Elgizouli (Appellant) v Secretary of State for the Home Department (Respondent)

Hilary Term

[2020] UKSC 10

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

Appellant

Respondent

Edward Fitzgerald QC	Sir James Eadie QC
Richard Hermer QC	Hugo Keith QC
Joe Middleton Edward Craven	Victoria Wakefield QC

Clair Dobbin

Julianne Morrison	Matthew Hill
(Instructed by Birnberg	(Instructed by The
Peirce Ltd)	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:

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 individual cases for a legal purpose”. Once again, the test of necessity is a strict one, requiring the controller to address his mind to the proportionality of the transfer. Crucially, however, section 76(2) provides: “But 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.” Once again, this obviously requires the controller to address his mind to the fundamental rights and freedoms of the data subject and to whether they override the public interest in the transfer.

13. Recital (1) to the LED states that the protection of natural persons in relation to the processing of their personal data is a fundamental right. Recital (17) makes it clear that the protection it affords should apply to natural persons “whatever their nationality or place of residence”. Crucially in this connection, recital (46) states that any restriction on the rights of data subjects must comply with the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights “and in particular respect the essence of those rights”. Clearly, therefore, the fundamental rights and freedoms of the data subject referred to in section 76(2) must include the rights protected by the European Convention. These are to apply even where the data are to be transferred to a third country outside the European Union and whatever the nationality or place of residence of the data subject.

14. The most fundamental of the rights protected by the European Convention is the right to life. This is an absolute right, not qualified by the possibility of restrictions or interferences which are “necessary in a democratic society”. Article 2.1 prohibits the state from taking anyone’s life intentionally: the former exception for the death penalty when provided by law has gone following the Sixth and Thirteenth Protocols to the European Convention. There are three limited exceptions in article 2.2, none of which apply to the infliction of the death penalty as such. However, article 2.2(a) does allow for a death which results from the infliction of force which is no more than absolutely necessary “in defence of any person from unlawful violence”. And recital (73) to the LED acknowledges that there may be an urgent need to transfer personal data “to save the life of a person who is in danger of becoming a victim of a criminal offence or in the interest of preventing an imminent perpetration of a crime, including terrorism”.

15. The Government did not engage directly with the argument. Collectively, these provisions point towards an interpretation of section 76(2) which would not allow the transfer of personal data to facilitate a prosecution which could result in the death penalty; but which would allow such a transfer if it was urgently necessary to save life or prevent an imminent crime. Had it been necessary, I would have been prepared so to hold.

LORD KERR:

Introduction

16. Shafee El Sheikh is the son of the appellant, Maha Elgizouli. Mr El Sheikh and another, Alexanda Kotey, are suspected of involvement in heinous offences committed in Syria. The enormity of those offences was rightly accepted by Mr Edward Fitzgerald QC who appeared on behalf of Mrs Elgizouli on this appeal. Indeed, Mrs Elgizouli also admits that these crimes are of the most awful nature. She accepts without question that her son should face trial for his alleged involvement in those dreadful offences. But she considers that that trial should take place in this country rather than in the United States of America, where, at the time of the hearing of this appeal, it was contemplated that Mr El Sheikh and Mr Kotey would be tried.

17. So that there be no doubt as to the monstrous nature of the crimes of which it is claimed Mr El Sheikh and Mr Kotey are guilty, one may refer to the summary of those offences in the witness statement of Mr Graeme Biggar, the Director of National Security in the Home Office. His account of those crimes has not been disputed by any of the parties to this appeal. Mr El Sheikh and Mr Kotey are believed to be part of a group which was responsible for extremely grave offences committed against several individuals. These include the beheadings of 27 men. The US citizens James Foley, Steven Sotloff and Peter Kassig and the British citizens David Haines and Alan Henning are believed to be amongst those killed. These killings came to global attention by all, except one, being filmed and posted on the internet. It is difficult to imagine more horrific murders than those which Mr El Sheikh and Mr Kotey are alleged to have carried out.

18. It is entirely understandable, therefore, that Mr Biggar should aver that the deaths suffered by those men who were brutally killed have brought untold anguish to their families. It is equally understandable that the families affected wish to see those responsible brought to justice. That aim, Mr Biggar says, is strongly supported by HM Government. It is an aim which must surely be shared by all right-thinking members of our society.

The proceedings so far

19. This appeal raises the issue whether it was lawful for the Secretary of State for the Home Department to provide evidence to the United States that could facilitate the imposition of the death penalty. The appellant brought a judicial review of the provision of mutual legal assistance (MLA) relating to her son after the Daily Telegraph published a letter from the Secretary of State to the US Attorney General revealing that such assistance had been provided. The Divisional Court dismissed her claim on the merits, but certified two questions of law of public importance:

(i) Whether it is unlawful for the Secretary of State to exercise his power to provide MLA so as to provide evidence to a foreign state that will facilitate the imposition of the death penalty in that state on the individual in respect of whom the evidence is sought; and

(ii) 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.

