The Supreme Court held that the Home Secretary acted unlawfully by agreeing to share investigative material with the United States for the prosecution of Shafee El Sheikh without considering the Data Protection Act 2018. Much of the material was personal data, and the Act required a specific decision that the conditions for transferring it were met. A majority rejected the separate argument that the common law already prohibited assistance which might lead to the death penalty.
The evidence and the death penalty
Mrs Elgizouli challenged a UK decision to provide evidence for a US criminal investigation concerning her son. Some of the offences under investigation carried the death penalty.
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The US authorities requested mutual legal assistance. British prosecutors had considered that there was insufficient evidence at that stage to bring charges in the UK.
The United Kingdom’s long-standing policy was to oppose the death penalty and not to provide formal assistance unless the requesting state assured it in writing that the penalty would not be sought, imposed or carried out. Theresa May, then Home Secretary, requested that assurance. The United States offered only a narrower undertaking: evidence supplied by the United Kingdom would not be introduced in a death-penalty proceeding and, if it were, the death penalty would not be sought. British officials regarded this as inadequate because the material might still generate other evidence capable of leading to execution. The fuller assurance was not given.
In 2018 the Home Secretary authorised disclosure without obtaining the usual assurance. The material transferred included personal data for law-enforcement purposes. The minister had considered the diplomatic and prosecution issues but had not made the assessment required under the Data Protection Act 2018.
The common law claim
Mrs Elgizouli argued that it was already unlawful at common law to facilitate the death penalty by supplying evidence, just as it was unlawful to extradite or deport someone without an assurance. She relied on abolition of the penalty, the European Convention and its Thirteenth Protocol, European opposition to capital punishment, the established assurance policy, and authorities on extradition and delay before execution.
Lord Kerr accepted that the common law should now prohibit facilitation of a foreign trial where execution was a possible result, unless information urgently had to be passed to save life or protect national security. He would also have held that facilitating proceedings involving prolonged delay before execution was unlawful. The majority disagreed.
Lord Carnwath, with whom Lord Reed, Lady Black and Lord Lloyd-Jones agreed, and with whom Lord Hodge agreed on this issue, held that no established common law or Convention rule prohibited sharing information for a prosecution merely because the other country retained the death penalty. The common law develops cautiously. Legal opposition to capital punishment had come from Parliament and the Convention, not from a domestic rule of the breadth proposed. The authorities relied on concerned physical removal, not information about a person already abroad. Parliament had also recently required an assurance to be sought in another information-sharing context, without prohibiting transfer if none was obtained. An absolute common law ban would sit uneasily beside the Data Protection Act 2018, which permits transfers in defined circumstances, including an immediate serious threat to public security.
Lord Reed added that the Bill of Rights prohibition on cruel and unusual punishments concerns punishment by the Crown, not assistance to a foreign prosecution. Respect for human life does require especially close scrutiny of a decision which may endanger life. On the arguments made, however, departure from the usual policy was not itself irrational. Lord Hodge likewise held that the change of position did not fail the common law test of reasonableness.
The Data Protection Act 2018
The Court was unanimous that the decision was unlawful under the 2018 Act. The July 2018 transfer included personal data, processed for a law enforcement purpose by the Home Secretary as data controller. Part 3, which gives effect to the European Union Law Enforcement Directive, prohibits transfer to a third country unless its conditions are met.
The transfer had to be strictly necessary for a law enforcement purpose. It also had to be based on an adequacy decision, appropriate safeguards, or special circumstances. There was no adequacy decision and no safeguards. A recital to the Directive says that safeguards should take account of data not being used to request, impose or carry out a death penalty. Lord Carnwath considered that this condition could not have been treated as satisfied.
Special circumstances can include an individual law-enforcement or legal case, but necessity remains strict, and those grounds do not apply if the controller decides that the data subject’s fundamental rights override the public interest. The justification must also be documented. It was not disputed that the Home Secretary never considered the Act. Lady Hale held that the substantial compliance found by the Divisional Court was not enough: the controller had to consider the criteria consciously and at the time. Lord Carnwath said that the reasons actually relied on were political expediency rather than strict necessity. There was no separate assessment of whether the personal data themselves had to be transferred, and no assurance that an American prosecution would occur.
Questions left unresolved
Lady Hale thought the provisions pointed against permitting a transfer to facilitate a prosecution which might result in the death penalty, except where urgently necessary to save life or prevent an imminent crime. She would have so held had it been necessary, but the Court reached no concluded view. Lord Hodge reserved his position, and Lord Carnwath said that the failure to consider the point was itself another reason why the decision could not stand.
Lord Reed also identified possible rationality concerns: treating a foreign prosecution as necessary although there was insufficient evidence of a United Kingdom offence and a prosecution here might be an abuse of process, and treating possible execution as preferable to Guantanamo Bay. Because those points had not been argued, the Court did not decide them.
Verdict: The Supreme Court allowed the appeal. All seven justices agreed that the decision failed to comply with the Data Protection Act 2018. A majority rejected a separate common law prohibition on providing evidence without a death-penalty assurance. The Court did not decide that every such transfer would be unlawful under the Act.
Source: Elgizouli v Secretary of State for the Home Department [2020] UKSC 10
