In Elgizouli v Secretary of State for the Home Department [2020] UKSC 10, a seven-Justice Supreme Court held that the provision of material by way of mutual legal assistance to the US for the prosecution of Shafee El Sheikh and Alexanda Kotey, without obtaining an assurance that the evidence would not be used in a death penalty trial, was unlawful. The consequences of this judgment, both generally and specifically for Mr El Sheikh and Mr Kotey, are unknown. Where does it leave the provision to the US of further material in relation to these two individuals? In what circumstances could the UK government truly claim to be satisfied that the transfer would be lawful? Only a careful reading of this judgment can assist, and even then such assistance may be limited.

Summary

For a comprehensive summary of the judgment, see the Supreme Court’s press summary here. It is also worth reading the summary of the somewhat complex factual background in Lord Kerr’s judgment, at paragraphs 20 to 61.

Mrs Elgizouli, the mother of Mr El Sheikh, brought a judicial review of the decision to provide mutual legal assistance (‘MLA’), in the form of the product of police investigations, to the US without any assurances that the evidence provided would not be used in a trial that may lead to the imposition of the death penalty. This decision only came to light after the Daily Telegraph published a letter from the Secretary of State to the US Attorney General revealing that such assistance had been provided. Otherwise, the provision would not have been public knowledge. In fact the Secretary of State revealed, as part of this case, that MLA had been provided twice before without a death penalty assurance, but this had been in secret. The High Court dismissed the application.

The certified questions to the Supreme Court were:

  • Whether it is unlawful for the Secretary of State to exercise his/her power to provide MLA so as to provide evidence to a foreign state that will facilitate the imposition of the death penalty in the state on the individual in respect of whom the evidence is sought; and
  • 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 European Union 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.

It is to be noted the questions are general in nature and not specific to the case of the appellant’s son. On one view, the Supreme Court’s answers to those questions would ideally assist practitioners to determine whether any particular provision of MLA to a jurisdiction that retains the death penalty would be lawful. The extent to which the Supreme Court’s judgment does or does not provide that framework is considered in greater detail below.

Mrs Elgizouli’s appeal was allowed on the basis that the provision of the MLA was unlawful under the Data Protection Act 2018 (‘the 2018 Act’). The various judgments of the Justices can be briefly summarised as follows:

  • Lady Hale summarises the structure of the judgment. She does not give a view on the first question and does not agree or disagree with any of the other judgments with regards to the first ground. She makes clear that the seven Justices were unanimous that the decision was unlawful under the 2018 Act, on the grounds that the Secretary of State did not consider whether the criteria under that Act were met. She then considers whether the transfer of evidence for a potential death penalty case could ever be lawful under the 2018 Act, other than where it was urgently necessary to save life or prevent an imminent crime (see paragraphs 7 to 15). She concludes that it is not necessary to reach that conclusion, but that she would have been prepared to do so. (Lord Carnwath and Lord Hodge both see the force in these comments but express no further view.)
  • Lord Kerr gives an in-depth overview of the factual background to the case and the relevant legal principles. He concludes that the time has come to recognise a common law prohibition of providing MLA in a potential death penalty case, except where it is necessary as a matter of urgency to save lives. Alternatively, he agrees that the provision of MLA in this case fell foul of the 2018 Act, as the Secretary of State did not have regard to his duties as a data controller.
  • Lord Reed agrees with Lord Carnwath’s judgment (see below), that the decision was vitiated by the failure to comply with the 2018 Act, and that the first ground of appeal should be dismissed. In addition to Lord Carnwath’s reasons, he adds that he does not think the development of the law proposed by Lord Kerr would be an incremental step, as he does not find an established principle in the sources cited by Lord Kerr. He observes that the Secretary of State’s decision might have failed to comply with the common law requirement of rationality, but did not express a final view on this, as it had not been fully argued. Lady Black and Lord Lloyd-Jones agree with Lord Reed’s judgment, and do not provide separate judgments of their own.
  • Lord Carnwath finds that the common law has not developed in the way suggested by Lord Kerr, on the basis that the key developments regarding the death penalty have come from Parliament and the European Court of Human Rights (‘ECtHR’), and Parliament has been active in the area of MLA and the transfer of information, without prohibiting MLA in a case such as this. He finds that the provision of the MLA breached the 2018 Act. Section 73 requires a number of conditions to be met where personal data is transferred to a third country, including condition 2, that it must be based either (i) on an adequacy decision; (ii) on there being appropriate safeguards; or (iii) on special circumstances. There was no adequacy decision, the information was transferred without any safeguards, and for special circumstances to apply section 78 requires a specific assessment under the section, which did not take place.
  • Lord Hodge agrees with Lord Reed and Lord Carnwath on the common law point and with all the Justices on the data protection point.

