Elgizouli, R. (On Application of) v The Secretary of State for the Home Department

This is an urgent judicial review application seeking to prevent the Secretary of State from providing material to the United States pursuant to a Mutual Legal Assistance (MLA) request. The court considered whether the transfer was compatible with Part 3 of the Data Protection Act 2018 (in particular the first and second data protection principles in ss.35 and 36 and the international transfer rules in s.73) and whether the Secretary of State's decision was irrational.

The court held that the DPA and the Law Enforcement Directive require necessity and proportionality to be assessed with reference to the specific law‑enforcement task for which the processing is to be carried out. In this case the relevant task was the investigation and prosecution by United States authorities; on the material before the Secretary of State disclosure was strictly necessary and proportionate because the United States could prosecute with the material and could not prosecute without it. The Supreme Court's earlier ruling that an earlier disclosure had breached Part 3 of the DPA was noted, but the present decision was taken after detailed consideration of DPA issues and in the light of a United States death‑penalty assurance.

The court also rejected the contention that it was irrational to provide MLA while a possible domestic prosecution might arise. The Secretary of State had considered the possibility of a UK prosecution, the urgency and the terms of the US assurance, and there was no legal bar under the MLA treaty to acceding to the request. Permission to bring judicial review was refused as the claim was not properly arguable.

Background and parties: The claimant is the mother of Shafee El Sheikh, who was the subject of an MLA request from the United States concerning alleged terrorist offences committed in Syria. His British citizenship had previously been revoked. The claimant sought urgent permission to judicially review the Secretary of State's decision of 24 August 2020 to provide material to the United States.

Procedural posture: The claim was listed urgently as a rolled‑up hearing (permission first, full review if permission granted). The court heard full argument on 11 September 2020. The judgment records substantial prior litigation: an earlier Divisional Court decision and a Supreme Court decision (Elgizouli v SSHD [2020] UKSC 10) which had held an earlier 2018 disclosure unlawful under Part 3 of the DPA.

Nature of the application: The claimant sought permission for judicial review challenging the Secretary of State's decision to transfer material to the US pursuant to an MLA request. Relief sought was to prevent onward disclosure. The main legal issues framed by the court were (i) compatibility of the decision with the Data Protection Act 2018 (Part 3) — in particular the necessity/strict necessity and proportionality requirements and s.73 governing international transfers — and (ii) whether the decision was irrational.

Key facts: The United States made an MLA request in 2015. On 18 August 2020 the US Attorney General provided an assurance that the United States would not seek or carry out the death penalty in prosecutions of El Sheikh and a co‑accused. On 24 August 2020 the UK Central Authority submitted detailed advice to the Secretary of State and she decided to accede to the request subject to use limitations. On 26 August 2020 the Supreme Court issued a declaration that the 2018 decision had been unlawful but lifted the stay on further transmissions. On 27 August 2020 the Crown Prosecution Service decided there was sufficient evidence to prosecute Mr El Sheikh in the UK and applied to the Attorney General for consent; that process was ongoing.

Court’s reasoning: The court explained that the LED and Part 3 of the DPA require the data controller to assess necessity and proportionality by reference to the specific law‑enforcement purpose for which the processing is proposed. Where the purpose is to assist a US investigation and prosecution, the appropriate questions are whether transfer is necessary and proportionate for that particular task. The Secretary of State and her advisers had separately and expressly considered the DPA requirements and the MLA obligations. The annex to the UK Central Authority submission addressed strict necessity and concluded that transfer was strictly necessary for the US prosecution, that appropriate safeguards existed (or alternatively that the special‑circumstances gateway applied), and that the death‑penalty assurance significantly reduced human rights concerns. The court found no irrationality: the Secretary of State had considered the possibility of a UK prosecution, the terms of the US assurance, treaty obligations and the urgency identified by the US, and there was no lawful principle requiring refusal of MLA merely because a domestic prosecution might be possible.

Outcome: The court refused permission to apply for judicial review, concluding the challenge was not properly arguable. The prior interim order restraining transfer expired on the handing down of the judgment.

Permission to apply for judicial review was refused. The court held that (i) the Secretary of State lawfully applied the Data Protection Act 2018 and the Law Enforcement Directive by assessing necessity and proportionality with reference to the specified law‑enforcement task (the proposed US investigation and prosecution), and (ii) the decision to accede to the MLA request (subject to conditions and in the light of the US death‑penalty assurance) was not irrational.

The judgment records prior litigation: an earlier Divisional Court judgment reported at [2019] EWHC 60 (Admin) and an appeal to the Supreme Court in Elgizouli v SSHD [2020] UKSC 10 (which held that the 22 June 2018 decision was unlawful under Part 3 of the Data Protection Act 2018).