Government acted unlawfully in assisting USA to prosecute IS fighter — an extended look

14 April 2020 by Sapan Maini-Thompson

To what extent can the government be held liable for facilitating the imposition of the death penalty in a foreign state?

Since signing the Sixth Protocol to the European Convention in 1999, the UK has refused to extradite or deport persons to countries where they are facing criminal charges that carry the death penalty.

There is no judicial precedent, however, which prohibits the sharing of information relevant to a criminal prosecution in a non-abolitionist country. Therefore, in Elgizouli v Secretary of State for the Home Department [2020] UKSC 10, there were two questions before the Supreme Court:

1. Whether it is unlawful at common law for the Secretary of State to provide mutual legal assistance (in the form of evidence) that will facilitate the death penalty in a foreign state against the individual in respect of whom the evidence is sought; and

2. Whether and 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.

In a judgment which showed tremendous sensitivity to the primacy of the legislature, a majority of the Supreme Court (with Lord Kerr dissenting) held the provision of mutual legal assistance (MLA) was not unlawful under the common law.

Nonetheless, the Court unanimously allowed the appeal on the second ground under Part 3 of the DPA 2018, overturning the ruling of the Divisional Court.

Factual Background

Shafee El Sheikh, who is the son of the Appellant, is alleged to have been part of a British group of ISIS terrorists (the “Beatles”) suspected of murdering British and American citizens in Syria. El Sheikh was captured with another suspect, Mr Alexanda Kotey, in January 2018. After the Crown Prosecution Service determined that it had insufficient evidence to warrant charging El Sheikh, the US expressed its intention to prosecute the two men.

In 2015, the US made an MLA request to the UK in relation to an investigation into the activities of said group. Two of the offences which the US was investigating (homicide and hostage taking resulting in death) carried the death penalty. The Home Secretary (Sajid Javid) requested an assurance from the US Attorney General that the information would not be used directly or indirectly in a prosecution that could lead to the imposition of the death penalty.

The US refused to provide a full death penalty assurance. The Home Secretary then decided that because this was a “unique” and “unprecedented” case [60], it was in the UK’s national security interests to accede to an MLA request without that assurance. Upon revelation of this fact, the Appellant brought a claim for judicial review.

The Judgment of the Supreme Court

Ground of Appeal 1: Common Law and the “Non-Facilitation Principle”

The Appellant advocated a “non-facilitation principle”, according to which “it cannot be lawful or rational to facilitate a penalty that we ourselves regard as inhuman” [199]. Her argument was founded on the fact that under both its domestic and international legal commitments, the UK government is opposed to the death penalty in all circumstances.

Thus, logical consistency required that if the UK deems it wrong to extradite or deport persons to countries where they would be executed, 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.

Incrementalism in developing the Common Law

The majority dismissed this argument on grounds that recognising a non-facilitation principle, or a common law right to life in MLA proceedings, would not be an “incremental step” in the development of the common law [170]. Indeed, according to Lord Hodge it would be “judicial legislation” [233].

Per Lord Carnwath, there is

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 Role of Parliament

As the Divisional Court observed at [94], the common law has never considered the death penalty. Developments in the law regarding the death penalty have only ever come from Parliamentary legislation (which abolished the practice in 1969) and the European Court of Human Rights. In 2004, the Thirteenth Protocol excluded the death penalty in all circumstances.

Furthermore, the recent passage of the Crime (Overseas Production Orders) Act 2019 shows “this is an area in which Parliament remains directly involved” [195]. Section 16 of the 2019 Act, which amended Section 52 of the Investigatory Powers Act 2016, requires the Secretary of State to seek death penalty assurances in respect of overseas requests for information obtained via the interception of communications. Lord Carnwath said it is potentially relevant that this section “contains no specific prohibition on the exchange of material where no such assurance is ultimately obtained” [195].

He was also keen to emphasise that this case does not concern facilitation in general, but facilitation by the transfer of information. It would be difficult to reconcile the data protection scheme within the DPA 2018 “with an absolute common law prohibition of the transfer of information in defined circumstances” [205].

