Elgizouli v Secretary of State for theHome Department

JurisdictionEngland & Wales
JudgeLord Hodge,Lord Kerr,Lord Lloyd-Jones,Lady Black,Lady Hale,Lord Carnwath,Lord Reed
Judgment Date25 March 2020
Neutral Citation[2020] UKSC 10
Date25 March 2020
CourtSupreme Court
Between:
Elgizouli
(Appellant)
and
Secretary of State for the Home Department
(Respondent)

[2020] UKSC 10

before

Lady Hale

Lord Reed

Lord Kerr

Lord Carnwath

Lord Hodge

Lady Black

Lord Lloyd-Jones

Supreme Court

Hilary Term

On appeal from: [2019] EWHC 60 (Admin)

Appellant

Edward Fitzgerald QC

Richard Hermer QC

Joe Middleton

Edward Craven

Julianne Morrison

(Instructed by Birnberg Peirce Ltd)

Respondent

Sir James Eadie QC

Hugo Keith QC

Victoria Wakefield QC

Clair Dobbin

Matthew Hill

(Instructed by The Government Legal Department)

Intervener (1)

Gerry Facenna QC

Conor McCarthy

(Instructed by Information Commissioner's Office (Wilmslow))

Intervener (2)

Tim Moloney QC

Jude Bunting

(Instructed by WilmerHale)

Intervener (3)

Tim Owen QC

Amanda Clift-Matthews

(Instructed by The Death Penalty Project)

Intervener (4)

Mark Summers QC

Jacob Bindman

(Instructed by Leigh Day)

Interveners:

(1) The Information Commissioner

(2) Professor Heyns (written submissions only)

(3) The Death Penalty Project (written submissions only)

(4) Reprieve

Heard on 30 and 31 July 2019

Lady Hale
1

This is a more than usually anxious case. It concerns the death penalty. The United Kingdom is party to the Thirteenth Protocol to the European Convention on Human Rights (2004). In its preamble, the contracting states state that they are “convinced that everyone's right to life is a basic value in a democratic society and that the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings”. The UK Parliament had already demonstrated this conviction by finally abolishing the death penalty for murder in 1969 and for the few remaining offences to which it applied in 1998. As Lord Dyson MR put it, in R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2013] EWCA Civ 581; [2013] 1 WLR 2938, “the death penalty is (in my view) rightly regarded by the Government as immoral and unacceptable” (para 61).

2

But it is not enough to think the death penalty immoral and unacceptable. The issue in this case is the legality of the Government's decision to provide mutual legal assistance to the United States — in the shape of the product of police enquiries — to facilitate the prosecution of the claimant's son in the United States for very serious offences, some carrying the death penalty, without seeking assurances that the death penalty would not be imposed or, if imposed, would not be carried out. What is immoral and unacceptable is not necessarily unlawful. As judges, our role is to uphold the law. It is understandable, therefore, that this judgment has taken a long time to emerge, as members of the court hold different views about the current state of the law. Because of that, I have prepared this short guide to the judgments which follow.

3

The decision is attacked on two grounds (the questions certified by the Divisional Court are set out at para 19 of Lord Kerr's judgment): (i) it is unlawful at common law for the Government to facilitate the carrying out of the death penalty in a foreign state, not only by deporting or removing a person from the United Kingdom to be tried in that state, but also by providing information which may be used by that state in the trial of a person who is not currently in the United Kingdom; (ii) the decision to provide such information, insofar as it consists of personal data within the meaning of the Data Protection Act 2018 (“the 2018 Act”), was unlawful under Part 3 of that Act.

4

The leading judgment in this case is given by Lord Kerr. It contains a comprehensive account of the facts, the issues, the competing arguments and the relevant national and international materials. It is essential reading. The crimes of which the claimant's son is accused are “the worst of the worst”. Nevertheless, having surveyed the development of the law in great detail, Lord Kerr concludes that the decision was unlawful both at common law and under the 2018 Act. The majority of the Justices are unable to share his view of the common law. The reasons for considering that the common law has not (at least yet) developed so far are explained by Lord Reed and Lord Carnwath.

5

Lord Reed also explains that the decision might be open to challenge on the more conventional ground that it lacked rationality. He refers to two aspects of the Secretary of State's reasoning: first, that prosecution in a foreign state was necessary to ensure that justice is done, even though there is insufficient evidence to prosecute him in the UK for an offence under UK law and UK law might regard his prosecution as an abuse of process; and second that possible execution in the US was regarded as preferable to detention in Guantanamo Bay. Where the right to life is at stake, even decisions taken under prerogative powers may be subject to more anxious scrutiny than they otherwise would be, given the value which UK law attaches to the sanctity of all human life. Lord Reed does not express a view on either point. It is not open to the court to decide the case on this basis, as the claimant did not argue that the decision was irrational for these reasons and the Secretary of State has not had the opportunity of responding to it in this appeal. The issue of whether the allegations could be tried in the UK has been the subject of separate judicial review proceedings.

