Sharing evidence with the US without death penalty assurances unlawful


Re: Elgizouli (AP) v Secretary of State for the Home Department [2020] UKSC 10

The appellant’s son is alleged to have been one of a group of terrorists operating in Syria, involved in the murder of US and British citizens. In 2015, the US made a mutual legal assistance request to the UK in relation to an investigation into the activities of that group. The Home Secretary requested an assurance that the information would not be used directly or indirectly in a prosecution that could lead to the imposition of the death penalty but the US refused to provide a full death penalty assurance. The Home Secretary agreed to provide information to the US without requiring any assurance.

The appellant challenged the Home Secretary’s decision by way of judicial review. The questions for the Supreme Court were first whether it is unlawful for the Secretary of State to exercise his power to provide MLA so as to supply evidence to a foreign state that will facilitate the imposition of the death penalty in that state on the individual and second whether it is lawful under Pt 3 of the Data Protection Act 2018 for law enforcement authorities in the UK to transfer personal data to law enforcement authorities abroad for use in capital criminal proceedings.

A majority of the Supreme Court dismissed the challenge brought under the common law but unanimously held that the decision failed to comply with the 2018 Act. In finding that the common law had not evolved to recognise a principle prohibiting the provision of MLA that will facilitate the death penalty, the death penalty has never attracted the attention of the common law: the key developments have come from Parliament and the ECHR, not from the domestic courts. Under the Crime (Overseas Production Orders) Act 2019, s 16 there is nothing that specifically prohibits the Home Secretary from exchanging material in cases whether they have sought but not received assurances that the information they exchange will not be used to facilitate the death penalty. This would, moreover, not be an incremental development in the law.

The Court was unanimous in holding that the Home Secretary’s decision was unlawful under the 2018 Act, which requires the data controller to address his mind to specific requirements of the Act and this was not done.

Edward Craven, Richard Hermer QC, Tim Owen QC and Mark Summers QC were involved in this case.