Elgizouli v Secretary of State for the Home Department

The Supreme Court allowed the appeal on statutory/data-protection grounds and quashed the Secretary of State’s decision to transfer material to the United States without death-penalty assurances because the decision did not comply with the Data Protection Act 2018 (in particular Part 3 implementing the Law Enforcement Directive and the conditions in sections 72–76, and the data protection principles in sections 34–36). The Court was unanimous that the decision-maker must give conscious, contemporaneous consideration to the statutory transfer gateways (including the strict necessity test in section 73(2) and the limited “special circumstances” gateway in section 76) and to the relevance of recital guidance in the LED (including recital 71 and recital 72) when transferring personal data to a third country.

On the separate common-law ground — whether it is unlawful at common law to facilitate the imposition or carrying out of the death penalty by providing mutual legal assistance — the court was divided. Lord Kerr concluded that the common law has developed to prohibit facilitating the death penalty (subject to narrow, urgent exceptions), but a majority (Lord Reed, Lord Carnwath, Lord Hodge and others) rejected that conclusion and would not recognise the wider common-law “non-facilitation” principle. The practical result is that further assistance must not be given for proceedings in the United States without appropriate death-penalty assurances because the transfer was unlawful under the 2018 Act.

Background and nature of the claim.

• The appellant, Maha Elgizouli, sought judicial review of the Secretary of State’s decision to provide mutual legal assistance (MLA) — including witness statements and other material gathered by UK police — to the United States in respect of her son, Shafee El Sheikh, who was suspected of extremely serious offences in Syria. Some offences under investigation in the United States carried the death penalty.
• The Divisional Court dismissed the claim on the merits but certified two questions of public importance: (i) whether it is unlawful at common law to provide MLA which will facilitate the imposition of the death penalty abroad; and (ii) whether such transfers of personal data are lawful under Part 3 of the Data Protection Act 2018, read with relevant EU data-protection law.

Procedural posture.

• Appeal to the Supreme Court from the Divisional Court ([2019] EWHC 60 (Admin)).

Issues framed by the court.

1. Whether the common law prohibits the Government from facilitating the imposition or execution of the death penalty by providing MLA or other assistance to a foreign state.
2. Whether the transfer of personal data for law-enforcement purposes to a non-EEA country (the United States) without the usual death-penalty assurances complied with Part 3 of the Data Protection Act 2018 (implementing the Law Enforcement Directive), in particular sections 34–36 and the international-transfer rules in sections 72–76.

Key facts.

• The United States requested MLA under a 1994 UK–US treaty for materials from UK police investigations into alleged terrorist offences in Syria. The Home Secretary’s predecessor had sought full written assurances that the death penalty would not be sought or carried out; the US response in March 2016 was not the full assurance requested. After diplomatic exchanges and pressure from the US, senior UK ministers decided in June 2018 to provide material without obtaining the full assurances. The appellant challenged that decision.

Court’s reasoning and conclusions.

• Data protection: the Court (unanimously) held that, insofar as the material transferred constituted personal data processed by a competent authority for law-enforcement purposes, the data controller (the Secretary of State) was required to address his mind to the statutory conditions in Part 3 of the Data Protection Act 2018 when authorising the transfer. The statutory framework requires a strict necessity assessment for transfers (section 73(2)), consideration of adequacy, appropriate safeguards (section 75) or, failing that, the narrow special-circumstances gateway (section 76), and documentation of the justification. The Secretary of State did not give the requisite conscious, contemporaneous consideration to these statutory criteria; substantial or retrospective compliance was insufficient. The transfer therefore failed under the 2018 Act.
• Common law: Lord Kerr (dissenting on this point) concluded that, having regard to the Bill of Rights, domestic abolition of capital punishment, ECHR Protocol 13 and the strong, near-universal international abhorrence of the death penalty, the common law should be developed to prohibit facilitating the death penalty by transfer of evidence except in narrowly defined and urgent circumstances. A majority disagreed, considering that recognition of such a broad common-law rule would not be an incremental development and that parliamentary and international law developments (including statutory schemes and existing ECHR jurisprudence) counsel caution. The majority therefore dismissed the common-law ground.

Practical outcome. The Secretary of State’s decision to provide material in July 2018 without obtaining appropriate assurance was unlawful under the Data Protection Act 2018; no further assistance should be given for proceedings in the United States without appropriate death-penalty assurances. The court declined to establish a binding, broad common-law prohibition on facilitation of the death penalty.

The appeal is allowed on the Data Protection Act 2018 ground because the Secretary of State did not comply with Part 3 of the 2018 Act (including the transfer conditions in sections 72–76 and the data-protection principles in sections 34–36) and did not give conscious, contemporaneous consideration to the statutory gateways; accordingly the transfer was unlawful. On the common-law ground the court was divided: Lord Kerr would recognise a common-law prohibition on facilitating the imposition or execution of the death penalty (subject to narrow, urgent exceptions), but a majority rejected that development. The Secretary of State may not provide further assistance in respect of proceedings in the United States without appropriate death-penalty assurances.

Appeal from the Divisional Court, Administrative Court, Queen’s Bench Division: [2019] EWHC 60 (Admin). Two questions of public importance were certified for appeal to the Supreme Court.