Right to Life and Rationality Review

Lord Reed sought to demarcate the right to life and its various legal permutations. The present discussion concerned the potential deprivation of life in neither criminal law nor tort where established principles exist. Rather, it constituted a possible consequence of the exercise of prerogative powers. Discretion in the exercise of those powers is reviewed against the standard of rationality. Where issues of life and death are at stake, even decisions taken under prerogative powers should be reviewed with the “most anxious scrutiny” (R v Secretary of State for the Home Department, Ex p Bugdaycay [1987] AC 514). Essentially, the intensity of rationality review should be more rigorous where fundamental rights are at stake. As the Secretary of State did apply the most anxious scrutiny, his decision to depart from the government’s usual approach in death penalty cases did not, ipso facto, render it irrational [180].

Lord Kerr’s Dissent

In his dissenting opinion, Lord Kerr held there was a common law principle against the facilitation of the death penalty. This conclusion, he opined, was the “natural and inevitable extension” of the prohibition (in the common law as well as under the Human Rights Act) of extradition or deportation without death penalty assurances [142]. His dissent consisted of five main themes.

The Bill of Rights and Parliament

First, 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”. This is an “always-speaking” statute and must be interpreted in accordance with evolving standards of decency. British policy is clear in rejecting the death penalty and this understanding should influence the common law. As Lord Kenyon famously held in R v Rusby (1800), the common law “was formed from time to time by the wisdom of man”.

Contrary to his fellow Justices who considered that Parliament’s engagement necessitated caution, Lord Kerr held that because Parliament has not legislated definitively in this area, there was in fact scope for the common law to develop. Moreover, he judged that nothing could be inferred from the fact that in Section 16 of the 2019 Act, Parliament had not legislated to prohibit the provision of assistance without death penalty assurances.

ECHR Jurisprudence and the development of the common law

Second, even though there is no judicial precedent in this area, “the development of the common law is not immune from nor does it disavow external influence” [107]. As Lord Reed held in R (Osborn) v Parole Board [2013] UKSC 61, UK courts “are able to (and should where appropriate) take account of obligations arising under the ECHR in the development of the common law” [57]. Additionally, in Kennedy v Information Comr [2014] UKSC 20, Lord Mance said, “Convention rights represent a threshold protection”, implying the common law may exceed the ECHR.

Protocol 13 in article 1 abolished the death penalty. In Al-Saadoon v United Kingdom (2010) 51 EHRR 9, the Court held there can be “no derogation in any circumstances” from article 1 [118]. Indeed, it ranks alongside ECHR Article 2 (right to life) and Article 3 (right against cruel and degrading treatment) as a “fundamental right”. Both Strasbourg case law and the Thirteenth Protocol are unanimous, therefore, in their opposition to the death penalty in every circumstance.

Without disputing this, the Respondent submitted that the ECHR/HRA jurisprudence is positively against the state taking actions within its jurisdiction to protect an individual outside the jurisdiction of the ECHR (Khan v United Kingdom (2014) 58 EHRR SE15; R (Sandiford) v The Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44.)

Nonetheless, the Appellant was not arguing for reliance upon a convention right. Instead, it was sought to demonstrate the ubiquity of opposition to capital punishment. Indeed, in Sandiford, Lord Dyson MR held there was an obligation upon the UK to “ensure that EU minimum standards are met in countries which retain the death penalty.” [7] Lord Kerr considered that compliance with this provision could not be reconciled with the transfer of material which risked facilitating the death penalty.

He further distinguished this case from the ratio in R (on the application of Zagorski) v Secretary of State for Business, Innovation and Skills [2010] EWHC 3110 (Admin), which concerned an application to halt the export of chemicals for use in American executions. In that case, Lloyd-Jones J (as he then was) held the UK government had no general, common law duty to take positive steps to protect an individual’s life from the actions of a third party. But here, the UK government was not abstaining from an action to protect an individual from the death penalty. Rather, it was taking a positive action, which might facilitate an execution.

In sum, the common law should be seen as an “autonomous organism”, which may develop “on its own initiative” [124]. 

EU Law

Third, the “overwhelming character of EU law is one of settled, unmistakable opposition to the death penalty in every circumstance” [134]. Having been a member of the EU for more than 40 years, this jurisprudence was of “clear relevance” to the development of the UK’s common law.

