“(d) in individual cases for any of the law enforcement purposes; or (e) in individual cases for a legal purpose”
“But subsection (1)(d) and (e) do not apply if the controller determines that fundamental rights and freedoms of the data subject override the public interest in the transfer.”
“As you will be aware, the UK will not provide formal mutual legal assistance in cases where the death penalty is a likely or possible punishment without a written assurance from the Requesting State that they would not seek to impose or, if imposed, carry out such penalty. As two of the offences for which the suspects are sought (homicide and hostage taking) carry the death penalty, we require, as a pre-condition to the provision of the assistance requested by you, that you provide a written undertaking that the death penalty will not be sought or imposed or, if imposed, will not be carried out against anyone found guilty of any criminal offence arising from this investigation and/or UK assistance provided.”
“With regard to potential application of the death penalty to any person found guilty of an offense arising from this investigation, we can respond as follows: While no persons have yet been charged in connection with this conduct, persons charged with offenses arising from such conduct could be subject to the federal death penalty. The United States provides the assurance that it will introduce no evidence obtained in response to this request in a proceeding against any person for an offense that is subject to the death penalty. In the event the evidence were to be so introduced, the United States would take a decision not to seek the death penalty, a decision which in the federal system absolutely precludes the death penalty from being imposed.”
“The contents of your letter of21 March 2016 have been carefully considered. However, it is our view that the assurance provided in respect of the death penalty falls short of that which was requested … In light of this [we invite] you to reconsider your response to our request for assurances as provided by article 3(2) and article 7(3)(a) of the UK-US Mutual Legal Assistance Treaty. … As stated in our earlier letter, the UK will not provide mutual legal assistance in cases where the death penalty is a likely or possible punishment without a written assurance that the Requesting State would not seek to impose or, if imposed, would not carry out such a penalty. As offences for which the suspects are sought carry the death penalty, we require, as a pre-condition to the provision of the requested assistance, that you provide a written undertaking that the death penalty will not be sought or imposed or, if imposed will not be carried out against anyone found guilty of any criminal offence arising from this investigation and/or UK assistance provided. In any event, the assurance proposed by you in March 2016 would, in our view, allow UK assistance to be used for the purposes of another investigation to obtain other evidence which would not be caught by the assurance and which could lead to the death penalty being imposed and carried out. … The UK wishes to provide the widest measure of assistance in this case but regrets that we will only be in a position to accede to your request if you are able to give the undertakings as requested above.”
“It was the strong (and publicly stated) view of senior members of the new US administration that those states from which [foreign terrorist fighters] had originally come ought to try those individuals. The US position was that other states should not assume that it would take up responsibility for non-US terrorists apprehended in Syria or Iraq. In the aftermath of the capture of El Sheikh in January 2018, set against the wider issues of responsibility for [foreign terrorist fighters] in detention in Syria, US representatives strongly reiterated this message to the UK. The new US administration also had different views on the US military detention facility at Guantanamo Bay. President Trump had been elected on, among other things, a commitment to reverse his predecessor’s decision to close Guantanamo …”
“This was their first conversation and it was regarded as significant that this case was one of the first topics that the US Attorney General raised with the Home Secretary. The US Attorney General indicated that he was concerned that the UK had said that it was not interested in prosecuting El Sheikh; that the death penalty should not be an issue for the UK and that he did not want the UK to tie his hands in relation to the use of the material. The US Attorney General also referred favourably to Guantanamo Bay. The Home Secretary indicated that a formal decision would be taken shortly.”
“Their reaction is likely to be something close to outrage. They already feel that we are dumping on them a problem for which we should take responsibility. They have been signalling to us for weeks now that we are in no position to attach any conditions to this. At best they will think we have tin ears. At worst, they will wind the President up to complain to the PM and, potentially, to hold a grudge. We might argue that the UK position on this is well known and that we were simply behaving in a way consistent with our long-term policy. There might be some understanding of this. But I have to warn that there might also be some damage to the bilateral relationship.” (Emphasis added)
“[The need for a comprehensive assurance that the suspects will not be subject to the death penalty] is critical to the consistency with which we apply HMG’s policy on Overseas Security and Justice Assistance … Were we not to apply this practice to this case, it could undermine all future efforts to secure effective written death penalty assurances from the US authorities for future UK security and justice assistance. The exception made for the US in this case could also undermine future efforts to secure similar assurances from other countries with which we have a security relationship … particularly if as seems likely there is litigation which leads to the disclosure of the level of assurance. It could leave HMG open to accusations of western hypocrisy and double standards which would undermine HMG’s Death Penalty Policy globally, including in the US.”
