ISIS Beatles CAN face trial in America: Terror suspect's mother loses High Court bid to stop pair's prosecution in US - meaning they face life in 'hell on earth' supermax prison if convicted
- Alexanda Kotey, 36, and El-Shafee El-Sheikh, 32, were allegedly in terror cell
- 'Beatles' were behind beheading of two British aid workers and two journalists
- Sheikh's mother had challenged initial decision to share information in case
- She attempted numerous legal attempts to stop the material being sent to US
- But High Court ruled this morning the information supply could continue
- An order stopping the UK evidence being sent has now been lifted by judges
A last gasp challenge which could have stopped the British ISIS Beatles facing justice in America has been thrown out of the High Court this morning.
Maha Elgizouli, whose son El Shafee Elsheikh is in US custody with his co-accused Alexanda Kotey, brought a judicial review request earlier this month over Priti Patel's decision to provide material on the pair to the American government under a "mutual legal assistance (MLA)" request.
It saw the court initially making an order stopping the Secretary of State from providing any further information to the United States Government until it had reached a decision.
But today the Queen's Bench Division threw out the claim, branding it 'not properly arguable' and shutting down the route to frustrate any US prosecution.
This latest wrangle came after the American authorities pledged the pair would not face the death penalty if convicted in the country.
The prospect of them being executed had caused an even earlier stop on the evidence being supplied to the States after Ms Elgizouli - who has had at least £23,000 of legal aid - took action.
A judgement released today confirmed: 'We have concluded that this application is not properly arguable, and we refuse permission to apply for judicial review.
'On the handing down of this judgment, the Order referred to, prohibiting the Secretary of State from providing any further material to the United States Government, has now ceased to have effect.'
Elsheikh and Kotey are accused of belonging to a cell of executioners in Syria - nicknamed The Beatles because of their British accents - responsible for killing a number of Western captives.
The new court move means they face a life sentence at the notorious 'supermax', formally known as the US Penitentiary Administrative Maximum Facility in Florence, Colorado.
El-Shafee El-Sheikh (left), 32, and Alexanda Kotey (right), 36, were members of the 'Beatles' terror cell which was behind the beheading of two British aid workers and two US journalists
Maha Elgizouli, whose son El Shafee Elsheikh, refused to comment on the legal proceedings
Maha Elgizouli with her son El Shafee Elsheikh, when he was a younger in childhood snap
At the hearing in London on September 11, Ms Elgizouli's lawyers argued Ms Patel's decision was unlawful as it is incompatible with the Data Protection Act, and are asking the court to order that no material should be provided to the US.
In written submissions to the court, Richard Hermer QC said the international transfer of the data is "not strictly necessary" in circumstances where the Director of Public Prosecutions (DPP) is due to make a decision "imminently" about whether the pair should be prosecuted in the UK.
He argued Ms Patel did not make sufficient inquiries as to whether a prosecution would be undertaken in the UK, and she "failed to address adequately or at all" what the appropriate jurisdiction for a prosecution would be when reaching her decision.
The barrister added: "It is in any event irrational to decide to transfer data, and provide co-operation permitting the use of that data in US proceedings, in circumstances where there is a realistic prospect that the (DPP) may bring a prosecution... in this jurisdiction."
Mr Hermer said the hearing is urgent as the US Government has indicated it will transfer the pair to Iraq for trial, where if found guilty they will be executed, if it does not receive all the evidence the UK has on them by October 15.
He said the DPP had indicated in late August that he would reach his decision on whether they should face trial in the UK in "three to four weeks".
Lawyers for Maha Elgizouli claimed Home Secretary Priti Patel has not considered UK charges
Other members of the 'Beatles' cell are said to include Mohammed Emwazi, the group's ringleader, also known as Jihadi John, who was killed in a US air strike in 2015, while Aine Davis is in jail in Turkey for terror offences, while Aine Davis is in jail in Turkey for terror offences
Ms Elgizouli's case is opposed by the Home Secretary, and lawyers representing her say she acted "rationally and lawfully" when reaching her decision.
Sir James Eadie QC, representing Ms Patel, said the DPP has now concluded the review and determined that there is sufficient evidence to prosecute Elsheikh for a number of "terrorism-related offences".
He told the court that those offences either require consent of the Attorney General, Suella Braverman, or her permission for the DPP to consent to a prosecution.
Mr Hermer said there was a charging decision by the DPP in 2016, made with the consent of the Attorney General, that there was sufficient evidence to charge Kotey - whose whereabouts were then unknown - with five offences of murder and eight of hostage taking.
He told the court the US authorities have "always made clear their preference" for both men to be tried in the UK, and said Ms Patel's decision to share evidence was "premature" while there was still uncertainty about where they should face prosecution.
Dame Victoria Sharp and Mr Justice Garnham will give their ruling at 10.30am on Tuesday.
Elsheikh and Kotey were captured in January 2018, sparking an international row over whether they should be returned to the UK for trial or face justice in another jurisdiction.
They were transferred to the custody of the US military in Iraq in October 2019 and remain in American custody.
American officials revealed last month, in a letter to Ms Patel from US Attorney General William Barr, that they will not insist on the death penalty for the pair following any prosecution.
Ms Elgizouli previously brought a challenge to former home secretary Sajid Javid's decision to share evidence with US authorities without seeking assurances the men would not be executed if convicted in the US.
Her case was dismissed by the High Court in January 2019 but that decision was overturned in March this year by a panel of seven Supreme Court justices, who unanimously allowed her appeal - ruling the decision to share evidence with the US was unlawful under the Data Protection Act.
In June 2018, Mr Javid authorised the sharing of 600 witness statements gathered by the Metropolitan Police under a "mutual legal assistance" agreement in a letter to then US attorney general Jeff Sessions.
Mr Javid faced intense criticism after the letter to Mr Sessions was leaked, with MPs accusing him of breaching the UK's long-standing opposition to the death penalty.
Then prime minister Theresa May supported Mr Javid's original decision, which was also backed by current Prime Minister Boris Johnson when he was foreign secretary.
Kotey and Elsheikh, who were raised in the UK but have been stripped of their British citizenship, were captured by the Syrian Democratic Forces in January 2018.
They are said to have been members of the cell that also included Mohammed Emwazi, known as Jihadi John, who was killed in a US air strike in 2015, and Aine Davis, who has been jailed in Turkey.
Emwazi appeared in a number of videos in which hostages, including British aid workers David Haines and Alan Henning and US journalists James Foley and Steven Sotloff, were killed.
The prison cell that's a fate worse than death: If convicted in the U.S., the jihadi 'Beatles' will be spared execution. But that would be a release compared with the mental torture of its most secure jail, writes TOM LEONARD
After just two years in Colorado's dreaded Supermax Prison, hate preacher Abu Hamza was frantically pounding on his cell door to get out, his lawyers decrying its 'inhuman and degrading conditions' and insisting he'd return to a British jail 'in a second' if he could.
Perhaps his successor in British Islamist extremism, Isis fanatic Alexanda Kotey, had Hamza's bleak fate in mind — even his famous hooks were removed from the stumps of his arms — when he recently said the 'worst thing that could happen' would be to be locked up in a U.S. jail.
Kotey and fellow British jihadi El Shafee Elsheikh face extradition to America after officials there promised they would not be put to death if convicted of barbaric crimes as members of the notorious 'Beatles' terror cell which was behind the beheading of two British aid workers and two U.S. journalists.
Grim: A Supermax cell. Since it opened in 1994 at a cost of $60 million, America's only Supermax prison, whose official name is ADX (or Administrative Maximum Facility) Florence, has housed the country's most notorious and violent criminals
Given that Hamza's offences pale beside those of 'Ringo' and 'George', as the pair were dubbed by prisoners, they will almost certainly join him at Supermax.
It's a fate that may strike many as worse than the death penalty as they are locked up to rot. Since it opened in 1994 at a cost of $60 million, America's only Supermax prison, whose official name is ADX (or Administrative Maximum Facility) Florence, has housed the country's most notorious and violent criminals.
Prisoners go to the 'Alcatraz of the Rockies' not in any hope of rehabilitation but purely for the purposes of punishment and assured incarceration.
It is designed for male inmates (there are no women) deemed the most dangerous and so contemptuous of human life that they require the tightest control. In many cases, their escape is considered to pose a serious threat to national security.
Nobody has ever escaped from Supermax and, more to the point, few are ever heard from again once they pass through its encircling fortress of reinforced concrete walls, its fields of razor wire and gun towers. Inside, inmates begin a new life inside a tiny concrete cell with absolutely minimal human contact.
Supermax has been variously described as 'the prison of prisons', 'life after death', and a 'high-tech version of Hell, designed to shut down all sensory perception'.
'It's only my personal opinion, but I'll tell you, I don't know if anyone deserves to be in a place like this,' said Robert Hood, warden at ADX Florence from 2002 to 2005. 'There's no other way to say it — it's worse than death.'
If the cocky pair are expecting to enjoy their notoriety, they had better think again. Far more notorious prisoners are currently there. As well as Hamza, they include Mexican drug cartel king Joaquin 'El Chapo' Guzman, 'Unabomber' Ted Kaczynski and former Soviet double agent Robert Hanssen.
The place heaves with Muslim extremists — including Richard Reid, the British Al Qaeda 'Shoe Bomber'; Boston Marathon bomber Dzhokhar Tsarnaev, and Zacarias Moussaoui, key planner of the September 11 terror attacks.
Not that its 410 inmates — delivered to the prison in buses, armoured cars and occasionally Black Hawk helicopters — have any opportunity to fraternise.
