Supreme Court allows appeal on the UK’s facilitation of the death penalty abroad

The Supreme Court has allowed an appeal challenging the Home Secretary’s decision to send evidence to the United States without seeking an assurance that it would not be used in capital proceedings (Elgizouli v Secretary of State for the Home Department [2020] UKSC 10). The appeal was brought by the mother of one of two suspected members of an ISIS group known as “The Beatles”, who are said to be responsible for the murder of British, American and other foreign nationals in Syria.

Any prosecution in the United States would depend on evidence that had been gathered by the UK. Home Secretaries Theresa May and Amber Rudd were willing to provide the evidence by way of mutual legal assistance, but the offer was subject to the UK’s usual requirement for a death penalty assurance – an undertaking that the evidence would not be relied on in proceedings that might result in the death penalty. The United States was not prepared to provide this assurance so the evidence was not sent. Shortly after succeeding Amber Rudd as Home Secretary, Sajid Javid abandoned the previous position in the face of an increasingly irate Trump administration and provided the evidence without even asking for a death penalty assurance. His decision was approved by the then Foreign Secretary, Boris Johnson, and it was then leaked to The Daily Telegraph.

In a claim for judicial review, the appellant argued firstly that although her son needed to be brought to justice, there was no justification for the UK to abandon its historic and absolute opposition to the death penalty in all circumstances, by providing the evidence without a death penalty assurance. She argued that the common law has now evolved to the point of prohibiting any government actions that facilitate the death penalty in any country. The appellant’s second argument was that the evidence had been sent to the US authorities in breach of the UK’s data protection laws.

In a powerful dissenting judgment, Lord Kerr accepted the appellant’s argument on the common law, but the majority of the Court disagreed. The Court unanimously allowed the appeal on the data protection argument.

The appellant was represented by Edward Fitzgerald QC and Joe Middleton, together with Richard Hermer QC and Edward Craven of Matrix Chambers and Julianne Morrison of Monckton Chambers, all instructed by Gareth Peirce and Anne McMurdie of Birnberg Peirce Solicitors.

Tim Moloney QC and Jude Bunting acted for the intervener, Professor Christoph Heyns, the former United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions and a current member of the United Nations Human Rights Committee.  They were instructed by David Rundle of WilmerHale.