“Although it clearly runs the risk of creating a precedent for the future and with other countries, taken in the round I am comfortable that proceeding with no assurances is appropriate in securing justice for the families; notwithstanding the fact [that] we understand the families wish to avoid application of the death penalty.”
“It became clear to the Home Secretary during the course of [that] meeting that the position of the US remained unchanged and that there was no prospect of the Attorney General offering any form of undertaking whatsoever. He assessed that, if he asked for assurances (whether full or partial), it was likely to prompt the sort of outrage he had been advised of, and would damage the prospects of a US criminal prosecution. He judged that the question of assurances was critical to whether Attorney General Sessions consented in due course to such a prosecution. Into his calculation about pressing the assurances point during the meeting, he also considered the wider UK government interests at stake, including co-operation on security issues and potential damage to the bilateral relationship.”
“A successful prosecution will serve as a deterrent to others and give the public confidence in our ability to see justice served. However, there are wider national security risks if the prosecution results in execution as this could be used by radicalisers in the UK.”
“States parties that abolished the death penalty cannot deport, extradite or otherwise transfer persons to a country in which they are facing criminal charges that carry the death penalty, unless credible and effective assurances against the imposition of the death penalty have been obtained.”
“No one may be removed, expelled or extradited to a state where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment”
“The common law, though not to be found in the written records of the realm, yet has been long well known. It is coeval with civilised society itself, and was formed from time to time by the wisdom of man. Good sense did not come with the Conquest, or at any other one time, but grew and increased from time to time with the wisdom of mankind.”
“We have long ceased to give credence to the fiction that the common law consists of a number of preordained rules which merely require discovery and judicial enunciation. Two centuries ago Lord Kenyon recognised that in being formed from time to time by the wisdom of man it grew and increased from time to time with the wisdom of mankind: R v Rusby … Sir Frederick Pollock referred in 1890 in his Oxford Lectures, p 111 to the ‘freshly growing fabric of the common law’ and McCardie J spoke in Prager v Blatspiel, Stamp and Heacock Ltd[1924] 1 KB 566 , 570 of the demand of an expanding society for an expanding common law. Similarly, in the US Supreme Court 121 years ago Matthews J said in Hurtado v California (1884) 110 US 516, 531 that: ‘as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experiences of our own situation and system will mould and shape it into new and not less useful forms.’ As Peter du Ponceau said of the common law (A Dissertation on the Nature and Extent of the Jurisdiction of the Courts (1824), Preface): ‘Its bounds are unknown; it varies with the successions of ages, and takes its colour from the spirit of the times, the learning of the age, and the temper and disposition of the judges. It has experienced great changes at different periods, and is destined to experience more. It is by its very nature uncertain and fluctuating; while to vulgar eyes it appears fixed and stationary.’” ‘as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experiences of our own situation and system will mould and shape it into new and not less useful forms.’ ‘Its bounds are unknown; it varies with the successions of ages, and takes its colour from the spirit of the times, the learning of the age, and the temper and disposition of the judges. It has experienced great changes at different periods, and is destined to experience more. It is by its very nature uncertain and fluctuating; while to vulgar eyes it appears fixed and stationary.’”