The judgments raise the following questions:

  1. When, if ever, would the transfer of evidence for a death penalty prosecution comply with the 2018 Act?
  2. When, if ever, would the transfer of evidence for a death penalty prosecution be rational?

Data Protection

Reducing this long judgment to its ratio, the conclusion drawn by the Supreme Court is that the provision of MLA in this instance was unlawful because there were no safeguards and no specific assessment under section 78. In a future case where the government is considering whether it should accede to a request from the US for MLA, where a death penalty prosecution is contemplated, it can know with certainty from Elgizouli that if it does wish to comply with the request then – assuming there is no adequacy decision – it will either need to obtain safeguards or carry out an assessment under section 78. Contrary to the High Court’s conclusions at first instance, a procedural defect in this regard is sufficient to make the transfer of data unlawful.

The type of safeguards that might make such a transfer lawful under section 76 must include assurances that the information will not be used to facilitate the use of the death penalty. This is Lord Carnwath’s conclusion (at [220]), echoed by Lady Hale (at [10]). He draws on recital 71 to the EU’s Law Enforcement Directive (Directive (EU) 2016/680), implemented by the 2018 Act, which specifically contemplates that, in relation to appropriate safeguards, “personal data will not be used to request, hand down or execute a death penalty.” Lord Carnwath observes that this is also consistent with the government’s long-standing policy of seeking full death penalty assurances in all cases. The Secretary of State therefore could not consider this condition as being satisfied if there were no such assurances.

Thus Elgizouli tells us that if, as in that case, the government wishes to transfer evidence without death penalty assurances, the only way it can do so under the 2018 Act is where the decision to transfer data is based on “special circumstances”. It is evident from the majority’s judgment that for this condition to apply, the decision-maker must carry out a specific assessment as to whether the transfer of data was “strictly necessary” for one of the purposes in section 76(1), which include, so far as is relevant:

[…]

(c) for the prevention of an immediate and serious threat to the public security of a member state or a third country

(d) in individual cases for any of the law enforcement purposes, or

(e) in individual cases for a legal purpose.

Purpose (c) could well apply where the information being passed on is necessary to prevent an imminent terrorist attack, for example, but might subsequently be used in a death penalty prosecution. (This was also envisaged as an inevitable exception to the common law principle set out in Lord Kerr’s minority judgment.)

In other cases – including that of Mr El Sheikh and Mr Kotey – there will not be an immediate threat, but the MLA request will simply be for evidence for a contemplated prosecution. In such cases, (d) and (e) may be problematic, however. As Lady Hale points out, section 76(2) provides that:

… subsection (1)(d) and (e) do not apply if the controller determines that fundamental rights and freedoms of the data subject override the public interest in the transfer.

The decision-maker will, therefore, need to consider the fundamental rights and freedoms of the potential defendant in the death penalty prosecution. In explicitly obiter comments, Lady Hale gives a strong indication that these fundamental rights and freedoms could never be overridden by the public interest, unless urgently necessary to save a life or prevent an imminent crime. She does not express a final conclusion, as it is not deemed necessary in light of the finding that in this case there was no consideration of special circumstances at all. Other Justices indicate some support for this provisional view, but do not go further given it had not been argued fully. Such caution may be understandable, but if the majority had expressed a conclusive view on that point it would have answered the second certified question more fully.

There is a compelling case for saying that a transfer of evidence without a death penalty assurance, where there is no imminent threat to life, could never comply with the 2018 Act.

As it is, the case law does not yet give an interpretation of section 76 that would make clear whether a transfer of evidence without a death penalty assurance, where there is no imminent threat to life or a State, could ever comply with the 2018 Act. There is a compelling case for saying that it could not. Yet there may be a reasonable fear that the judgment is sufficiently ambiguous that a government may still feel able to provide MLA in similar cases, even though subsequent judicial scrutiny might show the transfer to be unlawful for the reasons suggested by Lady Hale. As long as the Secretary of State concludes that the rights of the subject do not override the public interest in the transfer, then a claim of special circumstances might still be made. As ordinarily MLA is provided without the public knowing, further judicial scrutiny of that conclusion might never occur.

Irrationality

Lord Reed also considers whether the decision may be challenged as being irrational. Implicitly he suggests that it may have been irrational for the Secretary of State to base his decision on (1) the idea that prosecution in the US was necessary to ensure that justice be done, even though the evidence was insufficient to prosecute in the UK and such prosecution might be regarded as an abuse of process; and (2) that possible execution in the US was regarded as preferable to detention in Guantanamo Bay.

