UK. It had real repercussions for them.”

The source also claimed that British families of those murdered by “the Beatles” were misled by UK government officials. “They were told that ‘if these men are not sent to the US, we won’t be able to prosecute them’. They actually said this to victims in the case, which is really shocking.”

Despite prosecutors concluding they had a realistic prospect of convicting Kotey, then security minister Ben Wallace told parliament in July 2018 that the UK did not have evidence to try him in the UK, and a US trial was the only option.

In the same month, a leaked letter from former home secretary Sajid Javid to Jeff Sessions, the US attorney general, revealed that the UK was sending Kotey to the US and had not demanded “assurances” that he would be spared the death penalty.Justifying the decision, Javid said that a “successful federal prosecution in the US is more likely to be possible”.

Transcripts from the supreme court also reveal that UK prosecutors believe they could try another “Beatles” member in Britain. Londoner El Shafee Elsheikh, 30, who was also sent to Iraq last week, could be charged at least with the offence of being a member of a proscribed organisation. The “DPP [the director of public prosecutions] now concedes that there may be sufficient evidence to charge and prosecute him [Elsheikh] here”, states a document.

Mother of alleged Isis killer loses legal fight against Home Office Read more

Two years after the CPS issued arrest warrants for Kotey in 2016, the Home Office withdrew his and Elsheikh’s British citizenship, leaving them stateless and at risk of “rendition and torture”.

Macdonald, a crossbench peer, said that stripping Kotey of his citizenship appeared to be an attempt by the government “to duck responsibility for bringing this Briton to justice.” He called for Kotey to be repatriated urgently from US custody to the UK.

“The government owes it to the victims, and to their families and friends, to put political cowardice to one side, to live up to its constitutional responsibilities, and to bring this man to justice before an English jury,” said Macdonald.

The details have emerged as the high court later this month considers an application for judicial review by the mother of ElSheikh to try and force the government to try him in the UK.

Maha Elgizouli is taking action against the CPS after her lawyers claimed there was sufficient evidence to successfully prosecute her son in Britain, rather than allow him to be taken to the US.

The Home Office has said its aim is for Kotey and Elsheikh to “face justice in the most appropriate jurisdiction, which maximises the chance of a successful prosecution” and stated the UK would work “extremely closely with the US government and others to achieve this aim”.

Yesterday, a Home Office spokesperson added: “Our priority is to deliver justice for the victims’ families and for the individuals suspected of these sickening crimes to face prosecution as quickly as possible.”