El Gizouli, R (On the Application Of) v The Secretary of State for the Home Department

The exercise of a prerogative power to provide mutual legal assistance is reviewable, but the principle of legality is a principle of statutory interpretation and does not govern an exercise of prerogative power. In the absence of a hard-edged legal prohibition, the decision-maker must have regard to relevant considerations and reach a rational conclusion.

The common law does not impose a general duty requiring the Government to obtain death-penalty assurances before providing assistance to a foreign state. The court should not extend ECHR-based principles beyond their statutory and territorial limits, particularly in the conduct of foreign affairs.

The claimant, the mother of a British national detained by Kurdish forces in Syria, challenged the Home Secretary’s decision to provide mutual legal assistance to the United States for a federal criminal investigation and possible prosecution without seeking an assurance that the death penalty would not be sought or imposed.

She alleged illegality, errors of public law, inconsistency with Government policy, breach of her rights under articles 3 and 8 ECHR, and breach of the Data Protection Act 2018. The central issues were whether the common law or international law prohibited the assistance, whether the decision was irrational or failed to take account of relevant matters, and whether the data-protection regime prevented the transfer.

1. Disposition. Permission to apply for judicial review was granted, but the claim was dismissed. Each ground of challenge to the decision and to the transfer of material was rejected.
2. Prerogative and legality. The decision involved the exercise of a prerogative power in the conduct of foreign affairs. The principle of legality is a rule of statutory construction. It did not apply to the exercise of the prerogative. No common-law rule prohibited mutual legal assistance where the foreign proceedings might result in the death penalty.
3. Common law and Convention principles. The court declined to extend the non-facilitation principle in Soering v UK and Al-Saadoon v United Kingdom to assistance given for a person outside ECHR jurisdiction. The Human Rights Act 1998 incorporated the Convention with its territorial limits. The common law could not be developed to circumvent those limits. Nor was there a general common-law duty to take positive steps, including requiring undertakings, to protect an individual from a third party’s actions.
4. International law. The death penalty was not shown to be prohibited per se by customary international law. Nor was the United States’ lethal-injection regime shown to violate international law. No international rule was identified that prohibited mutual legal assistance in proceedings in which the death penalty might be imposed.
5. Public-law review. The Home Secretary was entitled to consider the likely political reaction of the United States, the risk of transfer to Guantanamo Bay, the prospect of prosecution, national-security interests, the United Kingdom’s death-penalty policy, and the available evidence concerning execution methods. The policy permitted exceptions where no assurance was obtained and required the circumstances to be evaluated. The decision was rational and the relevant matters had been considered.
6. Convention rights. The claimant’s son was outside ECHR jurisdiction. The claimant therefore could not establish that the decision constituted ill-treatment of him for the purposes of her own article 3 claim. The special factors required for a relative’s independent victim status were absent. There was also no sufficiently direct and immediate link with her private or family life for article 8.
7. Data protection. The transfer was lawful, necessary and proportionate for law-enforcement purposes. Part 3 of the Data Protection Act 2018 did not impose an absolute prohibition on transferring personal data for a prosecution that might lead to the death penalty. The EU Charter did not apply because the transfer was outside the scope of EU law. Any technical failures in notification or documentation did not justify substantive relief.

This was a first-instance judicial review claim heard by a Divisional Court of the High Court. Permission was granted at the hearing, but the claim was dismissed.