Elgizouli v Secretary of State for the Home Department

Facts

The claimant was the mother of a British national, Shafee Elsheikh, who was alleged to be a member of a group that had killed hostages in Syria and who was held by Kurdish forces. The United States requested mutual legal assistance from the United Kingdom for a prosecution against him in which he faced the death penalty. The Home Secretary decided to provide the material without seeking assurances that the death penalty would not be sought or carried out, departing from the long-standing policy of the United Kingdom.

History

The claimant sought judicial review of the decision. The Divisional Court dismissed the claim, and she appealed to the Supreme Court.

Issue

Whether the Home Secretary acted unlawfully in deciding to provide evidence to the United States without death penalty assurances, having regard to the Data Protection Act 2018 and to the common law.

Held

Appeal allowed. The decision to share the material without assurances was unlawful because it was contrary to the data protection regime in the Data Protection Act 2018 governing transfers of personal data to a third country.

Ratio

• The transfer of personal data to the authorities of a third country for use in a prosecution that might lead to the death penalty, without assurances, did not comply with the requirements of Part 3 of the Data Protection Act 2018, so the decision to provide the material was unlawful. The justices gave differing reasons on the wider common law question, so there is no single ratio on that issue.

Key reasoning

• The transfer of personal data for law enforcement purposes to a third country is regulated by the Data Protection Act 2018, which requires conditions to be met, and the Home Secretary had not shown compliance in a case where the data might be used to seek capital punishment.
• The long-standing policy of the United Kingdom has been to seek assurances against the death penalty before cooperating in such cases, and the Home Secretary gave no adequate justification for departing from it.
• Some members of the court considered that the common law, with its strong opposition to capital punishment, independently prevented the Home Secretary from knowingly assisting in a prosecution which might lead to an execution, though that point was not necessary for the result.

Obiter

• Some justices considered that the common law may impose an independent limit on providing assistance that facilitates the death penalty, a point not decided as part of the reasons for the result.

Where it fits in the module

The topic on common law fundamental rights concerns how the courts protect rights through the principle of legality and other common law doctrines, as well as through the Human Rights Act 1998. Elgizouli is relevant because the court addressed the question whether the common law forbids cooperation in executions, a right which has no Convention basis in the same context. It poses the question whether common law rights can restrain the executive in the same way as statutory rights.

Criticisms

• By deciding the case on the data protection regime, the majority avoided the question of a common law right against complicity in the death penalty, leaving this important constitutional issue uncertain.
• The decision shows that fundamental rights protection may depend on the accident of a statute applying to the facts, not on a principle that binds the executive generally.
• Resting the result on a data-sharing statute leaves the executive free to assist capital prosecutions by routes outside that statute, so the protection against complicity in executions is incomplete.