The 37-acre facility sits 115 miles south of Denver with spectacular views of the Rockies — which the inmates cannot see. The outer perimeter is guarded by a dozen huge gun towers, 12 ft high razor-wire fences, hidden pressure pads and patrols by armed guards.
A 2014 report by Amnesty International entitled Entombed: Isolation In The U.S. Federal Prison System claimed Supermax breached international law.
Specially designed 'control units' function as prisons within prisons. Inmates are confined in single-person, 7 ft-by-12 ft cells for 23 hours a day. The hour in which they are allowed out, always in shackles, can be spent exercising or, if they've earned the privilege, making a heavily monitored phone call.
There's no exercise yard at Supermax. Inmates exercise as they sleep and eat — alone. They are led to an outdoor cage slightly larger than the prison cells but sunk into a concrete pit resembling an empty swimming pool. It is designed to stop them working out their location and forming an escape plan.
The pit includes an exercise bar and enough space to walk ten steps in a straight line or 31 in a circle. When they're going to and from their cells, prisoners are not only accompanied by guards but monitored by hundreds of cameras and motion sensors. The prison's 1,400 steel doors open remotely and can be closed simultaneously if a panic button is pressed.
Inmates can find little comfort in their cell. The bed is a poured concrete slab covered with a thin mattress and blankets. Furniture consists of an immovable concrete desk and stool. There is also a combined lavatory, sink and drinking fountain.
Each cell has a 4in-wide slit-like window angled so as neither to provide a view of the sky nor of other cells. An inmate cannot tell where he is in the prison by peering through it but merely whether it's night or day.
Each cell has a 4in-wide slit-like window angled so as neither to provide a view of the sky nor of other cells. An inmate cannot tell where he is in the prison by peering through it but merely whether it's night or day.
An en-suite shower is on a timer, the electric light can only be switched off by guards, and a black- and-white TV — showing carefully-curated educational and religious programmes — can be watched if the inmate behaves well.
Smooth concrete walls are sound-proofed to ensure inmates cannot shout or tap messages to each other. Visitors have described the silence that pervades the place as chilling and eerie.
Prisoners eat in their cells, with meals slid through holes in the doors. The food is bland even by prison standards as nothing on the menu can allow inmates to harm themselves or create unhygienic conditions in their cell.
If they do get ill, prisoners generally have to talk to a doctor by video — another effort to minimise potentially risky contact.
The Isis Beatles — reportedly responsible not just for beheadings, but also crucifixions and torture using electric shocks and waterboarding — can expect to end up in the Special H-Security Unit, also called the H-Hut.
It is reserved for prisoners whose communications with the outside world demand the strictest controls. Some of those incarcerated here don't even have contact with guards when they exercise. Their cell doors open automatically to a tunnel.
The only visitors H-Hut prisoners are allowed are lawyers and immediate family, speaking over telephones through reinforced glass windows. All conversations are monitored except official legal ones with their lawyers.
And if there's one thing on which former prison staff and inmates will generally agree, it is that Supermax makes capital punishment look the humane option. Critics have long argued its harsh regime of extreme isolation and sensory deprivation has a ruinous effect on inmates' mental health, noting that at least eight of them have committed suicide there despite the stringent precautions.
Many more, including Richard Reid, have staged hunger strikes.
'It's only my personal opinion, but I'll tell you, I don't know if anyone deserves to be in a place like this,' said Robert Hood, warden at ADX Florence from 2002 to 2005. 'There's no other way to say it — it's worse than death.'
Inmate Eric Rudolph, who bombed an Atlanta car park while the city was hosting the summer Olympics in 1996, once claimed that the isolation was driving him insane. 'It is a closed-off world designed to isolate inmates from social and environmental stimuli, with the ultimate purpose of causing mental illness and chronic physical conditions such as diabetes, heart disease and arthritis,' he said.
'Part of the plan here is sensory deprivation,' said Charles Harrelson, the father of Hollywood star Woody Harrelson who was also a professional killer and Supermax inmate. 'I'm unable to exercise any control over anything outside this cage. I simply do my best with what I have.'
He eventually gave up even taking his hour of exercise, staying in his room and reading books or listening to the radio.
A 2014 report by Amnesty International entitled Entombed: Isolation In The U.S. Federal Prison System claimed Supermax breached international law.
Two years earlier, a class action lawsuit on behalf of mentally-ill prisoners claimed many of them 'interminably wail, scream and bang on the walls of their cells' or mutilate their bodies with whatever objects they can find.
The prison's defenders have pointed out that, at least, Supermax hasn't suffered the savage violence that has ripped through other U.S. prisons and, given the distancing of prisoners, has so far come through the coronavirus pandemic unscathed.
'George' and 'Ringo' were members of a gang who, even by the crazed standards of Isis, were vicious jailers to their terrorised Western captives. Spending the rest of their days in Supermax may be brutal but it's certainly fitting.
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