Jihad in Syria and Mr El Sheikh’s suspected involvement

20. Thousands of extremists wishing to engage in violent jihad have travelled to Syria from around the world. A significant number of these have joined the Islamic State of Iraq and the Levant (Daesh). The nature of the conflict in Syria and the presence of these terrorists have made that country a significant source of threat to United Kingdom and United States’ interests. The activities of Daesh in Syria have put civilian life there at considerable risk. They also constitute a wider risk to the stability of the region. Adherents to the terrorist cause of Daesh have been involved in the most abhorrent of crimes, including murder, rape, kidnap and the enslavement of people.

21. A number of persons from the United Kingdom have joined Daesh and other terrorist organisations in Syria. They present particular challenges for this country. They pose risk to life by (among other things) radicalising, inspiring, enabling or directing potential terrorists in the UK. The government has responded to this phenomenon in three ways. In the first place, attempts are made to prevent UK citizens from leaving this country to fight abroad. Where those attempts are not successful, the government seeks to stop those who have engaged in fighting abroad from returning to the UK, “where it is appropriate and lawful to do so” - per Mr Biggar’s witness statement. Where, despite those efforts, terrorists manage to return, a range of measures is deployed designed to minimise the risk that they might present to the public.

22. The effort to defeat Daesh has resulted in many foreigners who are suspected of having been terrorist fighters being detained by, among others, the Syrian Democratic Forces. Mr El Sheikh and Mr Kotey were captured by these forces in northern Syria in January 2018. It is believed that both were members of a notorious group nicknamed “the Beatles” on account of their British accents. It is also suspected that this group was responsible for many unspeakable crimes against UK and US citizens. Since this appeal was heard, the court has been informed that Mr El Sheikh and Mr Kotey have been taken into US custody. No information has been given as to their current whereabouts.

23. Although he had been a British citizen, on 22 December 2014 Mr El Sheikh was deprived of his citizenship under section 40(2) of the British Nationality Act 1981. This provides that the Secretary of State may deprive a person of a citizenship status if satisfied that the deprivation is conducive to the public good. It may not be ordered, however, if the subject is rendered stateless. It was determined that Mr El Sheikh was entitled to Sudanese citizenship. The decision to deprive him of his British citizenship is not under challenge in these proceedings.

The request for mutual legal assistance

24. A treaty between the governments of the United Kingdom and the United States on mutual legal assistance in criminal matters was made in 1994. It came into force in 1996. Under its terms, the governments agreed to provide mutual assistance in the form, inter alios, of documents, records and evidence (article 1(2)(b)) for the purposes of criminal and other proceedings. Proceedings are defined in article 19 of the treaty as including proceedings related to criminal matters “and … any measure or step taken in connection with the investigation or prosecution of criminal offences …”.

25. In June 2015 the United States made a request to the United Kingdom under the treaty for MLA in respect of a criminal investigation that it was conducting into the activities of terrorists who had a connection with the UK, who were operating in Syria, and who were suspected of involvement in the murders of United States’ citizens there. The US request was for materials which had been gathered by UK police as part of a UK investigation into this group. Two of the offences which the US was investigating (homicide and hostage taking resulting in death) carried the death penalty.

26. The Rt Hon Theresa May MP, who was then the Home Secretary, was prepared to accede to the mutual legal assistance request. But, as was customary, she sought a number of assurances from the US. These were outlined in a letter sent on her behalf to the US Department of Justice on 29 October 2015. It stated:

“As you will be aware, the UK will not provide formal mutual legal assistance in cases where the death penalty is a likely or possible punishment without a written assurance from the Requesting State that they would not seek to impose or, if imposed, carry out such penalty. As two of the offences for which the suspects are sought (homicide and hostage taking) carry the death penalty, we require, as a pre-condition to the provision of the assistance requested by you, that you provide a written undertaking that the death penalty will not be sought or imposed or, if imposed, will not be carried out against anyone found guilty of any criminal offence arising from this investigation and/or UK assistance provided.”

This request was precisely in line with the long-standing policy of steadfast opposition by successive UK governments to the imposition of the death penalty in any circumstances whatever. The unequivocal terms of the letter are significant. It is firmly stated that the UK will not provide MLA where the death penalty is a possible punishment without the normal death penalty assurances. The letter makes it plain that a written undertaking to that effect is required as a pre-condition to the supply of the information.

27. The imperative tone of the letter reflects the circumstance that not only has the death penalty been abolished in this country (capital punishment was suspended for murder in 1965 and finally abolished in 1969 (1973 in Northern Ireland)), governments since then have refused to countenance its imposition on UK citizens. Moreover, in 2004 the Thirteenth Protocol to the European Convention on Human Rights (ECHR) became binding on the United Kingdom, prohibiting the restoration of the death penalty for as long as the UK is a party to the Convention. The abhorrence with which our law regards the imposition of this most dire penalty is also reflected in the jurisprudence of the Judicial Committee of the Privy Council which shall be referred to below.

28. The US response to the Home Secretary’s letter was given in a letter from the Department of Justice of 21 March 2016 which said:

“With regard to potential application of the death penalty to any person found guilty of an offense arising from this investigation, we can respond as follows: While no persons have yet been charged in connection with this conduct, persons charged with offenses arising from such conduct could be subject to the federal death penalty. The United States provides the assurance that it will introduce no evidence obtained in response to this request in a proceeding against any person for an offense that is subject to the death penalty. In the event the evidence were to be so introduced, the United States would take a decision not to seek the death penalty, a decision which in the federal system absolutely precludes the death penalty from being imposed.”

