Fast-track electronic evidence gathering from overseas – One step closer
The judgment has come at an interesting time: authorities are coming to terms with increasingly transnational patterns of offending and seek to extend their jurisdictional reach. As overseas evidence gathering gains greater importance, so the protections afforded suspects and data subjects appear to be weakening. The question examined by the Supreme Court illustrated the impact of this in stark terms.
The case concerned a US request for Mutual Legal Assistance (“MLA”) to the UK to facilitate the prosecution of serious terrorism offences. The request was first made in June 2015 and the then Home Secretary followed long established practice and requested an assurance that any information provided 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. By June 2018, then Home Secretary, Sajid Javid, agreed to provide the US with the information, without seeking any assurance that the death penalty would not be facilitated or imposed.
The appellant brought a judicial review of the provision of MLA after a newspaper published a letter from the Secretary of State to the US Attorney General which confirmed that such assistance had been provided.
The Supreme Court found the transfer of information was unlawful under the Data Protection Act 2018. The processing of such data by the data controller (Secretary of State) 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".
The first point of appeal:
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.
The Court dismissed this ground, holding that 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”.
Lord Kerr dissented, finding that the time had come for the common law to recognise an absolute principle preventing mutual legal assistance where there is a risk that it would lead to the death penalty. Whilst the appeal may not have succeeded on this point, Lord Kerr’s judgment has brought us a great deal closer to more robust protection at common law in such cases.
This case is timely and comes shortly after the enactment of the Crime (Overseas Production Order) Act 2019 (”the 2019 Act”) in respect of which the importance of assurances that information shared would not be used for cases involving the death penalty was a key concern (assurances must be sought – nothing is expressed about receipt).
The Divisional Court judgment in El Gizouli arrived prior to the passing of the 2019 Act and was referred to in the February 2019 House of Lords debate. Former Supreme Court judge, Lord Hope, expressed his view that the transfer of data without a death penalty assurance would put the UK in breach of its European Convention on Human Rights obligations in respect of the right to life and the European Court’s condemnation and opposition to the death penalty “in every circumstance” (as per Lord Kerr in this case). As Lord Kerr said, “How could compliance with that position be reconciled with a decision to provide material to a country which retains the death penalty when the very provision of that material could lead to the imposition of that penalty?”
Lord Pannick (in the February 2019 debate) disagreed with Lord Hope. He referred to the Divisional Court ruling in El Gizouli, saying that he was “far less clear than the noble and learned Lord, Lord Hope, that it would be a breach of our obligations under the European Convention for us to supply information abroad in circumstances where it may be used in a prosecution that may lead to a death penalty.”
The Supreme Court in its judgment referred back to the enactment of the 2019 Act and its reference to assurances, to confirm that “this is an area where Parliament remains directly involved.”
It is open to speculation whether the outcome would have been different if the 2019 Act had come after the Supreme Court judgment (or before the Divisional Court judgment). In particular, would the 2019 Act have received greater scrutiny on the issue of assurances and afforded greater protection in requiring that assurances be received rather than simply requested, as at present?
The second point of appeal:
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.
On this the Supreme Court was unanimous that the transfer of information was unlawful.
It was accepted that the information (investigation materials including witness statements) was “personal data” for the purposes of the 2018 Act. Part 3 of the DPA provides for the processing of personal data for “law enforcement purposes”. Sections 73 to 76 set out the general conditions that apply to such transfers. The data controller cannot transfer data unless the three conditions in s. 73(1)(a) are met. The conditions were not met, but further than that, no assessment whatsoever was undertaken by the Home Secretary to determine whether the conditions were met: the Court found that “the Act requires a specific assessment under the section, and that this did not take place. The decision was based on political expediency, rather than consideration of strict necessity under the statutory”.
In short, the DPA requires the data controller to address his mind to the specific requirements of the Act and this was not done.
It is of real concern that the Home Secretary did not turn his mind to the required questions before transferring the information. It is the minimum that we can expect from politicians in a country which claims to uphold the fundamental right to life.
The judgment also revealed a further gap in logic in the Government’s position – for example, the Home Secretary’s decision that whilst it would be unacceptable for material provided by the UK to be used in a military court at Guantanamo Bay, to use such material in a prosecution leading to execution would be permissible.
The decision has not received as much press attention as it might otherwise have given recent events. However, it is a judgment of deep significance and import. It reminds us not to be complacent about hard won rights and the importance of litigation of this kind.
This judgment does not confirm that MLA will never be justified in cases where provision may in some way lead to the death penalty: Lord Reed (at 205): It is not difficult to envisage circumstances where urgent exchange of information with the US security forces might be required relating to an immediate threat to public security, which should not be inhibited by concerns that it might ultimately lead to a risk of the death penalty. However, it describes in detail the seriousness with which these decisions must be considered.
Explanations of political expediency and international relations cannot be used to justify casual disregard for the long history of opposition to the death penalty. It reminds us all, and hopefully politicians, of the value placed on the right to life and the knowledge that we all benefit when this fundamental value is upheld.
Áine Kervick is an associate in our Criminal Litigation team. She has a particular interest in the international dimension of criminal cases and advises individuals in respect of extradition requests. She is also experienced in acting for individuals in internal investigations with a focus on legal professional privilege in criminal investigations and has written a number of articles on the subject.
 Section 16 of the Crime (Overseas Production Orders) Act 2019 9, which amends section 52 of the Investigatory Powers Act 2016 (interception of communications in accordance with overseas requests) to provide, in the case of agreements with non-abolitionist countries, a prohibition on designation unless the Secretary of State: “has sought … a written assurance, or written assurances, relating to the non-use of information obtained by virtue of the agreement in connection with proceedings for a death penalty offence in the country or territory.”
 1) that it is necessary for any of the law enforcement purposes, or; 2) based on an adequacy decision of the European Commission or based on there being appropriate safeguards, or; 3) based on special circumstances.
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