Last week, the High Court of England and Wales held that it was lawful for the British Government to assist American authorities with the investigation and prosecution of crime in death penalty cases, without first seeking or obtaining assurances that the death penalty will not be imposed as a result of such assistance. The decision is regrettable because it contradicts the United Kingdom’s stated policy to oppose capital punishment in all circumstances, and to promote abolition of the death penalty worldwide. Nonetheless, there are grounds for believing that the judgment will be overturned on appeal.
The Facts and Legal Issue
The facts were widely reported last July, when the Daily Telegraph leaked a letter from the UK Home Secretary, Sajid Javid, to the US Attorney General, assuring him that British authorities would help the US prosecute two terrorist suspects, Alexanda Kotey and El Shafee El Sheikh, by handing over all the evidence and information they had gathered on the two men. While states routinely assist other states in criminal matters, by a process known as Mutual Legal Assistance (MLA), Javid took the unusual step of writing: “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.” As Javid himself acknowledged, it has been the long-standing policy and practice of the UK to seek assurances that the death penalty will not be imposed before providing assistance. His decision was therefore widely criticized by politicians, lawyers, and civil society.
These criticisms formed the main ground for the legal challenge to Javid’s decision. The Claimant – El Sheikh’s mother, Maha El Gizouli – argued that the UK was legally barred from facilitating the imposition of the death penalty in other countries.
Non-facilitation of the Death Penalty
It is widely accepted that abolitionist states are legally prohibited from extraditing individuals without guarantees that the person will not be subject to capital punishment. El Gizouli argued that the rationale for this rule is that abolitionist states must not knowingly facilitate the death penalty abroad, and that this principle must apply to MLA cases.
The High Court agreed that the principle of non-facilitation underpins the prohibition on extradition, but asserted that “the [European] Court [of Human Rights] has not extended the “non-facilitation principle” beyond cases involving extradition to face the death penalty in a foreign state.”  As if to emphasize that the principle exists, but has not been extended, the Court said: “It is not, to our minds, a small step but an extension of a large moment which has not been recognised… anywhere.” .
There are two points to make about this. First, the High Court was wrong to characterize the silence of the Strasbourg Court as indicative of lawfulness. The Strasbourg Court has not explicitly extended the principle to cover MLA because Member States, including the UK, have long refrained from providing MLA without assurances. This is precisely why Javid’s actions attracted so much criticism in the first place.
The second point to make is that the extension of the principle has “been recognised” elsewhere. In the 2004 case of Andrew Wang, the Supreme Court of Switzerland ruled that “International co-operation in criminal matters is… excluded when the person accused in the requesting State is exposed to the death penalty. In such a case, Switzerland makes its cooperation conditional on the assurance that the sentence will not be required, pronounced or enforced”. The United Nations Office on Drugs and Crime has also accepted that the principle of non-facilitation extends to the provision of assistance. In a 2012 position paper, it stated that “If… a country actively continues to apply the death penalty for drug offences, UNODC places itself in a very vulnerable position vis-à-vis its responsibility to respect human rights if it maintains support to law enforcement units, prosecutors or courts within the criminal justice system.”
As these examples make clear, it is inconsistent to accept that the principle of non-facilitation exists, but then deny that it applies in practice. If the decision is appealed, then the Supreme Court must overturn the High Court’s decision and clarify that the UK must never knowingly facilitate the death penalty elsewhere.