“115. The court takes as its starting point the nature of the right not to be subjected to the death penalty. Judicial execution involves the deliberate and premeditated destruction of a human being by the state authorities. Whatever the method of execution, the extinction of life involves some physical pain. In addition, the foreknowledge of death at the hands of the state must inevitably give rise to intense psychological suffering. The fact that the imposition and use of the death penalty negates fundamental human rights has been recognised by the member states of the Council of Europe. In the preamble to Protocol No 13 the Contracting States describe themselves as ‘convinced that everyone’s right to life is a basic value in a democratic society and that the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings’. 116. Sixty years ago, when the Convention was drafted, the death penalty was not considered to violate international standards. An exception was therefore included to the right to life, so that article 2(1) provides that ‘No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law’. However, as recorded in the explanatory report to Protocol No 13, there has subsequently been an evolution towards the complete de facto and de jure abolition of the death penalty within the member states of the Council of Europe. Protocol No 6 to the Convention, which abolishes the death penalty except in respect of ‘acts committed in time of war or of imminent threat of war’, was opened for signature on April 28, 1983 and came into force on March 1, 1985. Following the opening for signature of Protocol No 6, the Parliamentary Assembly of the Council of Europe established a practice whereby it required states wishing to join the Council of Europe to undertake to apply an immediate moratorium on executions, to delete the death penalty from their national legislation and to sign and ratify Protocol No 6. All the member states of the Council of Europe have now signed Protocol No 6 and all save Russia have ratified it. 117. In October 1997 the Council of Europe Heads of State and Government called for the ‘universal abolition of the death penalty’. Resolution II adopted at the European Ministerial Conference on Human Rights on3 November 2000 invited the Committee of Ministers ‘to consider the feasibility of a new additional protocol to the Convention which would exclude the possibility of maintaining the death penalty in respect of acts committed in time of war or of imminent threat of war’. Protocol No 13, which abolishes the death penalty in all circumstances, was opened for signature on May 3, 2002 and entered into force on July 1, 2003. At the date of adoption of the present judgment, Protocol No 13 has been ratified by 42 member states and signed but not ratified by a further three. Azerbaijan and Russia are alone in not having signed the Protocol. It was signed by the United Kingdom on May 3, 2002, ratified on October 10, 2003 and entered into force in respect of that State on February 1, 2004. 118. The court considers that, in respect of those states which are bound by it, the right under article 1 of Protocol No 13 not to be subjected to the death penalty, which admits of no derogation and applies in all circumstances, ranks along with the rights in articles 2 and 3 as a fundamental right, enshrining one of the basic values of the democratic societies making up the Council of Europe. As such, its provisions must be strictly construed.”
“25. A state’s jurisdictional competence under article 1 is primarily territorial. However, the court has recognised two principal exceptions to this principle, namely circumstances of ‘state agent authority and control’ and ‘effective control’ over an area (see Al-Skeini v United Kingdom(2011) 53 EHRR 18 , paras 130-141). In the present case, where the applicant has returned voluntarily to Pakistan, neither of the two principal exceptions to territorial jurisdiction apply. This is particularly so when he does not complain about the acts of British diplomatic and consular agents in Pakistan and when he remains free to go about his life in the country without any control by agents of the United Kingdom. He is in a different position, both to the applicants in Al-Saadoon (who were in British detention in Iraq and thus, until their handover to the Iraqi authorities, were under British authority and control) and to the individuals in Al-Skeini (who had been killed in the course of security operations conduct by British soldiers in South East Iraq). 26. Moreover, and contrary to the applicant’s submission, there is no principled reason to distinguish between, on the one hand, someone who was in the jurisdiction of a Contracting State but voluntarily left that jurisdiction and, on the other, someone who was never in the jurisdiction of that state. Nor is there any support in the court’s case law for the applicant’s argument that the state’s obligations under article 3 require it to take this article into account when making adverse decisions against individuals, even when those individuals are not within its jurisdiction.”
“It is the longstanding policy of the UK to oppose the death penalty in all circumstances as a matter of principle. Its strategy and policy in relation to the death penalty is set out in the HMG Strategy on Global Abolition of the Death Penalty:11 October 2010 . The strategy confirms that the goals of the UK government are to increase the number of abolitionist countries or countries where a moratorium exists on the use of the death penalty; to seek further restrictions on the use of the death penalty in countries where it is used and a reduction in the number of executions; and to ensure that EU minimum standards are met in countries which retain the death penalty.” (Emphasis added)
“The death penalty is (in my view) rightly regarded by the government as immoral and unacceptable.”
“I require no persuading that the common law can act to protect human rights quite independently of theHuman Rights Act 1998 . However, the extent of such protection and the relationship of the common law to the statutory rights conferred by the Human Rights Act require careful consideration. For example, beyond the established categories of case where a duty of care is imposed, there is no general, common law duty on Her Majesty’s Government to take positive steps to protect an individual’s life from the actions of a third party. Moreover, the common law has shown a reluctance to remedy apparent lacunae in the ECHR regime.”
“Miss Lieven came to accept in her oral submissions that the essence of her case on the common law in this context was that the importance the common law attaches to fundamental rights means that they have to be given very considerable weight in any decision-making process where they are in play. She accepted that that would not mean that a decision refusing to impose a ban on the export of the drug to the United States would necessarily be unlawful. However, the standards which the court would apply to such a decision would be intensified and an increased level of justification would be required.”