29. While, therefore, the evidence actually supplied by the UK would not be directly used in order to seek the death penalty, on the basis of this letter, that penalty could have been sought by recourse to other material which might have been generated as a result of the information which the authorities in this country had provided. This point was made in a letter from the Home Office dated 10 August 2017:

“The contents of your letter of 21 March 2016 have been carefully considered. However, it is our view that the assurance provided in respect of the death penalty falls short of that which was requested … In light of this [we invite] you to reconsider your response to our request for assurances as provided by article 3(2) and article 7(3)(a) of the UK-US Mutual Legal Assistance Treaty.

…

As stated in our earlier letter, the UK will not provide mutual legal assistance in cases where the death penalty is a likely or possible punishment without a written assurance that the Requesting State would not seek to impose or, if imposed, would not carry out such a penalty. As offences for which the suspects are sought carry the death penalty, we require, as a pre-condition to the provision of the requested assistance, that you provide a written undertaking that the death penalty will not be sought or imposed or, if imposed will not be carried out against anyone found guilty of any criminal offence arising from this investigation and/or UK assistance provided.

In any event, the assurance proposed by you in March 2016 would, in our view, allow UK assistance to be used for the purposes of another investigation to obtain other evidence which would not be caught by the assurance and which could lead to the death penalty being imposed and carried out.

… this case but regrets that we will only be in a position to accede to your request if you are able to give the undertakings as requested above.”

No official response to this letter was received. It was informally indicated that the assurances sought would not be given.

30. The terms of the correspondence from the British government are important and significant. They reflect the deep-seated nature of this country’s opposition to the death penalty. Indeed, it is noteworthy that some of the families of the victims of the alleged depredations of Mr El Sheikh and Mr Kotey have publicly stated that they do not wish to have that penalty imposed upon them. These considerations, while in no way determinative, are indications as to whether our common law should now be recognised as having developed to the point where there is a right enshrined in the law of this country that our government will not act to facilitate in any way the possibility of the imposition of that most extreme punishment.

31. Mr El Sheikh’s detention in January 2018 marked what Mr Biggar described as “a profound shift in the importance of the request for assistance”. As he explained, it brought immediate political reality and urgency to the question of where he could and should be brought to justice. This prompted greater focus on the request which the British authorities had made for assurances and the reaction of the US Department of Justice to that request. Importantly also, there had been a change in the administration in America since the original request for assurances had been made. Mr Biggar explained the significance of this in his witness statement:

“It was the strong (and publicly stated) view of senior members of the new US administration that those states from which [foreign terrorist fighters] had originally come ought to try those individuals. The US position was that other states should not assume that it would take up responsibility for non-US terrorists apprehended in Syria or Iraq. In the aftermath of the capture of El Sheikh in January 2018, set against the wider issues of responsibility for [foreign terrorist fighters] in detention in Syria, US representatives strongly reiterated this message to the UK. The new US administration also had different views on the US military detention facility at Guantanamo Bay. President Trump had been elected on, among other things, a commitment to reverse his predecessor’s decision to close Guantanamo …”

32. It was made clear that the strong preference of the US government was that the UK should “assume responsibility” for Mr El Sheikh and that he should be prosecuted in this country. The Crown Prosecution Service had determined, however, in January 2016 that the evidence available was not sufficient to warrant charging Mr El Sheikh. That position was reviewed in February 2018 and it was again concluded that there was insufficient evidence to charge him. The authorities in the US and the UK decided, however, that there should be a joint review of the prospects of a successful prosecution in either jurisdiction. This took place in March 2018. Police officers from the Counter Terrorism Command and specialist prosecutors from the CPS visited the US at the end of March 2018 and were given access to the evidence which the US investigators had gathered. FBI agents had already visited the UK and had seen and considered the evidence gathered by UK investigators. At the time of the hearing of the appeal it was not considered feasible to prosecute Mr El Sheikh in this jurisdiction. That decision by the CPS was the subject of a separate challenge which need not be referred to further here. The court has learned, however, that, in light of Mr El Sheikh’s being in the custody of US authorities, the feasibility of his being tried in this country may be revisited.

33. Any prosecution of Mr El Sheikh in the US depends critically on the evidence which has been obtained by the British authorities. According to Mr Biggar, following the meeting between US and UK officials in March 2018, the clear view of the UK officials was that a prosecution of Mr El Sheikh in the US federal court system, which included the UK evidence, represented the only realistic prospect of securing justice for the victims and their relatives. Despite this, again according to Mr Biggar, senior members of the US administration continued to state their opposition to foreign terrorist fighters, including Mr El Sheikh, being tried in the US. This reflected the ongoing concern of the US that it should not fall to that country to bring within its criminal justice system those such as Mr El Sheikh for whom it felt other states bore responsibility. In particular, the US considered that the UK ought to set an example to the wider international community by accepting responsibility for bringing foreign terrorist fighters such as Mr El Sheikh and Mr Kotey to trial.

34. Another factor that was present to the mind of the British authorities was the prospect that the US might transfer Mr El Sheikh to Guantanamo Bay. The assessment made in this country was that the US was more likely to do that than to try him in the federal criminal system. In March 2018, the then Home Secretary visited Washington and spoke to US Attorney General Sessions. As well as expressing his clear view that all foreign terrorist fighters should be prosecuted in their home countries, the Attorney General referred to them as prisoners of war and suggested that transfer to Guantanamo Bay was therefore appropriate (its purpose, in the Attorney General’s view, being the detention of prisoners of war).

35. The UK has consistently opposed the regime in Guantanamo Bay. In this case, an additional consideration, according to Mr Biggar, was that the families of those kidnapped and killed have a strong desire to ensure that those suspected of involvement should be tried before a civilian court. The UK, he has said, was conscious that a number of families of those killed by terrorist acts in Syria opposed the transfer of those suspected of involvement in those killings to Guantanamo Bay, because they felt that this would end any prospect of securing justice for the murder of their loved ones.

36. A third consideration was the apprehension that Mr El Sheikh might be

released from custody in Syria. This was not believed to be likely, but it nevertheless
played some part in the government’s deliberations.

37. It seems clear, however, that the factor of overwhelming importance was what Mr Biggar described in his witness statement as “the strong message from the US administration, relayed directly by US officials as well as through the UK Embassy, that it was strongly opposed to the UK seeking death penalty assurances, in the event that the UK, itself, decided that it could or would not prosecute; and that, if the UK was pressing the US to prosecute because a UK prosecution was not viable.” Mr Biggar has averred that in early March 2018 the UK’s “lobbying” on the death penalty had been described as “an irritant” by a very senior US official.

38. This statement is both enlightening and concerning. It indicates how the UK authorities were coming under (and might become susceptible to) political pressure from the US. For reasons discussed below that pressure does not appear to have taken into account, much less reflected, either the UK’s longstanding policy in this area nor the joint experience of the UK and the US in the request for and the furnishing of such assurances. The statement also raises questions as to whether pragmatic considerations, at the expense of a principled approach, might begin to influence the UK’s reaction to the demand that it should cease its “lobbying” in relation to the death penalty assurances.

39. On 16 April 2018, the Office for Security and Counter Terrorism in the Home Office and the UK Central Authority (UKCA) each provided submissions to the then Home Secretary, the Rt Hon Amber Rudd MP, and the Security Minister, the Rt Hon Ben Wallace MP. UKCA recommended that the Home Secretary should maintain her predecessor’s decision to accede to the request dated 19 June 2015, but only on the basis that a full death penalty assurance would be provided. It also suggested that she should endorse the UKCA decision to reject the current “direct use” death penalty assurance offered by the US. (It should be noted that this submission was made on the premise that the earlier “direct use” assurance was still available, although UK officials’ understanding was that later contact with the Department of Justice had cast some doubt on the continued availability of this assurance.)

40. The Security Minister responded to this advice on 17 April 2018 saying that he agreed with the first recommendation but disagreed with the second. He indicated that the views of the Foreign Secretary should be sought on whether the assurance, then believed still to be on offer, should be accepted. The Home Secretary did not consider this submission before she resigned on 29 April.

41. Mr Wallace had talks with Department of Justice officials on 20 April 2018. A theme of those exchanges was that senior officials in the US administration did not consider that Mr El Sheikh and Mr Kotey should be tried in the US federal courts. Mr Wallace was also told that if the US was required to deal with them, their transfer to Guantanamo Bay was more likely if the UK imposed restrictions on the release of information to the US authorities.

42. The picture which emerges from these exchanges is one of increasing and applied pressure by the US on the UK to minimise any restrictions on the use of the released evidence. That pressure was two-pronged. First that a trial in the federal courts of America might be refused on the basis that the UK should undertake their trial. Secondly, that if Mr El Sheikh and Mr Kotey were transferred to the US, the chances of their being incarcerated in Guantanamo Bay increased, if assurances from the US authorities about the use of the evidence were sought.

43. The US authorities must have known that these indications would put pressure on the UK to dilute or eliminate the request for assurances. Indeed, it seems highly likely that this was their purpose. And, as it proved, before long the pressures began to have effect. Mr Biggar’s assessment of the exchanges between the Americans and the British was “that if the UK wanted to obtain support for a US prosecution, it would be critical that evidence provided by the UK came with the [fewest number] of restrictions possible”.

44. The US authorities’ position was put bluntly by Attorney General Sessions when he gave evidence at a Senate panel hearing on 25 April 2018. He expressed disappointment that “the British … are not willing to try the cases but tend to tell us how to try them … and they have certain evidence that we need …”. He also indicated that he was supportive of sending Mr El Sheikh and Mr Kotey to Guantanamo Bay.

45. Inasmuch as this statement might be taken to indicate that the British authorities considered that Mr El Sheikh could have been tried in the UK but preferred to transfer that responsibility to the US, it is plainly wrong. As pointed out in para 32 above, the CPS had decided that it was not feasible to prosecute Mr El Sheikh in this country and that decision had been confirmed after a review in February 2018.

46. The Rt Hon Sajid Javid MP became Home Secretary on 30 April 2018. He

spoke to Attorney General Sessions on 4 May 2018. Mr Biggar gives the following
account of the conversation in para 39 of his statement:

“This was their first conversation and it was regarded as significant that this case was one of the first topics that the US Attorney General raised with the Home Secretary. The US Attorney General indicated that he was concerned that the UK had said that it was not interested in prosecuting El Sheikh; that the death penalty should not be an issue for the UK and that he did not want the UK to tie his hands in relation to the use of the material. The US Attorney General also referred favourably to Guantanamo Bay. The Home Secretary indicated that a formal decision would be taken shortly.”

47. There is no reference in Mr Biggar’s account of that conversation to the Attorney General having been told of the longstanding practice of the British authorities to seek assurances in relation to the death penalty. It does not appear that Mr Sessions was told that a decision not to follow that practice would represent a very significant departure from the UK’s policy over very many years. Nor was he told of the Death Penalty Assistance Policy which provides that, in general, where there is a significant risk of the death penalty being imposed, before it is agreed that assistance be provided, assurances should be sought that that penalty will not be imposed. (It is, of course true that the policy does contemplate that in certain exceptional circumstances, the request for assurances may be foregone but the pre- eminence of the general rule - it appears at para 1 of the policy - is testament to how deeply embedded is the practice of seeking assurances.)

48. In May 2018 the UK ambassador in Washington was asked for his opinion as to the likely reaction of the US authorities if the request for assurances was persisted in. He replied that Department of Justice career officials would not be surprised; indeed, it is what they would expect. But he advised that this did not apply to senior political figures in the administration. His advice continued:

“Their reaction is likely to be something close to outrage. They already feel that we are dumping on them a problem for which we should take responsibility. They have been signalling to us for weeks now that we are in no position to attach any conditions to this. At best they will think we have tin ears. At worst, they will wind the President up to complain to the PM and, potentially, to hold a grudge. We might argue that the UK position on this is well known and that we were simply behaving in a way consistent with our long-term policy. There might be some understanding of this. But I have to warn that there might also be some damage to the bilateral relationship.” (Emphasis added)

49. In the italicised sentences above, it had been suggested that it could be pointed out that the UK position was not only familiar but that it reflected this country’s longstanding policy. There is nothing in Mr Biggar’s statement or in the evidence presented to the Divisional Court to indicate that this suggestion was taken up. The ambassador considered that seeking death penalty assurances might prompt the US not to pursue a prosecution. Some officials had suggested as much. And it would “point the way towards transfer to Guantanamo”.

50. If the well-established practice of requiring death penalty assurances in all but exceptional cases was not drawn to the attention of the senior political figures in the administration, this is surely surprising. If their anticipated reaction was one of outrage, is it not to be expected that information about this practice would - or, at least, should - have been mitigated by a patient and well marshalled account of how this practice had operated in the past? Attorney General Sessions, in his presentation to the Senate panel hearing in April 2018, had portrayed the UK stance as one of unwillingness to try Mr El Sheikh, while seeking to dictate how he should be tried in the US. That is a portrayal which it should have been easy to correct. This was not a case of the UK being “unwilling” to have Mr El Sheikh tried in this jurisdiction. Rather, it was considered by the CPS, an institution entirely independent of government, that such a trial was not feasible. Equally, the UK did not seek to dictate how Mr El Sheikh should be tried in the US. The assurances sought were directed solely to the question of penalty, not the mode of trial. Indeed, the assurances sought did not even preclude the possibility that the death penalty might be imposed (although that was the preliminary request). Ultimately, the request was for an undertaking that, if imposed, the death penalty would not be carried out.

51. The absence of direct evidence as to what passed between senior political figures in the US administration and the UK authorities cannot be deemed to establish that there was a failure on the part of the latter adequately to make the case for acceptance of or the need for compliance with the assurances, however. There may well have been exchanges which are not referred to in the evidence which was presented to the Divisional Court and relied on before this court. In any event, it would have been a matter for political judgment as to whether representations along those lines would have been availing. Absent a glaring and obviously irrational failure on the part of the UK government to make pertinent representations to the US administration, the courts are powerless to intervene.

52. On 18 May 2018 UKCA made a further submission to ministers. They maintained their advice that the Home Secretary should continue to require a full death penalty assurance. In a telling passage in the submission, the following appears:

“[The need for a comprehensive assurance that the suspects will not be subject to the death penalty] is critical to the consistency with which we apply HMG’s policy on Overseas Security and Justice Assistance … Were we not to apply this practice to this case, it could undermine all future efforts to secure effective written death penalty assurances from the US authorities for future UK security and justice assistance. The exception made for the US in this case could also undermine future efforts to secure similar assurances from other countries with which we have a security relationship … particularly if as seems likely there is litigation which leads to the disclosure of the level of assurance. It could leave HMG open to accusations of western hypocrisy and double standards which would undermine HMG’s Death Penalty Policy globally, including in the US.”

53. These were formidable arguments in favour of maintaining the long-standing policy of the UK and of resisting the pressure from the US authorities. But, in a note of 24 May 2018, the director of Home Office International declined to accept them:

“Although it clearly runs the risk of creating a precedent for the future and with other countries, taken in the round I am comfortable that proceeding with no assurances is appropriate in securing justice for the families; notwithstanding the fact [that] we understand the families wish to avoid application of the death penalty.”

54. There appears to me to be an inherent illogicality in this statement. As the director had observed, the families wished to avoid the application of the death penalty. Yet, the mooted justification for the decision not to seek assurances concerning the death penalty was the “securing [of] justice for the families”. The species of justice that the families wished to have was one where there was not the possibility of the imposition of the death penalty. The decision not to seek assurances opened up that very possibility. To fulfil their wishes, it was surely required that the hallowed practice of seeking death penalty assurances be observed.

55. On 24 May 2018, the Security Minister notified Home Office officials that his “final position” was to make a “… strong recommendation, in this exceptional case, that HMG does NOT seek assurances (either ‘full or direct use’) around the death penalty, when sharing evidence for a Federal Prosecution only”. The Home Secretary’s private secretary confirmed on 29 May that both ministers had concluded that no assurances should be sought from the US.

56. A meeting took place between the Home Secretary and Attorney General Sessions on 30 May 2018. Mr Sessions repeated his view that the US should not be left to assume responsibility for other nations’ terrorist fighters. He said that “if the US were to [be] … willing to try Mr El Sheikh in a civilian court as opposed to a military one, he could not see how the US could do that without the UK evidence or without recourse to the death penalty.” Mr Biggar described Mr Javid’s reaction to this approach in the following passage of his witness statement:

“It became clear to the Home Secretary during the course of [that] meeting that the position of the US remained unchanged and that there was no prospect of the Attorney General offering any form of undertaking whatsoever. He assessed that, if he asked for assurances (whether full or partial), it was likely to prompt the sort of outrage he had been advised of, and would damage the prospects of a US criminal prosecution. He judged that the question of assurances was critical to whether Attorney General Sessions consented in due course to such a prosecution. Into his calculation about pressing the assurances point during the meeting, he also considered the wider UK government interests at stake, including co-operation on security issues and potential damage to the bilateral relationship.”

57. Again, it is not suggested that the Home Secretary raised the point that the seeking of assurances about the death penalty was a traditional feature of this type of exchange. Nor does it appear to have been suggested that the UK was opposed, as a matter of entrenched principle, to the taking of any step that would facilitate the imposition and carrying out of the death penalty. One may not assume, however, (largely for the reasons given at para 51 above) that these matters were not drawn to the attention of the Attorney General. Still less may one assume that it was not decided that it was either pointless or impolitic to do so. On either basis, the omission to raise these matters, however cursorily surprising, does not warrant judicial interference.

58. The Home Secretary made it clear, however, that the UK could not provide material to be used in a military court or any process at Guantanamo Bay. This is somewhat perplexing. Why was the prospect of detention so much less favourable than the possibility of Mr El Sheikh being executed? This has not been explained.

59. The day after the Home Secretary’s meeting with the American Attorney General, a submission was made by civil servants to the Secretary of State for Foreign and Commonwealth Affairs. Three options were identified: first, to seek a full death penalty assurance; secondly, to seek a partial death penalty assurance; and thirdly to seek no assurance. The advice to the Foreign Secretary was to urge the Home Secretary to seek a full assurance. Seeking comprehensive assurances was consistent, the submission stated, with the general expectations set out in UK policy on overseas security and justice assistance and with all past practice when dealing with US mutual legal assistance requests. The submission accepted that sharing information without assurances provided the greatest chance that the US would pursue a federal prosecution. It then continued:

“A successful prosecution will serve as a deterrent to others and give the public confidence in our ability to see justice served. However, there are wider national security risks if the prosecution results in execution as this could be used by radicalisers in the UK.”

60. The Home Secretary wrote to the Foreign Secretary on 11 June 2018, indicating that “significant attempts” had been made to obtain full assurances but that the time had arrived to accede to the request for information without seeking any assurance. He acknowledged that there was a serious risk that Mr El Sheikh and Mr Kotey would, if prosecuted and convicted, face execution as a direct result of UK assistance. The Foreign Secretary replied on 20 June 2018. His letter concluded, “On a balanced assessment of the key risks …, I agree that as this is a unique and unprecedented case, it is in the UK’s national security interests to accede to an MLA request for a criminal prosecution without death penalty assurances for Mr Kotey and Mr El Sheikh”. The Home Secretary duly informed Attorney General Sessions on 22 June 2018 that the UK would not seek death penalty assurances.

61. Many witness statements were then supplied to the US authorities. As the Divisional Court has pointed out, however, this does not render the present challenge academic. Further material may be sought and it is, in any event, entirely possible that the UK would refuse to permit witnesses employed by the state, such as police officers, to travel to the US to give evidence without adequate assurances.

The appellant’s arguments

(i)        There is a common law principle that the UK will not give mutual

legal assistance where there is a risk that this would lead to the imposition
of the death penalty.

62. The appellant submits that the UK, by signing two death penalty protocols to the ECHR, in 1999 and 2004, is committed to the abolition of the death penalty in all circumstances. In particular, since the signing of the Sixth Protocol to the European Convention in 1999, the UK has maintained a firm policy of refusing extradition or deportation to countries that impose the death penalty, no matter how serious the offence, and no matter how repellent the offender. The appellant argues that this is not “just some alien obligation imposed on us by the European Court”. To the contrary, the UK has taken that stance as a legal principle and it now forms part of the common law of this country. That claim is fortified, the appellant claims, by the circumstance that the UK has signed the Second Optional Protocol to the United Nations’ International Covenant on Civil and Political Rights (ICCPR) on the abolition of the death penalty in December 1989.

