Ben Keith features in the Telegraph, this article was first published on 20 August 2020.
Bill Barr, the US Attorney General, this week assured the Home Office it would drop the death penalty for Alexanda Kotey and El Shafee Elsheikh if the UK shares "important evidence" it has on the pair by October 15.
The Trump administration believes it will be difficult to launch a successful prosecution of the two members of the four-man cell nicknamed The Beatles in the US without the materials, which includes wiretaps, voice analysis and 600 witness statements gathered by the Metropolitan Police.
Mr Barr’s office raised the prospect that the Londoners could be handed over to authorities in Iraq - where they are currently being held in US military custody - if the UK does not act quickly. Such a move would be problematic as Baghdad also has capital punishment, which the UK objects to.
Legal experts raised concerns about whether Britain would be able to work through the challenges in the case in time.
“Can we give them the evidence quickly? Yes. I think in practical terms the UK is prepared and ready to hand it all over. But there’s an outstanding appeal over whether it can. I’d be extremely surprised if the government then went against the court,”
Ben Keith, a barrister specialising in extradition and human rights, told the Telegraph.
“There will be a discussion now to see if they can send the evidence even with an assurance. It will require at the very least for the High Court to say that’s OK.”
The Supreme Court ruled in March that the US government's demand to use crucial evidence from the UK was unlawful, in a case brought by Elsheikh's mother.
It is unclear when the court, which only returns from recess on October 1, will issue its final order. Even if it decides to allow the evidence sharing, further litigation could ensue, as Mr Barr pointed out this week
A source close to the case in the US told the Telegraph they too had concerns about how long the extradition process was taking.
"They (the US) sees this as Britain's problem and is tired of the holdups," he said. "They've given them a date but things have moved so slowly in the case so there are worries the UK may stall and the US will give up patience."
Elsheikh, 32, and Kotey, 36, have also been stripped of their British citizenship and banned from returning to the UK. They are appealing the decision.
Shamima Begum, a former schoolgirl from Bethnal Green who left the UK to join Islamic State in Syria, won her own appeal earlier this year.
“You have the citizenship case and the data case at the Supreme Court. Both issues could hold up any extradition I would have thought," Mr Keith said. "They can’t go anywhere unless Elsheikh’s mother loses her appeal and the timings aren’t clear.”
Diane Foley, the mother of American journalist James Foley, who was held hostage and brutally killed by Islamic State militants, on Thursday called on Ms Patel to work with the US to bring the pair to trial.
She said it has been a "long journey to even find any people to hold accountable for these crimes", adding: "These two men are only two of hundreds of people who've been involved in terrible human rights atrocities in Syria." Ms Foley told the the BBC: "I feel that the death penalty is too easy, it allows them to be martyrs, if you will.”
Ben Keith is a leading specialist in Extradition and International Crime, as well as dealing with Immigration, Serious Fraud, and Public law. He has extensive experience of appellate proceedings before the Administrative and Divisional Courts, Criminal and Civil Court of Appeal as well as applications and appeals to the European Court of Human Rights (ECHR) and United Nations.