The Minister of State for Security and Economic Crime, Brandon Lewis, made a written statement in the House of Commons on Monday 21 October in which he set out the position of evidence obtained form UK telecommunications companies in respect of US prosecutions where the death penalty is an available sentence.
The Crime (Overseas Production Orders) Act 2019 grants law enforcement agencies and prosecuting authorities the power to apply for and obtain electronic data directly from service providers for the purposes of criminal investigations and prosecutions. The orders are only available when permitted under and international co-operation arrangement between the UK and the country where the subject of the order is located. The UK/US agreement was signed on 3 October and “removes any legal prohibitions which would otherwise prevent communications service providers in each from complying with lawful orders for the production of electronic communications from the other.”
During the passage of the 2019 Act through the House of Commons, concerns had been raised in relation to US use of UK data in death penalty cases. The Minister’s statement confirms that a binding position with the US has been agreed, in the body of the Agreement, which prevents the use of material obtained from a UK telecommunications operator in these cases save for where express prior consent has been sought from the UK. This position, it was said in the statement, allows for decisions to be made by Ministers on a case by case basis, continuing the current legal practice under Mutual Legal Assistance.
The Minister reiterated that it is the Government’s position to continue to oppose the death penalty in all cases.