The need for a consistent policy of non-complicity

Fourth, there was a “fundamental illogicality” in the discrepancy between the prohibitions in the extradition regime and the lack thereof in the MLA regime. To demonstrate the “irrationality” of this approach, Lord Kerr referred to two international authorities.

First, in Mohamed v President of the Republic of South Africa [2001] ZACC 18, the Constitutional Court of South Africa identified a principle of non-complicity as a justification for the refusal to extradite without a death penalty assurance. This principle states “that South Africa will not be party to the imposition of cruel, inhuman or degrading punishment” (para 59). Importantly, this principle was not limited to persons already within the jurisdiction of the country’s courts. According to Lord Kerr, this account of complicity is morally instructive in respect of providing MLA which facilitates the death penalty.

Second, what matters is whether the state whose actions are impugned has, by its actions, “established the crucial link in the causal chain that would make possible the execution of the author” [para 10.6 Judge v Canada (2005) 40 EHRR SE4]. The UK’s actions in supplying MLA made possible an American execution, rendering it immorally complicit.

Risks inherent to the US Death Penalty Regime

Fifth, Lord Kerr held the long delays between passing a death sentence and execution under the US death penalty regime (the “death row phenomenon”) gave rise to a “specific risk of inhuman and cruel punishment”, in violation of the common law. The main authority for this proposition was Pratt v Attorney General of Jamaica [1994] 2 AC 1. In that case, the Privy Council held that a state which wished to retain capital punishment must ensure the execution followed as swiftly as practicable after sentence, allowing a reasonable time for appeals.

The Divisional Court rejected this argument, ruling this decision “turned on the interpretation of the Jamaican Constitution”. In its view, the Privy Council did not establish any common law rule. But this was wrong. In Pratt, Lord Griffiths said that, “Prior to independence, applying the English common law, judges in Jamaica would have had the … power to stay a long-delayed execution” [p19C-D]. Thus, it was because there was a common law rule against protracted delays in executions that the Jamaican Constitution “could not save the situation” [139]. Lord Kerr then referred to more recent authorities from Commonwealth jurisdictions to validate this position. He did not, however, recognise any customary principle of international law to this effect.

Necessary Limitations: Sharing Information in Exceptional Circumstances

Lord Kerr would have held that the proposed common law principle would apply in the same way as the rule relating to deportation or extradition. Hence it would only apply where a possible outcome of providing MLA is the infliction of the death penalty and the appropriate assurance had not been given. In his assessment, there was no potential for the principle to be expanded in a way than might endanger national security in emergency situations. There was a limitation, however. Where the transfer of information was “absolutely necessary as a matter of urgency to save lives”, then the principle would not apply [164].

Ground of Appeal 2: The Data Protection Act 2018

The Supreme Court unanimously held the decision to supply MLA was unlawful under Part 3 of the DPA 2018, which implements the EU’s Law Enforcement Directive.

There was agreement between the parties that the provision of material by the Home Secretary involved the “processing” of “personal data” for a “law enforcement purpose” by a “controller” which is a “competent authority” for the purposes of Part 3 of the Act.

It was also agreed that that the Home Secretary did not expressly consider his duties under the Act [152]. Despite this, the Divisional Court held that the Respondent had demonstrated “substantial compliance” with the Act.

Sections 73 to 76 set out the general conditions that apply to the transfer of personal data to third countries or international organisations. Condition 1 is that the transfer must be “necessary”. Per Warby J in Guriev v Community Safety Development (UK) Ltd [2016] EWHC 643 (QB), this is a “strict test” that requires a proportionality assessment. Condition 2 is most relevant to this case and it is contained in section 73(3):

(3) Condition 2 is that the transfer –

(a) is based on an adequacy decision (see section 74),

(b) if not based on an adequacy decision, is based on there being appropriate safeguards (see section 75), or

(c) if not based on an adequacy decision or on there being appropriate safeguards, is based on special circumstances (see section 76).

As Lady Hale put it, “This transfer was not based on an adequacy decision or on there being appropriate safeguards, because there were none.” [10] 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”.

Therefore, in absence of an adequacy condition or appropriate safeguards, Condition 2 could only be met if there were “special circumstances”. Recital 72 requires these derogations to be interpreted restrictively and limited to data which are “strictly necessary”.