6

The court is, however, unanimous in holding that the decision was unlawful under the 2018 Act. We have had the benefit, not only of very full argument on the matter from Richard Hermer QC on behalf of the claimant, but also of a very helpful intervention by Gerry Facenna QC on behalf of the Information Commissioner. The 2018 Act is discussed by Lord Kerr at paras 152 to 159 of his judgment and by Lord Carnwath at paras 207 to 228 of his judgment. The short point is that, insofar as the information provided, or to be provided, to the US authorities consisted of personal data (which much of it did) the processing of such data by the Secretary of State as data controller required a conscious, contemporaneous consideration of whether the criteria for such processing were met. “Substantial compliance” with those criteria, as found by the Divisional Court, is not enough. It is 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.

7

There is, moreover, a further point under the 2018 Act (referred to by Lord Carnwath at para 220 of his judgment) which raises the question of whether such processing in these circumstances could ever be lawful. This question was explored in the argument before us but in the light of our decision on the main point it is unnecessary for us to express a concluded view. Nevertheless, it is worth some fuller explanation because it would undoubtedly merit further consideration if a similar issue were to arise in future.

8

Part 3 of the 2018 Act makes provision about the processing of personal data by competent authorities for “the law enforcement purposes” and implements the European Union's Law Enforcement Directive (Directive (EU) 2016/680) (“the LED”) (section 1(4)). That Directive is therefore a legitimate aid to the interpretation of the 2018 Act. The law enforcement purposes listed in section 31 include the investigation, detection and prosecution of criminal offences. Chapter 5 of Part 3 deals with the transfer of personal data to third countries or international organisations. Sections 73 to 76 set out the general conditions which apply to such transfers (section 72(1)(a)). The data controller cannot transfer personal data unless three conditions are met (section 73(1)(a)). Condition 3 need not concern us, because Condition 1 was not met and it is arguable that Condition 2 could never be met.

9

Condition 1 is that the transfer is necessary for any of the law enforcement purposes (section 73(2)). In Guriev v Community Safety Development (UK) Ltd [2016] EWHC 643 (QB), Warby J held (in the context of restricting the subject's right of access to his personal data) that: “The test of necessity is a strict one, requiring any interference with the subject's rights to be proportionate to the gravity of the threat to the public interest” (para 45). The parties agree that the same test applies in this context. This obviously requires the data controller to address his mind to the proportionality of the transfer.

10

Condition 2 is that the transfer (a) is based on an adequacy decision of (at that time) the European Commission (see section 74); (b) if not based on an adequacy decision, is based on there being appropriate safeguards; transfers must be documented (see section 75); or (c) if not based on an adequacy decision or appropriate safeguards, is based on special circumstances (see section 76) (section 73(3)). This transfer was not based on an adequacy decision or on there being appropriate safeguards, because there were none. In this connection, it is instructive that recital (71) to the LED contemplates among those safeguards that “personal data will not be used to request, hand down or execute a death penalty or any form of cruel and inhuman treatment”.

11

In the absence of an adequacy decision or appropriate safeguards, Condition 2 could only be met if there were “special circumstances”. Once again, it is instructive that recital (72) to the LED regards these as derogations from its requirements and as such they should be interpreted restrictively and limited to data which are “strictly necessary”.

12

A transfer to a third country or international organisation is based on special circumstances if it is necessary for any of the five purposes listed in section 76(1). Only two could be relevant here: “(d) in individual cases for any of the law enforcement purposes; or (e) in...

To continue reading

Request your trial
6 cases
6 firm's commentaries
  • COVID-19 Update: Coronavirus Bill Radically Overhauls The Use Of Video / Telephone Facilities In UK Criminal Proceedings
    • United Kingdom
    • Mondaq UK
    • 21 April 2020
    .... Fowler v. Commissioners for Her Majesty's Revenue and Customs UKSC 2018/0226. Elgizouli v. Secretary of State for the Home Department [2020] UKSC 10. Section 53(1) of Criminal Justice Act 2003 states that "The court may sit for the purposes of the whole or any part of the proceedings at a......
  • Overseas Production Orders – Where are we now?
    • United Kingdom
    • JD Supra United Kingdom
    • 25 November 2020
    ...of the United States of America on Access to Electronic Data for the Purpose of Countering Serious Crime, 3 October 2019 here. 18) [2020] UKSC 10, para 220. 19) [2020] UKSC 10, para 220. 20) CrPR, Part 47.67(1)(a). 21) Section 8 of the COPO Act and CrPR, Part 47.68(3)(l). 22) R on the Appli......
  • UK Home Secretary’s Decision to Transfer Data to U.S. found Unlawful under UK Data Protection Act
    • United Kingdom
    • JD Supra United Kingdom
    • 13 April 2020
    ...Nauth] The UK Supreme Court held, in the case of Elgizouli v Secretary of State for the Home Department [2020] UKSC 10, that the Home Secretary breached the Data Protection Act 2018 (DPA), the UK data protection legislation which incorporates the requirements of the Law Enforcement Directiv......
  • UK Held to Have Breached Data Protection Laws Over Alleged Islamic State Members
    • United Kingdom
    • LexBlog United Kingdom
    • 7 May 2020
    ...interesting data protection case, Elgizouli (Appellant) v Secretary of State for the Home Department (Respondent) [2020] UKSC 10, the UK Supreme Court has held that the UK Government breached data protection laws in passing information to US authorities following a mutual legal assistance (......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT