The UK Supreme Court has held that the UK government’s sharing of intelligence with US authorities without assurance that it could lead to the death penalty violated the Data Protection Act 2018 and was unlawful.
In June 2015, the United States made a mutual legal assistance request to the UK in relation to an investigation into the appellant’s son who was alleged to have been a member of Islamic State and involved in the murder of UK and US citizens in Syria. The Home Secretary requested assurances that the information provided by the UK would not be used directly or indirectly in a prosecution that could lead to the death penalty. The US refused to provide such assurances. In June 2018, the Home Secretary agreed to provide the requested information to US authorities, despite not having received the aforementioned assurances.
The appellant challenged the Home Secretary’s decision by way of judicial review. The case was dismissed by the Divisional Court but it certified two questions of public law importance. They were (a) whether it is lawful for the Home Secretary to exercise his power to provide mutual legal assistance so as to supply evidence to a foreign state that will facilitate the imposition of the death penalty, and (b) whether it is lawful under Part 3 of the Data Protection Act 2018 for law enforcement authorities in the UK to transfer personal data to authorities abroad for use in capital punishment proceedings. The Supreme Court allowed the appeal.
In relation to the first question, the Court asked whether the common law had evolved to recognise a principle prohibiting the provision of mutual legal assistance that would facilitate the death penalty.
Lord Kerr was of the opinion it had, noting that the common law is not immutable and develops over time to reflect the changing values of society. In his view, European Court of Human Rights jurisprudence, the opposition of successive UK governments to the imposition of the death penalty and the long-standing policy not to provide mutual legal assistance without assurances reflected the values of contemporary British society. He concluded that a common law principle should be recognised whereby it is deemed unlawful to facilitate a trial in a foreign country where an individual may face the death penalty.
The majority of the Court disagreed. For the majority, Lord Carnwath warned that the power of the court to develop the common law must be used with caution. He noted that the key legal developments in the UK’s approach to the death penalty have come from Parliament and the European Court of Human Rights, not the domestic courts. Moreover, the most recent piece of legislation on the issue, (Crime (Overseas Production Orders) Act 2019) does not specifically prohibit the Home Secretary from providing assistance without assurances. In his view, this indicates that the common law has not developed as Lord Kerr suggests.
Lord Reed added that judicial development of the common law must be built incrementally on existing principles, in order to maintain Parliament’s pre-eminent constitutional role in law making. In his view, the courts recognising a development in the common lawsuch as the one proposed by Lord Kerr would not be compatible with this principle. Lord Hodge stated that the common law as it stands does not recognise a right to life which can be used to prevent the Home Secretary from providing mutual legal assistance in the way that Lord Kerr suggests.
On the second question, the Court asked whether it was lawful, under Part 3 of the Data Protection Act 2018, to transfer personal data to law enforcement authorities abroad for use in capital criminal proceedings. On this point, the Court was unanimous in holding that the Home Secretary’s decision was unlawful under the Data Protection Act. Section 73 of the Act covers the transfer of personal data for law enforcement purposes. A data controller cannot transfer data unless three conditions are met. The transfer must be (i) necessary for any of the law enforcement purposes; (ii) based on an adequacy decision from the European Condition, appropriate safeguards or special circumstances; and (iii) made to a relevant authority in a third country.
Lady Hale and Lord Carnwath agreed that the data transfer in this case was not based on an adequacy decision, appropriate safeguards or special circumstances. Rather than being based on a consideration of strict necessity under statutory criteria, in their view, the decision was based on political expediency. This being the case, the Home Secretary’s decision was unlawful under the Data Protection Act.
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