“On the European and World Day against the Death Penalty, the Council of Europe and the European Union (EU) reiterate their strong opposition to capital punishment in all circumstances and for all cases. The death penalty is an affront to human dignity. It constitutes cruel, inhuman and degrading treatment and is contrary to the right to life. The death penalty has no established deterrent effect and it makes judicial errors irreversible … Member states should continue taking effective measures to prevent their involvement, however indirect, in the use of the death penalty by third countries, such as by adopting measures that prevent the trade in goods that could subsequently be used to carry out executions …”
“(1) Article 11(1)(b) of the EU-Japan MLA agreement makes it clear that member states may provide mutual legal assistance in connection with ‘an offence punishable by death under the laws of the requesting state’ if ‘the requested state and the requesting state agree on the conditions under which the request can be executed’. In other words, it permits member states to make the provision of MLA conditional upon exactly the sort of death penalty assurance which the appellant submits the Home Secretary was required to obtain in this case. Nothing in the EU-Japan MLA agreement qualifies or detracts from the EU’s longstanding and consistent stance of absolute opposition to the death penalty in all circumstances. (2) The suggestion that the EU-Japan agreement demonstrates that EU law is not absolutely opposed to the death penalty is also inconsistent with: (a) The travaux preparatoires of the agreement, which record that the EU’s specific objective in negotiating the agreement was to ‘allow for effective mutual legal assistance but at the same time ensure that evidence transmitted by a member state, could in no circumstances be used to impose a death sentence’ (b) the European Parliament’s resolution of16 February 2012 on the death penalty in Japan; and (c) the statement of the European Union Delegation to Japan and the Heads of Mission of EU member states dated6 July 2018 , which stated that the European Union is ‘strongly and unequivocally opposed to the use of capital punishment under all circumstances and we aim at its universal abolition’ and which called on the Japanese Government to abolish capital punishment.” (a) The travaux preparatoires of the agreement, which record that the EU’s specific objective in negotiating the agreement was to ‘allow for effective mutual legal assistance but at the same time ensure that evidence transmitted by a member state, could in no circumstances be used to impose a death sentence’ (b) the European Parliament’s resolution of16 February 2012 on the death penalty in Japan; and (c) the statement of the European Union Delegation to Japan and the Heads of Mission of EU member states dated6 July 2018 , which stated that the European Union is ‘strongly and unequivocally opposed to the use of capital punishment under all circumstances and we aim at its universal abolition’ and which called on the Japanese Government to abolish capital punishment.”
“The aim of a possible agreement between the European Union and Japan on mutual legal assistance would be to enhance and facilitate mutual legal assistance between Japan on the one hand and the 27 member states of the EU on the other hand based, while safeguarding fundamental rights and guaranteeing that the death penalty could not be imposed on the basis of evidence submitted by the EU member states. … it has been made clear to Japan that the issue of death penalty/life imprisonment is of crucial importance to the EU. It appears that a satisfactory solution to this issue could be found in the negotiations.”
“There is undoubtedly support in international jurisprudence for the contention that prolonged delay in carrying out a sentence of death may be unlawful. For example, in Pratt v Attorney General of Jamaica[1994] 2 AC 1 , the Privy Council held that section 17(2) of the Jamaican Constitution authorised the death penalty but that did not prevent the court investigating the circumstances in which the executive intended to carry out the sentence. It held that execution should take place as soon as reasonably practicable after sentence; to carry out executions after a delay of 14 years would constitute inhuman punishment contrary to section 17(1) of the Constitution. But that case turned on the construction of the Jamaican Constitution. It did not establish a rule of the common law, either in Jamaica or generally, that particular periods of delay made the enforcement of the death penalty unlawful.”
“There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. What gives rise to this instinctive revulsion? The answer can only be our humanity; we regard it as an inhuman act to keep a man facing the agony of execution over a long extended period of time.”
“Our ambition remains a world free of capital punishment and torture …” and that: “[we] oppose the death penalty in all circumstances as a matter of principle, because we consider that its use undermines human dignity, that there is no conclusive evidence of its deterrent value, and that any miscarriage of justice leading to its imposition is irreversible and irreparable.” (Human Rights and Democracy: The 2014 Foreign & Commonwealth Office Report, dated12 March 2015 , Executive Summary, and Human Rights and Democracy: The 2017 Foreign and Commonwealth Report, updated5 October 2018 , chapter 1.) 3. ECHR jurisprudence. Although it does not arise directly in this case because of jurisdictional restrictions, it can and should inform the development of the common law - see paras 107-124 above. Moreover, the UK’s ratification of the Thirteenth Protocol is an unequivocal statement of this country’s stance on the death penalty. Developments in international human rights law are significant pointers to the interpretation of the common law. As Lord Hoffmann said in R v Lyons[2002] UKHL 44 ;[2003] 1 AC 976 , para 27, “there is a strong presumption in favour of interpreting English law (whether common law or statute) in a way which does not place the United Kingdom in breach of an international obligation”
“(3) Condition 2 is that the transfer - (a) is based on an adequacy decision (see section 74), (b) if not based on an adequacy decision, is based on there being appropriate safeguards (see section 75), or (c) if not based on an adequacy decision or on there being appropriate safeguards, is based on special circumstances (see section 76).” (a) is based on an adequacy decision (see section 74), (b) if not based on an adequacy decision, is based on there being appropriate safeguards (see section 75), or (c) if not based on an adequacy decision or on there being appropriate safeguards, is based on special circumstances (see section 76).”
