Fawwaz v Secretary of State for the Home Department

The Secretary of State is generally entitled to assume that a requesting state will provide a fair trial and is not required to assess whether requested evidence is essential to fairness. Where mutual legal assistance is refused on national security grounds, national security is not a factor to be balanced against the accused’s fair-trial interests as in a domestic public interest immunity exercise.

The decision is reviewed on Wednesbury principles, with substantial weight given to the executive’s assessment of national security. A policy of neither confirming nor denying the nature of intelligence material may lawfully be maintained, including where the individual claims to have self-reported the relationship. Delay is unlawful only where, on the facts, it becomes unreasonable or amounts to an abdication of the decision-maker’s functions.

The claimant was being tried in New York on terrorism-related conspiracy charges. A United States district judge issued Letters Rogatory seeking intelligence material allegedly held by MI5, including documents, surveillance and intercept material, and testimony from alleged or former MI5 officers.

The Secretary of State, acting through the United Kingdom Central Authority, refused the requests on national security grounds, while maintaining neither confirm nor deny in relation to the nature and scope of the material. The claimant sought judicial review, arguing that the Secretary of State had failed to consider fair-trial implications, available closed procedures, legitimate expectation, the lawfulness of NCND, and delay.

1. The claim was dismissed. The refusal to accede to the Letters Rogatory, the continuing reliance on NCND, and the handling of the requests were lawful.
2. The court held that the Secretary of State was not required to assess whether the requested evidence was necessary for a fair trial. The mutual legal assistance scheme assumes that requests are ordinarily dealt with expeditiously as a matter of comity. Questions of trial fairness fall primarily to the court conducting the criminal proceedings. The Secretary of State could proceed on the assumption that the United States would provide a fair trial.
3. In a refusal based specifically on national security, the Secretary of State was not required to balance national security against fair-trial considerations. The statutory scheme gives national security primacy and is materially different from a domestic public interest immunity exercise. The reasoning in R (Omar) v Foreign Secretary [2014] QB 112 applied.
4. The decision was reviewable on Wednesbury standards. The court accorded great weight to the executive’s assessment, having regard to its constitutional responsibility and access to intelligence expertise. The Secretary of State was entitled to insist on the protection offered by the United States Classified Information Procedures Act and to conclude that alternative undertakings or confidentiality arrangements were inadequate. The age of the material did not determine whether disclosure would cause harm.
5. NCND was a protective practice rather than a rule of law. Its application required individual consideration, but self-reporting, public discussion, or confirmation in another case did not make its continued use irrational here. The court declined to express further views on the material’s relevance or the reasons for refusal.
6. The requests were handled with reasonable expedition, considering their novelty, complexity and the timetable of the New York trial. No public-law remedy arose from delay.