63. It is further suggested that the UK has adopted a policy of not providing evidence that might give rise to the risk of the imposition of the death penalty unless assurances are given by the requesting state that that penalty will not be carried out. At the Thirteenth Special Session of the UN General Assembly on 19 April 2016, the UK declared:-

“The United Kingdom has a proud history of championing human rights, and we oppose the use of the death penalty in all circumstances as a matter of principle. The United Kingdom does not provide criminal justice or other assistance that may result in a death sentence being applied. We will hold international agencies funded by the United Kingdom to account for compliance with that principle and all other human rights obligations.”

64. The appellant points out that the policy of seeking assurances has been repeatedly referred to by UK authorities as the logical consequence of this country’s position of rejecting the death penalty as wrong in all circumstances everywhere. It was reflected in the statement to the UN in April 2016, and in the Foreign Office recommendation recorded in the UKCA briefing of 18 May 2018 - (para 52 above).

65. The policy accords, the appellant claims, with the obligation imposed on abolitionist states by the ICCPR, as authoritatively interpreted by the Human Rights Committee in its General Comment No 36, para 63, which says, inter alia, that states who are parties to the covenant have an “obligation to respect and to ensure the rights … of all persons who are … subject to its jurisdiction, that is, all persons over whose enjoyment of the right to life it exercises power or effective control”. The appellant argues that the frequently declared policy of the UK government, reflecting as it does the obligation in the ICCPR, to which it has subscribed, gives effect to a principle of law. That principle is that, in the exercise of its formal powers in the criminal justice field, the government of this country should not act in any way that is directly instrumental in the imposition of the death penalty.

66. The appellant accepts that, in providing evidence to the United States, the Home Secretary was exercising a prerogative power. But she argues that that power must be exercised in accordance with the fundamental principles of the common law, the dictates of humanity, and the requirements of international human rights law. It is argued that the death penalty offends against the evolving requirements of humanity enshrined in the common law. It is also argued that the death penalty (and any facilitation of it) is contrary to article 10 of the Bill of Rights 1688 which prohibits “the infliction of cruel and unusual punishments”. The Bill of Rights is, the appellant says, an always-speaking statute and its prohibition of “cruel and unusual punishments” must be interpreted dynamically in accordance with evolving standards of decency. For these reasons, the appellant contends that it is an unlawful exercise of public power to impose the death penalty, or knowingly and directly to facilitate its imposition.

(ii)       The non-facilitation argument

67. The appellant submits that it cannot be lawful or rational to facilitate a penalty

that the UK regards as inhuman. At para 34 of the Human Rights Committee’s
General Comment No 36 (see para 65 above) it is stated:

“States parties that abolished the death penalty cannot deport, extradite or otherwise transfer persons to a country in which they are facing criminal charges that carry the death penalty, unless credible and effective assurances against the imposition of the death penalty have been obtained.”

68. The facilitation of inhuman treatment, it is suggested, is contrary to the fundamental principles of the common law and the European Convention. The appellant accepts that Strasbourg case law on the non-facilitation principle has not yet been expressly extended beyond cases involving extradition or expulsion. It has not yet been applied to cases where the facilitation takes the form of the provision of mutual legal assistance which is likely to contribute causally to the imposition of the death penalty in a foreign state. But, as a matter of logic, it should be, the appellant says. If it is wrong to extradite or deport persons who would face execution in the countries to which they are extradited or deported, it is equally wrong to supply information or evidence which would lead to their execution in the country to which the evidence has been provided.

69. The practical reason for the fact that Strasbourg jurisprudence and the case law of this country founded on the Human Rights Act 1998 (HRA) have not addressed this question is, the appellant says, that the person who invokes Convention protections must be within the jurisdiction of a Convention state at the time of the injustice he complains of. But this, it is claimed, should not inhibit the development of the common law.

70. The appellant is herself in this jurisdiction and therefore within the jurisdiction of the Convention. It might have been argued that, as the close relative of Mr El Sheikh, she could claim to be a victim of a potential breach of her son’s right to life (see Rabone v Pennine Care NHS Trust (INQUEST intervening) [2012] UKSC 2; [2012] 2 AC 72). This is not the basis of the appellant’s case, however, which is that the common law prohibition on facilitation applies regardless of the location of any individual. It is therefore not necessary for this court to consider any alternative route under the Convention.

71. The domestic law principle on which the appellant relies is said to be founded on the duty of the state not knowingly to contribute to the imposition of an inhuman punishment through the exercise of its formal powers. That duty, it is claimed, cannot rationally or justly be limited to cases where the individual in question is in the UK. The person who is extradited to face the death penalty is in precisely the same position as he whose execution has been facilitated by the provision of mutual legal assistance. In both instances there is in play an underlying principle that it is inconsistent with a fundamental common law principle of justice for the government to facilitate the imposition of a cruel and inhuman punishment in a foreign state.

(iii)      Should the common law’s development “outstrip” the limits of

Strasbourg case law?

