Elgizouli v Secretary of State for the Home Department [2020] UKSC 10

As our avid readers would know, we have a real interest in Home Office and immigration cases. This case refers to terrorists in Syria…

Shafee El Sheikh is alleged to have been part of a British group of ISIL terrorists (the so-called “Beatles”), suspected of murdering British and American citizens in Syria. El Sheikh and another suspected terrorist were captured in January 2018. After the Crown Prosecution Service determined that it had insufficient evidence to prosecute them, the US decided to bring criminal proceedings.

As it usually would in a case such as this, the UK Government requested an assurance from the US Attorney General that information provided by the UK to assist the investigation would not be used in a prosecution that could lead to the imposition of the death penalty. But on this occasion the US refused to provide a assurance. The Home Secretary then decided that because this was a “unique” and “unprecedented” case, it was in the UK’s national security interests to accede to the request nonetheless.

Although the Divisional Court dismissed the challenge to this decision, the Supreme Court held that although there was no established common law principle which prohibited the sharing of information in a case such as this, the relevant requirements for transfer of personal data as set out in the Data Protection Act 2018 had been breached.

Lord Kerr, who passed away in 2020 dissented: he would have gone further and held that there was a common law principle against the facilitation of the death penalty. In his view, this was the “natural and inevitable extension” of the prohibition of extradition or deportation without death penalty assurances.

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