Nour, R (on the application of) v Secretary of State for Defence & Anor

Assessments under the Overseas Security and Justice Assistance Human Rights Guidance are reviewable, although the court must exercise particular caution where they involve political or reputational judgments. The court should not substitute its own assessment of complex risks or scrutinise guidance as if it were a statute. The appropriate standard is irrationality in the Wednesbury sense, subject to any distinct duty to make sufficient inquiry. A public authority is not required to conduct every further inquiry that might be sensible or desirable. Where the decision-maker has recognised the relevant human rights risks, assessed the proposed assistance and considered mitigation, the court should intervene only if no reasonable decision-maker could have reached the conclusion reached.

The claimant, a Sudanese refugee and former human rights lawyer, sought judicial review of assessments made by the Secretary of State for Defence concerning assistance and training provided or offered to the Sudanese Armed Forces under the Defence Engagement Sudan programme. The challenge principally concerned the third assessment, dated 10 June 2015, which classified the programme as “amber” under the Overseas Security and Justice Assistance Human Rights Guidance.

The claimant argued that the assessment failed to investigate the effects of earlier assistance, irrationally concluded that the proposed courses did not present a serious risk of directly or significantly contributing to human rights or international humanitarian law violations, and reflected an unlawful change of policy. The central issue was whether the assessment could lawfully be challenged and whether any identified defect justified relief.

1. Reviewability and standard of review. The assessment was not wholly non-justiciable. Political and reputational risk involved matters on which the court should be slow to intervene, but the wider assessment remained reviewable. Given the evaluative judgment involved, the number of factors considered and the decision-maker’s greater institutional knowledge, the court would intervene only if the assessment or conclusion was irrational in the Wednesbury sense: [1948] 1 KB 223.
2. Past mitigation and inquiry. Stage 3 of the Guidance required consideration of past steps taken to mitigate identified risks, rather than a retrospective determination of the historical risk created by all earlier training. The defendant was entitled to decide the extent of inquiry required, taking account of the practical difficulty of tracing the careers and later conduct of former participants. No Tameside duty was established on these facts: [1977] AC 1014.
3. Assessment of the courses. It was not irrational to conclude that the short leadership course and the longer defence-management course would not directly or significantly contribute to the identified risks, while recognising inherent indirect and reputational risks. The decision-maker could properly rely on a fuller understanding of the courses and had not ignored the Sudanese Armed Forces’ serious human rights abuses.
4. Overall conclusion and alleged policy change. The amber classification reflected a nuanced assessment of risk and mitigation. The different references to military, offensive and lethal operations did not establish a significant change of policy. Read as a whole, the assessment confined rather than expanded the assistance offered and considered the four-stage process. The claim failed, and judgment was entered for the defendant.