On 15 July, a blog post from Corker Bining looked back at a Supreme Court unanimous ruling that the Home Secretary had acted unlawfully in providing to the US authorities mutual legal assistance – in the form of the product of UK police enquiries – which would be used to facilitate the prosecution of offences carrying the death penalty. The Court declined to establish a common law principle that facilitation of the death penalty through the provision of MLA is unlawful – but rather, unlawfulness arose from the failure to take into account the provisions of the Data Protection Act 2018 concerning the transfer of personal data to third countries. This post explores the consequences of this judgment, not just for death penalty cases, but for all cases in which the provision of MLA to an overseas prosecutor engages the DPA – but cautions that, as the DPA implements EU law, Brexit may change things. It concludes by warning that, in the hands of an unprincipled Secretary of State, a new-found freedom from the EU could become a recipe for yet more criminal justice decisions motivated by political expediency.
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