R (El Gizouli) v Secretary of State for the Home Department

The Divisional Court considered whether the Home Secretary lawfully authorised mutual legal assistance (MLA) to the United States in a terrorism investigation potentially exposing the suspects to the death penalty, without obtaining an assurance that the death penalty would not be sought. The court accepted that provision of the UK-held material would facilitate a US prosecution that could expose the suspects to capital punishment, but rejected the claimant’s contention that the common law, customary international law, or the European Convention on Human Rights (applied via the common law) imposes a prohibition on providing MLA in such circumstances.

The court held that the principle of legality (as a rule of statutory interpretation) does not apply to the exercise of prerogative powers and that development of the common law cannot be used to circumvent the limits and jurisdictional reach of the Human Rights Act 1998. It rejected the argument that international law (including article 16 UNCAT) or the manner of execution in the United States renders the death penalty per se unlawful or requires refusal of MLA. The court also dismissed challenges alleging procedural or substantive irrationality and refusals to follow domestic policy on seeking assurances, and it rejected ECHR-based claims by the claimant (the mother) under articles 3 and 8. Finally, the court found no unlawfulness under the Data Protection Act 2018 in the transfers in issue, concluding that the statutory gateways for international transfers (including special circumstances) applied and that no Charter-based limitation prevented the transfers.

Background and parties. The claimant, mother of Shafee El Sheikh (alleged member of a group accused of barbaric terrorist acts in Syria), applied for judicial review of the Home Secretary's decision to accede to a United States request for mutual legal assistance (MLA) in June 2018 without requiring an assurance that the death penalty would not be sought. The material held by the UK police and other agencies had previously been the subject of a request for an assurance and of partial undertakings. The Home Secretary decided, after ministerial and official consideration, that in the unique circumstances it was in the national security and justice interests of the United Kingdom to provide material without a full death-penalty assurance.

Nature of the claim and relief sought. The claimant sought judicial review challenging that decision on five grounds: (1) illegality — that providing MLA without an assurance unlawfully facilitated or substantially contributed to the imposition of a cruel, inhuman or degrading punishment and thus offended the common law, rule of law and international law; (2) specific errors of law and fact in the Secretary of State's decision and failure to have proper regard to relevant considerations; (3) inconsistency with UK policy opposing the death penalty in all circumstances and the absence of lawful basis for a discretionary exception; (4) violation of the claimant's Convention rights under articles 3 and 8 ECHR; and (5) breach of the Data Protection Act 2018 in relation to transfers of personal data to the United States.

Issues for decision. The court framed the principal issues as: whether domestic law (including any developed common law principle) or customary international law forbade the provision of MLA that might facilitate imposition of the death penalty; whether the Home Secretary’s reasoning and weightings were unlawful or irrational; whether the claimant’s own Convention rights were engaged and breached; and whether transfers of personal data complied with the Data Protection Act 2018 and any applicable EU law or Charter obligation.

Court’s reasoning (concise account). The court analysed the legal nature of the decision (exercise of the royal prerogative in foreign affairs), emphasised judicial restraint in that field, and held that the principle of legality (a technique of statutory interpretation protecting fundamental rights) does not apply to prerogative decisions. It rejected the claimant’s attempt to expand the common law to create a free-standing duty preventing the UK from providing MLA likely to facilitate capital punishment abroad, noting limits imposed by Parliament’s incorporation of the ECHR via the Human Rights Act 1998 and existing case-law restricting extraterritorial reach. The court found no basis in customary international law or UNCAT to treat the US death penalty regime as per se unlawful or to prohibit MLA. On alleged errors of law or irrationality, the court found that ministers and officials had weighed relevant considerations (including the risk of transfer to Guantanamo, political reactions and national security interests), that taking account of likely foreign reactions was legitimate, and that the decision fell within lawful discretionary bounds. The claimant’s article 3 and 8 ECHR claims failed because her son was outside the United Kingdom’s ECHR jurisdiction and she did not establish the special factors needed to claim to be a victim. On data protection, the court held that Part 3 of the Data Protection Act 2018 applied, that the transfer was for law enforcement purposes, and that the statutory gateways (appropriate safeguards or special circumstances) justified the transfers; it concluded the Charter did not apply to the transfers in issue given the UK's opt-out and that, in any event, no absolute prohibition under the LED or Charter was identified that would invalidate the transfers.

Procedural note. The court granted permission to apply for judicial review but dismissed the claim at the rolled-up hearing.

The claim for judicial review is dismissed. The court held that (i) the Home Secretary lawfully exercised prerogative powers in providing MLA to the United States without a full death-penalty assurance; (ii) neither the common law, customary international law nor ECHR-derived principles required refusal of MLA in these circumstances; (iii) the Home Secretary’s consideration of the relevant factors (including potential US reaction and national security implications) was lawful and not irrational; (iv) the claimant’s article 3 and 8 ECHR arguments fail because her son is outside the Convention jurisdiction and no special factors gave her a separate Convention victim status; and (v) transfers of personal data complied with the Data Protection Act 2018 (the relevant statutory transfer gateways applied) and no Charter-based prohibition required a different outcome.