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

For an international transfer of personal data for law-enforcement purposes, necessity and proportionality are assessed by reference to the specified task for which the transfer is made, not a general objective such as securing a prosecution wherever possible. A transfer supporting an identified foreign investigation or prosecution may therefore be strictly necessary where the requesting authorities cannot proceed without the data and intend to proceed if it is supplied.

The possibility of a domestic prosecution does not itself bar mutual legal assistance or require the Secretary of State to delay a response until domestic prosecuting authorities have decided whether to charge. The Secretary of State may rely on an unequivocal assurance from the requesting state, and speculative predictions about future prosecutorial decisions do not establish irrationality.

The claimant sought urgent permission to bring judicial review proceedings against the Secretary of State’s decision of 24 August 2020 to provide material to the United States pursuant to a mutual legal assistance request concerning her son, Shafee El Sheikh.

The challenge relied on the Data Protection Act 2018 and irrationality. The issue arose against the background of earlier litigation concerning the same request. The Supreme Court had held that disclosure was not unlawful in principle, but that the earlier decision failed to satisfy section 73 of the Data Protection Act 2018: Elgizouli v Secretary of State for the Home Department [2020] UKSC 10, reversing the Divisional Court’s decision at [2019] EWHC 60 (Admin).

By the time of the present decision, the United States had given an assurance that the death penalty would not be sought or carried out, and the CPS had concluded that a UK prosecution had a realistic prospect of conviction. The central question was whether those circumstances made transfer strictly unnecessary, disproportionate or irrational.

1. Outcome. The court refused permission to apply for judicial review because the claim was not properly arguable.
2. The Data Protection Act 2018 and the UK-US mutual legal assistance regime were not in conflict. The Act governed the data-protection implications of a transfer, while the treaty facilitated co-operation once the statutory requirements were met. The Secretary of State had separately and conscientiously considered the relevant data-protection principles.
3. Under sections 35, 36 and 73 of the Data Protection Act 2018, the necessity requirement attaches to the specified law-enforcement task. Here, the task was the investigation and prosecution of Mr El Sheikh by the United States. That was a valid law-enforcement purpose. Since the United States would prosecute with the material and could not prosecute without it, the transfer was strictly necessary and proportionate for that task.
4. The prospect of prosecution in England did not alter that conclusion. Mutual legal assistance could be provided while domestic investigations or prosecutions were also contemplated. Neither the treaty nor the Act required the Secretary of State to await a domestic charging decision, or imposed a general preference for domestic prosecution. The choice of forum was not the question for the Secretary of State or the reviewing court.
5. The rationality challenge failed. The Secretary of State had considered the possibility and relevance of a UK prosecution, the treaty obligations, the seriousness of the alleged offences, the death-penalty assurance and the available alternatives. She was entitled to rely on the unequivocal assurance from the US Attorney General. Assertions that the United States might withdraw its request or abandon prosecution were speculative and unsupported by the evidence.

The interim prohibition on further disclosure ceased to have effect when judgment was handed down.

1. Supreme Court. In earlier litigation, the Supreme Court allowed the claimant’s appeal in part. It held by a majority that disclosure to assist a US investigation and prosecution was lawful in principle, but unanimously held that the earlier decision failed to satisfy section 73 of the Data Protection Act 2018: Elgizouli v Secretary of State for the Home Department [2020] UKSC 10.
2. Divisional Court. The earlier claim had been dismissed at [2019] EWHC 60 (Admin).
3. High Court (Administrative Court). In the present proceedings, permission for judicial review was refused.