72. The Divisional Court held that the HRA set the limits of any development in this area when it gave effect to the European Convention, with the accompanying territorial limits to the application of the Convention. It then held that it was wrong to develop the common law in a manner not sanctioned by the relevant statutory provisions. In challenging these conclusions, the appellant argues that the HRA contains no express or considered limitation to the developments of common law principles in respect of the non-facilitation of the death penalty. It is too general a statute to serve such a function. It is pointed out that in such cases as R (Osborn) v Parole Board [2013] UKSC 61; [2014] AC 1115, Kennedy v Information Comr (Secretary of State for Justice intervening) [2014] UKSC 20; [2015] AC 455 and A v British Broadcasting Corpn (Secretary of State for the Home Department intervening) [2014] UKSC 25; [2015] AC 588 this court has asserted that the HRA does not remove or limit the power of the common law to develop so as to protect fundamental rights.

73. It was further submitted that the HRA should not be regarded as providing the sum of common law wisdom on the death penalty. The jurisdictional limits of that Act and the Convention were the product of the way in which the Convention was drafted nearly 70 years ago. There was no reason, the appellant argued, that domestic principles of public law should not go further, particularly when they give effect to the underlying rationale of the extradition cases, namely that the UK should not make itself complicit in the imposition of the death penalty by positively facilitating it.

74. The Divisional Court held that the decisions in R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44; [2014] 1 WLR 2697 and R (Zagorski) v Secretary of State for Business, Innovation and Skills [2010] EWHC 3110 (Admin); [2011] HRLR 6 presented obstacles to the recognition of the common law right claimed by the appellant. It was submitted that these decisions were readily distinguishable. That submission will be considered in the discussion section of this judgment.

(iv)       Does the US death penalty regime give rise to cruel and inhuman

punishment?

75. Relying on, among other cases, the decision of Pratt v Attorney General of Jamaica [1994] 2 AC 1, the appellant argued that the death penalty regime in the US gave rise to a specific risk of inhuman and cruel punishment. This was because inevitably execution was delayed many years after the death penalty had been imposed. Prolonged delay by itself violates the protection against cruel, inhuman or degrading treatment, the appellant argued.

76.       The Divisional Court rejected this argument, observing that the decision in

Pratt “turned on the interpretation of the Jamaican Constitution” and that it “did not establish a rule of the common law, either in Jamaica or generally, that particular periods of delay made the enforcement of the death penalty unlawful”. The appellant contended that this constituted a misunderstanding of the Pratt decision.

77. It was also argued that what was described as “the death row phenomenon” was contrary to customary international law. In this context, the appellant relied on article 5 of the Universal Declaration of Human Rights 1948, which provides: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”, and article 7 of the UN International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Again, these arguments will be considered in the discussion section of this judgment.

(v)        Does the provision of mutual legal assistance breach the Data

Protection Act 2018 (DPA)?

78. Finally, the appellant argued that the provision of mutual legal assistance in the form of various statements from witnesses etc was in breach of the 2018 Act as interpreted in light of relevant provisions of European Union data protection law. The DPA was intended to give effect to the UK’s obligations under the EU Law Enforcement Directive 2016/680 (the LED). It was argued that the DPA should be interpreted by reference to the EU Charter of Fundamental Rights (the Charter). On that basis, the appellant claimed that it was unlawful for law enforcement authorities in the UK to transfer personal data to law enforcement authorities abroad for use in capital criminal proceedings.

232. In the domestic laws of the United Kingdom it is Parliamentary legislation rather than the common law which has created and delimits the right to life by the abolition of the death penalty for all offences and the enactment of the Human Rights Act 1998 (“the 1998 Act”). It is in the 1998 Act that the right to life has become part of our domestic laws. Further protection has been provided, indirectly, by data protection legislation, now the 2018 Act, and, as far as it goes, by section 16 of the Crime (Overseas Production Orders) Act 2019 (“the 2019 Act”), which amends section 52 of the Investigatory Powers Act 2016.

233. It is not difficult to envisage circumstances in which the Secretary of State might want to provide intelligence to the government of another country to avert serious loss of life in a planned terrorist attack and that intelligence might expose a person in the custody of the foreign state to criminal charges which may carry the death penalty. The United Kingdom’s international obligation to protect the right to life under article 2 of the European Convention on Human Rights, which section 1 of the 1998 Act introduced into our domestic laws, would, it appears to me, require the Secretary of State to balance the necessity of providing information to save lives against the possibility of facilitating the imposition of the death penalty on that person. Were the courts to recognise a parallel common law right to life and similar qualifications to that right, that would not be the incremental development of the law building on established principles of the common law; it would amount to judicial legislation. It is for Parliament to decide whether it wishes to go beyond the amendment which it made in the 2019 Act.

234. Our public law reflects the very high value which our society places on human life by requiring the courts to adopt an especially intense scrutiny when reviewing the legality of a decision which may imperil a person’s life. Having regard to the arguments advanced in this appeal, that scrutiny involves the review of the exercise of prerogative powers against the common law criterion of reasonableness (in relation to the Secretary of State’s change of position) and against the requirements which Parliament has imposed in the 2018 Act. While the appeal fails on the former basis, it succeeds on the latter.

JUDGMENT

Elgizouli (Appellant) v Secretary of State for the

Home Department (Respondent)

before

Lady Hale Lord Reed Lord Kerr

Lord Carnwath

Lord Hodge Lady Black

Lord Lloyd-Jones

JUDGMENT GIVEN ON

25 March 2020

Heard on 30 and 31 July 2019