Here in the UK, we have not had the death penalty for over 50 years. In fact, the last hanging in England took place in 1964 when Peter Allen and Gwynne Evans were hanged for the murder of John West, 15 months before the death penalty was abolished.
Since then, there has been a long-held opposition to the death penalty which has been applied in extradition cases.
What is extradition
Extradition means legal proceedings for the return of a person in the UK to another country to face criminal proceedings (or proceedings abroad to return a person to the UK).
How is the death penalty relevant?
When the requesting country has the death penalty available, and it could apply to the criminal proceedings in question, the UK would usually seek an assurance that the person will not face the death penalty if extradited. If an assurance is not given, then UK law would prohibit the removal from the UK of that person. The death penalty is forbidden under the European Convention of Human Rights.
Why is it in the news now?
Alexander Kotey and El Shafee Elsheikh are alleged to have been involved in the torture and beheading of more than 27 victims as members of a cell of Isis executioners in Syria and Iraq. They are not subject to extradition as they were not arrested in the UK. They have been stripped of their British citizenship, and discussions have been taking place as to whether they should be returned to the UK for trial or taken to the USA. Victims have been both UK and US citizens.
In an unusual move, Sajid Javid, the UK Home Secretary, has told the USA that he would not seek an assurance over the use of the death penalty and agrees to the US request for mutual legal assistance ("MLA").
What is mutual legal assistance?
MLA is a method of co-operation between states for assistance in investigating or prosecuting criminal offences. The guidelines for MLA are similar to the law in extradition outlined above, in saying that if the death penalty is a possible sentence, an assurance will be sought that such a sentence will not be carried out, in the event of a conviction.
What are the implications?
Commentators are questioning whether this is a relaxation of the policy of opposition to the death penalty in the UK. Javid apparently stated in his letter that this does not alter the stance of the UK, but it certainly raises questions as to whether assurances would not be sought in the future and in what circumstances. This stance has caused Ken Macdonald QC, a former director of public prosecutions ("DPP"), to comment that the Home Secretary has “abandoned a moral policy” and that he has "shoved the door of the death chamber ajar" (The Guardian, 24 July 2018).
The Howard League for Penal Reform has already indicated that it may bring legal proceedings to challenge the decision of the Home Secretary.