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26 March 2020

Supreme Court rules UK handing US information about El Shafee is unlawful

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By Sangeeta Bedi

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The Supreme Court has ruled that it was unlawful for the Home Office to assist the US government in the prosecution of El Shafee, a suspected terrorist, without assurances that the information would not be used indirectly, or directly, for a prosecution that could lead to the death penalty.

The court backed an appeal by the mother of El Shafee Elsheikh and said that the Home Office had acted out of “political expediency” in sending evidence about her son to the US.

Commenting on this judgment, Partner Andrew Smith said:

“It has long been the case that the UK has refused to extradite individuals to the US for capital crimes without a clear assurance that those individuals will not receive the death penalty. But before today, transferring information to the US, which could be used as evidence in the prosecution of those same crimes, and potentially lead to convicted criminals receiving the death penalty, did not require any assurance. This anomaly has been resolved by the judgment from the Supreme Court, which reveals the power of data protection legislation to provide safeguards for suspected criminals – safeguards which are more powerful than any judge-created common law.

“The Supreme Court observed icily that the Home Secretary’s decision to share the data was motivated by little more than political expediency. Since the data protection legislation which defeated the Government in this instance is founded on EU law, it remains to be seen whether political expediency will lead the Government to amend it after the transition period ends, thereby loosening the UK from the EU’s criminal justice orbit and moving towards ever greater collaboration with the US.”

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