UK Court Lifts an Obligation to Seek Assurances from USA in a Death Penalty Case

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Saturday, March 16, 2019
Michael Plachta

On January 18, 2019, the High Court of Justice, Queen’s Bench Division (Divisional Court), in a rolled-up hearing by Lord Chief Justice Burnett and Mr Justice Garnham, dismissed the claim brought by Maha El Gizouli – the mother of the ISIS terrorist Shafee El Sheikh – against the Home Secretary’s decision to provide mutual legal assistance (MLA) to the U.S. without requiring an assurance that the death penalty would not be imposed. While having rejected all grounds of challenge to the decision of the Home Secretary and the subsequent transfer of materials (including personal data) to the U.S. authorities, the Lordships nevertheless grant permission to apply for judicial review. The issue raised in this claim for judicial review is whether it is lawful for the Home Secretary to authorize mutual legal assistance (“MLA”) to a foreign state in support of a criminal investigation which may lead to prosecution for offences which carry the death sentence in that state, without requiring an assurance that the prosecution would not seek the death sentence. Assurances of this type are routine in extradition cases to territories where capital punishment exists. They are also required by the European Court of Human Rights (ECHR).