British foreign fighters who have been captured in Iraq and Syria could be brought back home to face a trial in cases where it is believed there is enough evidence to convict them, Whitehall sources revealed last night.
Officials are seeking legal advice from the Attorney General on whether the UK can successfully prosecute two members of the terror cell ‘the Beatles’, and other Britons being held.
Hostage-killers Alexanda Kotey and El Shafee Elsheikh are currently imprisoned by Kurdish militia in Syria after being captured as they tried to flee the country.
But it is believed they were stripped of their British citizenship because they were considered highly dangerous and yet the UK did not have enough evidence to prosecute them in the courts. It means the prospect of them being brought back is low.
Hostage-killers Alexanda Kotey (left) and El Shafee Elsheikh (right) are currently imprisoned by Kurdish militia in Syria after being captured as they tried to flee the country. They are unlikely to be brought back under the new guidance
Officials are seeking legal advice from the Attorney General Jeremy Wright (file image) on whether the UK can successfully prosecute two members of the terror cell ‘the Beatles’, and other Britons being held
However the CIA are understood to have led the hunt for the notorious group, who were involved in the execution of British aid workers and US citizens, and have amassed much of the evidence.
US agencies are currently wading through intelligence files, including those belonging to the UK, to decide whether to prosecute them in America.
Failing that, it is understood America would likely put pressure on the US-backed Syrian Democratic Forces to transfer them to Iraq, where there is a legal system in place.
A further three Britons are thought to be being held by local forces either in Iraq or Syria, including Jack Letts, nicknamed ‘Jihadi Jack’, who maintains his innocence.
Officials are understood to be building a legal pathway to transfer jihadists captured in Iraq and Syria into the British justice system.
A senior Whitehall source told the Mail: ‘The last thing any of us want is for us to get these people back and then for the court to throw the case out because they claim they were tortured or badly treated.’
There are concerns that the legal process in Syria is not compatible with British law and that once suspect extremists are flown into the UK the case against them will not hold up in the courts.
Ministers also fear there has not been enough evidence gathered on British foreign fighters on the ground and much of the intelligence gathered will inadmissible presenting a ‘legal nightmare’.
A further three Britons are thought to be being held by local forces either in Iraq or Syria, including Jack Letts, nicknamed ‘Jihadi Jack’ (pictured), who maintains his innocence
A senior defence source said: ‘It is a legal nightmare. There is no sympathy for these guys. It would be much easier for us if they were all dead.’
In the case of the Beatles, British intelligence is currently believed to be working closely with Kurdish militia to ensure the two men are being treated in accordance with international law.
There is a concern that if the men are tortured then a subsequent case against them could collapse.
Ministers have already blocked plans to fly back a further Briton being held in Iraq because they believed such a move would ‘open the floodgates’ and lead to him walking free on UK streets due to a lack of evidence.
At the Munich Security Conference yesterday, a member of the Syrian opposition noted that the Britons ‘had a very high threshold’ when it came to prosecuting its citizens.
Ministers are currently divided on whether they want to see British foreign fighters brought back to the UK, with several fearing that there is a risk they could walk free if they are flown home.
Defence Secretary Gavin Williamson has said he does not want the captured ‘Beatles’ to return to Britain for trial, but others want them to face justice wherever possible, even if that is the UK
Defence Secretary Gavin Williamson has said he does not want the captured ‘Beatles’ to return to Britain for trial, but others want them to face justice wherever possible, even if that is the UK.
Sources said that ultimately such a decision will depend on the will of those holding them captive, the intelligence available, what out of that can be presented to the courts, and legal advice.
The UK is increasingly using the power to strip Britons of their citizenship in cases where they are known to be dangerous, but the evidence would not stand up in the courts.
Diplomatic sources also acknowledged that the death penalty is legal in both Syria and Iraq, and that a prosecution in one of those countries could potentially lead to UK citizens being hanged.
A diplomatic source said: ‘The preference would be for them to be returned to the UK, especially if they might face the death penalty abroad.’
The parents of murdered US citizen James Foley, who was executed by ‘the Beatles’, told the New York Times on Friday: ‘The British government long ago rescinded their citizenship and seems to want nothing further to do with them.
‘They should be brought to America to face our justice system.’
More than half of those detained in the battle against IS in Syria are foreign fighters from all over the world, including Europe, Russia, China and Arab nations.
The Syrian Kurdish militia holding them have formally asked foreign governments to take their nationals to be tried at home but have said ‘no one wants to take them back or to try them’.