Akarcay, R (on the application of) v West Yorkshire Police & Ors

Unincorporated treaties do not create enforceable domestic-law duties. Customary international law does not automatically become part of the common law where doing so would intrude upon the constitutional allocation of responsibility for foreign affairs. Recognition of a foreign state is principally for the executive.

Routine police-to-police cooperation with an unrecognised entity does not, without more, amount to recognition. Confidential material held by the police may be disclosed where a sufficiently strong countervailing public interest exists. The statutory mutual-assistance scheme is supplementary to informal cooperation. A person outside the United Kingdom’s territorial jurisdiction cannot ordinarily invoke the ECHR against such cooperation, and speculative evidence will not establish a real risk of a flagrant denial of justice or article 3 ill-treatment.

The claimant sought judicial review of West Yorkshire Police’s disclosure of investigation material to law-enforcement authorities in Northern Cyprus, where he faced prosecution for alleged drug-trafficking and money-laundering offences committed in England.

He argued that the disclosure recognised Northern Cyprus contrary to international and domestic law, that assistance could be provided only under the Crime (International Co-operation) Act 2003, and that disclosure exposed him to violations of articles 3 and 6 ECHR. The Divisional Court considered the non-recognition and mutual-assistance grounds and refused permission on the human-rights ground.

1. Non-recognition. The Treaty of Guarantee 1960 had not been incorporated into domestic law. Security Council resolutions did not themselves create a domestic duty, and no Order in Council under the United Nations Act 1946 had been relied upon. The principle in JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry therefore applied.
2. Even if customary international law required non-recognition, it would not automatically form part of the common law. Recognition of a state or government is an intensely political act within the executive’s constitutional competence. There was consequently no domestic-law duty of the kind alleged. The court also held that the police cooperation in question could not amount to implied recognition.
3. Mutual legal assistance. The Crime (International Co-operation) Act 2003 regulates formal requests and coercive assistance. Its scheme is not a complete code and does not exclude informal cooperation. Following Woolgar v Chief Constable of Sussex, confidential police material may be disclosed where a sufficiently strong countervailing public interest exists. Cooperation with foreign law-enforcement agencies to facilitate prosecution of serious crime supplied that interest here. The Home Office guidance was therefore correct, and the material was not unlawful merely because it was supplied to a foreign entity.
4. Human rights. Permission was refused on the proposed articles 3 and 6 ground. The claimant was outside United Kingdom jurisdiction for article 1 purposes. In any event, the evidence did not establish either a real risk of a flagrant denial of justice or substantial grounds for believing that future detention conditions would breach article 3.
5. The judicial-review claim was dismissed.