“(1) A transfer of personal data to a third country or international organisation is based on special circumstances where the transfer is necessary - (a) to protect the vital interests of the data subject or another person, (b) to safeguard the legitimate interests of the data subject, (c) for the prevention of an immediate and serious threat to the public security of a member state or a third country, (d) in individual cases for any of the law enforcement purposes, or (e) in individual cases for a legal purpose.” (a) to protect the vital interests of the data subject or another person, (b) to safeguard the legitimate interests of the data subject, (c) for the prevention of an immediate and serious threat to the public security of a member state or a third country, (d) in individual cases for any of the law enforcement purposes, or (e) in individual cases for a legal purpose.”
“Within those limitations the court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual’s right to life and when an administrative decision under challenge is said to be one which may put the applicant’s life at risk, the basis of the decision must surely call for the most anxious scrutiny.”
“In my opinion where the result of a flawed decision may imperil life or liberty a special responsibility lies on the court in the examination of the decision-making process.”
“[I]t is important that I should state very clearly, as the judge did, that this is a case involving the life of a young patient and that that is a fact which must dominate all considerations of all aspects of the case. Our society is one in which a very high value is put on human life. No decision affecting human life is one that can be regarded with other than the greatest seriousness.”
“‘Irrationality’ is a high threshold, but it may be easier than otherwise to surmount in a case involving an imminent risk of death by execution of a British citizen deprived of financial support abroad. The court’s role is given added weight in a context where the right to life is at stake (see Rv Secretary of State for the Home Department, Ex p Bugdaycay[1987] AC 514 ). A keen scrutiny of the policy and its application must on any view be required in such circumstances.”
“The UK’s aim is for these individuals to face justice in the most appropriate jurisdiction which maximises our collective chances of a successful prosecution. To this end the (operationally independent) Counter Terrorism Command of the Metropolitan Police (S015) and Crown Prosecution Service (CPS), have been engaged in a dispassionate assessment of the evidence available and likelihood of prosecution in the UK. In parallel our investigators have also been working with the FBI to explore the likelihood of prosecution in the US or other jurisdictions … Regretfully, as a result of this process, the CPS have determined there is insufficient evidence to prosecute Shafee El-Sheikh in the UK … Ensuring foreign fighters face justice raises a real challenge for all our jurisdictions, however in this instance we believe a successful federal prosecution in US is more likely to be possible because of differences in your statute book and the restrictions on challenges to the route by which defendants appear in US courts. The US currently has additional charges for terrorism offences which are not available under UK criminal law, and those offences carry long sentences. We are therefore committed to assisting the US with a federal prosecution of Alexanda Kotey and Shafee El-Sheikh, and after careful consideration I have decided to accede to your current request for mutual legal assistance which is with the UK Central Authority.”
“The second issue was the prospect that the US might transfer El Sheikh to Guantanamo Bay … The UK has consistently and publicly opposed Guantanamo Bay; and considers that it is a radicalising factor in the UK … It was the Home Secretary’s assessment in his meeting with the US Attorney General that to press for an assurance would be to imperil the prospect of prosecution (and instead pave the way for a transfer to Guantanamo).”
“States parties that abolished the death penalty cannot deport, extradite or otherwise transfer persons to a country in which they are facing criminal charges that carry the death penalty, unless credible and effective assurances against the imposition of the death penalty have been obtained.”
“as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experiences of our own situation and system will mould and shape it into new and not less useful forms.”
“has sought … a written assurance, or written assurances, relating to the non-use of information obtained by virtue of the agreement in connection with proceedings for a death penalty offence in the country or territory.”