Albeit not binding, the implication is that future decisions should not be based on such reasons. Yet Lord Reed made clear that he was not making any finding on the point, so if the government were faced with a similar decision again, his comments do not prevent a future Secretary of State from relying upon the same reasons. The question as to when exactly it would be rational for MLA to be provided is left open. Given that the government’s public position remains that it never provides assistance for death penalty cases (see the comments to the UN General Assembly in April 2016, cited at paragraph 63 of the judgment), would it ever be rational for it to provide such assistance where there was no imminent threat to life? As in Lady Hale’s analysis of section 76(2) of the 2018 Act, in all other circumstances it would arguably be irrational for the Secretary of State to find that the fundamental rights of an individual are overridden by the public interest in the provision of MLA. A more conclusive view on this point would have been particularly instructive, given that it could apply to all forms of MLA, whereas the conclusions relating to data protection relate only to the transfer of personal data.

The Supreme Court’s Jurisdiction

The comments on both irrationality and section 76(2) of the 2018 Act raise an unanswered question: when should the Supreme Court be limited to what is argued fully before it, and when should it endeavour regardless to provide fuller answers to the certified questions? The Court is not limited to determining the certified questions put before it (see Attorney General of Northern Ireland v Gallagher [1963] AC 349). But, in any event, here the questions were sufficiently broad. The concern was more with how those questions were approached in the written and oral arguments.

The first certified question arguably encompasses whether it is rational for MLA to be provided in these circumstances as if it is not, then it would be unlawful. The stated reasons for the Secretary of State’s decision were before the court, as is clear from Lord Reed’s comments, and the appellant did claim the decision was irrational. So the court could well have reached a firmer conclusion on rationality, but did not as this did not form a substantial part of the written or oral argument. Similarly, the second certified question certainly encompasses whether the provision of MLA without an imminent threat to life could ever be permitted under section 76 of the 2018 Act. The apparent difficulty was that this was not the main thrust of the appellant’s arguments. In both cases, the court decided to hold back and pass only provisional comments, rather than – for example – seeking further written or oral submissions from the parties.

In certain cases, might it be appropriate for the court to seek to make a broader statement of principle than is strictly necessarily?

There is no clear principle to follow when faced with those two options. The practice of the court seems, in this case at least, to be that if it can resolve the appeal before it on some basis, it does not need to resolve other or more general questions. It is open to debate whether it may, in certain cases, be appropriate for the court to seek to make a broader statement of principle than is strictly necessarily.

Conclusion

Serious questions arise as to whether, without a death penalty assurance, a government could ever lawfully provide MLA to the US absent an imminent threat to life. The judgment in Elgizouli, however, leaves certain questions sufficiently unanswered to give rise to a tenable argument that the provision of MLA in such circumstances may still be lawful. While those advising the government may take the view that, in light of Lady Hale and Lord Reed’s comments, MLA ought not to be provided, other lawyers may disagree. That disagreement may remain unresolved for some time, given that the provision of MLA is not ordinarily publicised. It may be that the courts could only resolve the position on section 76 of the 2018 Act, or the rationality of these decisions, if there are further leaks to the press. That is not an ideal outcome for legal certainty.

To prohibit more generally the facilitation of the death penalty would have been a wholly consistent extension of the prohibition on extradition to a death penalty jurisdiction without assurances.

There might have been advantages, therefore, in adopting Lord Kerr’s conclusion on the common law. Aside from the extensive reasoning in Lord Kerr’s judgment, it would have brought far greater certainty. There is naturally some hesitation in making too bold a step in declaring a common law principle, yet how bold a step it would have been in this case is open to question. As Lord Kerr says (see paragraph 141(5)), to prohibit more generally the facilitation of the death penalty would have been a wholly consistent extension of the prohibition on extradition to a death penalty jurisdiction without assurances. Although it is founded in ECtHR jurisprudence, that principle should arguably be reflected in the development of the common law (see for example, Kennedy v Information Comr (Secretary of State for Justice intervening) [2014] UKSC 20 at [46]).

Although the majority, when declining to decide this case on the basis of a common law principle, had regard to Parliament’s involvement in this field (see Lord Carnwath at paragraph 205), the related legislation does not directly address this question. The overall result is that the limits of the prerogative are still relatively undefined. The majority took Parliament’s silence on the point as tacit acquiescence. On an issue such as this concerning fundamental rights, including the right to life, it would perhaps have been preferable if the court had established more certainty by erring on the side of protecting those rights. After all, Parliament will always have the last word, and could override such a common law rule found by the courts. As things stand, the ambiguity might never be resolved.