Elgizouli v Secretary of State for the Home Department: Mutual Legal Assistance and the Death Penalty

Abstract

In Elgizouli v Secretary of State for the Home Department, the UK Supreme Court reviewed the Home Secretary’s decision to assist the US federal authorities to prosecute two alleged terrorists, who were accused of heinous crimes on behalf of ISIS in Syria where they were detained. The mutual legal assistance provided personal data without securing death penalty assurances. The majority held that the transfer was not unlawful under common law, but that that the Home Secretary had breached procedural requirements in the Data Protection Act 2018. The decision clarifies the obligations of data controllers and so enhances the individual’s right to privacy. Equally, it indicates the majority’s reluctance to overstep the limits of judicial review and to develop common law rights against the death penalty. The case highlights the need for Parliament to confront the issue and to constrain the Home Secretary’s prerogative powers. Developments subsequent to the decision of the UK Supreme Court are also analysed, including undertakings given by the US Attorney General, a further review by the High Court, and then the transfer of the prisoners to the US jurisdiction.

Keywords: Data processing; Death penalty; Mutual assistance; Prerogative powers; Terrorist suspects; Transfer of personal data to third countries

JEL Classification: K10, K14, K33, K19, K30, K33, K42, N40