“We agree with the majority that national security considerations could not be invoked to justify ill-treatment at the hands of a Contracting State within its own jurisdiction, and that in that sense the protection afforded by article 3 is absolute in character. But in our view the situation is different where, as in the present case, only the extra-territorial (or indirect) application of the article 3 is at stake. There, a Contracting State which is contemplating the removal of someone from its jurisdiction to that of another state may legitimately strike a fair balance between, on the one hand, the nature of the threat to its national security interests if the person concerned were to remain and, on the other, the extent of the potential risk of ill-treatment of that person in the state of destination …”
“10.6 For these reasons, the Committee considers that Canada, as a state party which has abolished the death penalty … violated the author’s right to life under article 6, para 1, by deporting him to the United States, where he is under sentence of death, without ensuring that the death penalty would not be carried out. The Committee recognizes that Canada did not itself impose the death penalty on the author. But by deporting him to a country where he was under sentence of death, Canada established the crucial link in the causal chain that would make possible the execution of the author.”
“the transfer - (a) is based on an adequacy decision (see section 74), (b) if not based on an adequacy decision, is based on there being appropriate safeguards (see section 75), or (c) if not based on an adequacy decision or on there being appropriate safeguards, is based on special circumstances (see section 76).” (a) is based on an adequacy decision (see section 74), (b) if not based on an adequacy decision, is based on there being appropriate safeguards (see section 75), or (c) if not based on an adequacy decision or on there being appropriate safeguards, is based on special circumstances (see section 76).”
“Transfers not based on such an adequacy decision should be allowed only where appropriate safeguards have been provided in a legally binding instrument which ensures the protection of personal data or where the controller has assessed all the circumstances surrounding the data transfer and, on the basis of that assessment, considers that appropriate safeguards with regard to the protection of personal data exist … In addition, the controller should take into account that the personal data will not be used to request, hand down or execute a death penalty or any form of cruel and inhuman treatment …” (Emphasis added)
“What matters is whether, in substance, appropriate safeguards for the protection of the data existed; whether, in other words, the decision proceeded in circumstances where there were appropriate safeguards in place.”
“in fact, that was central to the assessment”
“necessary - (a) to protect the vital interests of the data subject or another person, (b) to safeguard the legitimate interests of the data subject, (c) for the prevention of an immediate and serious threat to the public security of a member state or a third country, (d) in individual cases for any of the law enforcement purposes, or (e) in individual cases for a legal purpose.” (a) to protect the vital interests of the data subject or another person, (b) to safeguard the legitimate interests of the data subject, (c) for the prevention of an immediate and serious threat to the public security of a member state or a third country, (d) in individual cases for any of the law enforcement purposes, or (e) in individual cases for a legal purpose.”
“Where no adequacy decision or appropriate safeguards exist, a transfer or a category of transfers could take place only in specific situations, if necessary … [inter alia] in an individual case for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security … Those derogations should be interpreted restrictively and … should be limited to data strictly necessary. Such transfers should be documented and should be made available to the supervisory authority on request in order to monitor the lawfulness of the transfer.” (Emphasis added)
“207. The transfer here was necessary in an ‘individual case for any of the law enforcement purposes’ (section 76(1)(d)) or, alternatively, in an ‘individual case for a legal purpose’: section 76(1)(e). Given the specific nature of the evidence transferred in the present case it cannot be said to fall within the categories of ‘frequent, massive and structural transfers of person data, or large-scale transfers of data’ (which recital (72) suggests would not be permitted under this head). 208. The controller had not determined that the fundamental rights and freedoms of the data subject overrode the public interest in the transfer: section 76(2). Although no specific document was created to meet the requirements of section 76(3) … the details of the transfer were documented by UKCA and the justification for the transfer is reflected in various contemporaneous documents.”
“a. He was extremely mindful of the greater imperative of ensuring the prosecution of these individuals. That must be the highest priority in this instance given their shocking crimes. b. He weighed the decision of seeking assurances against the likelihood of being able to agree them with American counterparts. Again the priority must be to ensure prosecution in the US system, as there was insufficient evidence for prosecution in the UK. c. He also judged that by not assisting the US in bringing this to trial, it ran the risk of the two being moved to Guantanamo. He was aware of the victims’ families’ clear wish for a criminal prosecution to take place. It was his judgment that prosecution was most likely in a US court and therefore this was the best course of action to meet the families’ wishes. d. Lastly he was mindful of the UK’s international obligation to tackle [foreign terrorist fighters]. This course of action was best judged to achieve that commitment. He felt we must send a clear message that people who commit these acts will be brought to justice, and they cannot be allowed back on the streets to radicalise others.”