The Home Office has bowed to pressure over two British-raised jihadis facing the possibility of execution in the US by temporarily suspending cooperation with the American authorities over the case, lawyers have said.

Although it is only a temporary concession, it marks the first breach in the UK government position. The Home Office could be forced to extend the suspension pending the outcome of a judicial review.

A Home Office spokesperson said: “Yesterday we received a request from the legal representative of the family of one of the suspects to pause the MLA [mutual legal assistance] response. We have agreed to a short-term pause. The government remains committed to bringing these people to justice and we are confident we have acted in full accordance of the law and within the government’s longstanding MLA policy.”

The move came after the mother of El Shafee Elsheikh, one of the pair, launched an emergency legal challenge seeking to quash the British home secretary’s decision to provide evidence that would be used at trial without the usual assurance that they would not face the death penalty. Sajid Javid’s decision has been widely seen as undermining the UK’s opposition to the death penalty.

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Ben Emmerson, the UN special rapporteur on counter-terrorism and human rights, writing in the Guardian, described the government as beating a tactical retreat on the issue, caving in to legal and political pressure.

Speaking later, he said: “This is a significant breakthrough, this decision by the government to pause at this point to enable the courts to rule on the application. It is an indication of how deep concern is here.

“The legal grounds for challenge are really very strong. I would expect this case to be brought on swiftly and the government will be required to disclose the minutes and notes of every meeting and conversation that may have taken place here and with the Americans.”

Alexanda Kotey and Elsheikh, who were brought up in Britain but had their passports revoked, are accused of being part of the Isis cell labelled “the Beatles” by hostages and are suspected of involvement in multiple murders or abductions of hostages, including of the British aid workers Alan Henning and David Haines and the American journalists James Foley and Steven Sotloff.



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Kotey and Elsheikh were captured in February by Syrian Kurdish fighters, prompting sensitive negotiations between the UK and the US governments over where they should be prosecuted.

The other two members of the group alleged to have been involved in the killings are Mohammed Emwazi, believed killed in a US airstrike in 2015, and Aine Davis, convicted of being a member of a terrorist organisation and jailed for seven and a half years by a court in Silivri, Turkey, in May 2017.

On Monday, the Daily Telegraph published a letter from Javid to the US attorney general, Jeff Sessions, disclosing an agreement between the two countries that the UK, rather than prosecuting the two, would provide evidence to the US. Javid added that the UK would not seek its usual assurance that the death penalty would not be applied.



Gareth Peirce and Anne McMurdie, the lawyers representing Elsheikh’s mother, wrote to Javid on Tuesday asking for his immediate undertaking that this cooperation be suspended or face an injunction.

In a press statement, the two lawyers said the mother had long made clear her opposition to the actions of Islamic State. “Her request is that the norms of internationally accepted due process form the basis of any trial of accusations concerning her son,” they said.

“On 25 July government lawyers representing the home secretary gave an undertaking that no ‘further’ provision of assistance would take place. The exact time span of the undertaking was not specified in that letter. Since then it has been qualified as constituting at present only a very short-term promise.”

Peirce and McMurdie sent to the government lawyers on Thursday detailed grounds as to why they regarded the minister’s decision as unlawful, setting out an urgent timetable for the case to be put before the court and for an application for a full judicial review of the minister’s decision.

The application raises questions of enormous constitutional importance, including the ability of a minister to agree such a change without reference to parliament, Peirce and McMurdie said. “Yet the minister’s letter reveals a clear and dramatic departure from the UK’s long-standing international and domestic commitment to oppose the continuing exercise of the death penalty,” they said.