Elgizouli v Secretary of State for the Home Department  UKSC 10
The Supreme Court has today handed down judgment in a “leapfrog” appeal from the Divisional Court concerning a decision by the Government to provide mutual legal assistance to the United States to facilitate the prosecution of offences carrying the death penalty, without seeking assurances that the death penalty would not be imposed. The Supreme Court’s judgment is significant, in particular, in the field of data protection law.
The questions that were certified by the Divisional Court were:
(i) Whether it is unlawful for the Secretary of State to exercise his power to provide mutual legal assistance so as to provide evidence to a foreign state that will facilitate the imposition of the death penalty in that state on the individual in respect of whom the evidence is sought; and
(ii) Whether (and if so in what circumstances) it is lawful under Part 3 of the Data Protection Act 2018, as interpreted in light of relevant provisions of EU data protection law, for law enforcement authorities in the UK to transfer personal data to law enforcement authorities abroad for use in capital criminal proceedings.
On the first question, the majority (Lord Carnwath and Lord Reed, with whom Lady Black, Lord Lloyd-Jones, and Lord Hodge agreed) concludes, in agreement with the Divisional Court, that the common law does not recognise a right to life that prevents the Secretary of State from providing mutual legal assistance to, or sharing intelligence with, a foreign country where that might lead to a risk of the death penalty. Lord Kerr, in a powerful dissenting judgment, concludes that it is unlawful at common law for the state to facilitate the execution of the death penalty against its citizens or others within its jurisdiction anywhere in the world.
The Supreme Court is, however, unanimous in holding that the Secretary of State’s decision was unlawful under the Data Protection Act 2018. Much of the information provided, or to be provided, to the US authorities consisted of personal data, and the Court concludes that the processing of such data by the Secretary of State required a “conscious, contemporaneous consideration” of the relevant criteria under the 2018 Act. “Substantial compliance” with those criteria, as found by the Divisional Court, was not enough. (It was not in dispute that the Secretary of State, when making the decision in question, did not address his mind to the 2018 Act at all.) The judgment notes that the Supreme Court was assisted on the data protection points by a helpful intervention from the Information Commissioner, which had not been available to the Divisional Court.
The judgment is significant, in particular, for the analysis of Part 3 of the 2018 Act (Law Enforcement Processing), the test of necessity under that Act, and the rules on transfers of personal data to third countries. The analysis of Lord Kerr and Lord Reed on how the common law develops, and the state of UK and international law on the death penalty, is also required reading.
The judgment and Supreme Court press summary is available here.
Julianne Kerr Morrison acted for the Appellant. Gerry Facenna QC and Conor McCarthy acted for the Information Commissioner.