The “special circumstances” are defined in section 76:

(1) A transfer of personal data to a third country or international organisation is based on special circumstances where the transfer is necessary –

(a) to protect the vital interests of the data subject or another person,

(b) to safeguard the legitimate interests of the data subject,

(c) for the prevention of an immediate and serious threat to the public security of a member state or a third country,

(d) in individual cases for any of the law enforcement purposes, or

(e) in individual cases for a legal purpose.

Relevant to this case are criteria (d) and (e), both of which must be subject to a test of strict necessity, requiring the controller to “address his mind to the proportionality of the transfer” [12].

Crucially, 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.

According to Recital 17 of the Directive, the fundamental right to data protection applies to natural persons “whatever their nationality or place of residence”. Per Recital 46, moreover, any restriction thereof must also comply with the EU’s Charter of Fundamental Rights and the ECHR, both of which enshrine the right to life.

The Divisional Court held at [206] that the transfer could be justified on the basis of “special circumstances”. However, given the Home Secretary had not made his decision in express reliance upon the Act, this statutory gateway was not available to him. Lord Kerr held: “It is not enough to say that the data protection provisions were substantially met, where direct, personal evaluation was required.” [158] Lord Carnwath similarly opined the evidence suggested the decision was based on “political expediency, rather than strict necessity under the statutory criteria.” [227]

Obiter dicta, Lady Hale acknowledged that these “provisions pointed to 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.” [15] In this eventuality, she would be prepared so to hold. Lord Carnwath was sympathetic to this position [228].

Comment

The Supreme Court’s judgment conclusion on the lawfulness of the Government’s action was undoubtedly correct. Unlike the Divisional Court which was satisfied by the Respondent’s “substantial compliance” with the DPA 2018 – a standard which permits passive engagement — the Supreme Court emphasised the necessity of data controllers taking an active approach to their statutory obligations. This reinforces the need for continuous reflection upon those duties. The Court’s methodical approach to conducting proportionality tests at each statutory gateway also sets a high standard which is likely to resonate in DPA litigation beyond MLA proceedings.

The Court’s mixed approach towards common law rights, however, showcases an enduring competition of principles regarding the limits of what Dicey termed “judicial legislation”. While the majority’s approach towards the “non-facilitation principle” highlighted necessary regard for the separation of powers, its view of incrementalism was unduly limited for two reasons. First, in prioritising institutional precedent the majority sacrificed logical consistency. Second, it was overly sensitive to the Respondent’s policy considerations, failing to clearly distinguish the need for death penalty assurances in ordinary MLA procedure from emergency scenarios.

The majority’s institutional concerns were arguably misplaced. Given the UK’s express legal commitment against the death penalty in both domestic legislation and ECHR instruments, Lord Kerr was surely right to believe nothing could be inferred from the 2019 Act’s silence on what happens when a death penalty assurance is not obtained. To infer that silence meant Parliament intends to suspend its opposition to the death penalty in undefined circumstances would surely raise questions about its rationality.

Furthermore, the majority offered no compelling reason to sustain the artificial divide between physical removal and facilitation of the death penalty through MLA. To rebut the normative appeal of a non-complicity principle, the Respondent asked: “what degree of causal connection to the death penalty would suffice?” This is a reasonable question, highlighting the scope for ambiguity when assessing direct and indirect causation. Lord Carnwath’s strict interpretation that the South African complicity principle applies solely to instances of physical removal exemplifies this scepticism [201]. Certainty could be achieved, however, with a more expansive approach to the complicity principle, rendering it unlawful for the UK to make any positive contribution towards a death penalty outcome.

Finally, in this author’s view the majority adopted an overly cautious view of how a common law principle could inhibit the transfer of information in emergency circumstances. Emergencies, by definition, impose objective delimitations to ordinary rules. To question how a rule designed for ordinary times would apply in extraordinary circumstances, therefore, risks circular logic. In any case, Lord Kerr’s proposal that the common law rule would not apply in exceptional scenarios somewhat obviates this criticism.

Sapan Maini-Thompson is training to become a barrister. He tweets @SapanMaini.