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

Facts: Appellant was a mother alleged to have travelled from Syria to join forces with terrorist ground. The son is alleged to be a terrorist involved in the murder of US and British citizens. She came into US territory and US sought information sharing from the UK. UK initially sought a guarantee that the information will not be used to facilitate a death penalty but provided the mutual assistant despite not having the guarantee. Appellant could not rely on ECHR directly due to the son’s nationality.

Held: Common law argument is dismissed. Death penalty has never attracted the attention of the common law; it was developed under P and ECHR not from domestic courts.

• Majority: Common law must be developed with caution and incrementally to preserve legal certainty (Lord Reed). Lord Kerr’s suggestion would be a massive leap not an incremental approach. Osborn v Parole Board [2014] “support the development of the common law in line with European Convention, but not beyond as here proposed” - Lord Carnwath

• Dissenting (Lord Kerr) : Common law rights should be extended here as it’s in line with various sources (Bill of Rights, British values in the abolition of the death penalty, ECHR jurisprudence that condemns death penalty). It’s a seamless step not a leap. A refusal to recognise the right would create inconsistency in common law and would be an antithesis of the RoL.

• (Lady Hale): The protection comes not from common law but from the Data Protection Act 2018 itself.