Supreme Court rules that no death penalty assurance was lawful at common law, but in breach of the Data Protection Act 2018

26/03/20

The Supreme Court has handed down judgment in El Gizouli v Home Secretary [2020] UKSC 10. This case concerned the provision of evidence to the USA. The evidence related to the so-called “Beatles” terrorists and was provided for the purpose of a federal criminal investigation or prosecution. When agreeing to provide that evidence, the Home Secretary did not require an assurance that the death penalty would not be sought.

The Supreme Court held, by a majority, that the common law does not include a prohibition restraining the Home Secretary from transferring such evidence with no death penalty assurance. Lord Carnwath, who gave the leading judgment on this set of issues, held that there was “as yet no established principle (under the common law, the European Convention or any other recognised system of law), which prohibits the sharing of information relevant to a criminal prosecution in a non-abolitionist country merely because it carries a risk of leading to the death penalty in that country” (§191). The appeal was accordingly dismissed on that ground.

In contrast, the Supreme Court unanimously held that the transfer was in breach of the Data Protection Act 2018. The principal reason was that the Secretary of State, when making the decision, did not address his mind to the 2018 Act, and that substantive compliance was not enough (per Lady Hale, §6). The appeal was accordingly allowed on that ground.

The judgment is here.