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The Divisional Court has handed down a decision regarding the provision of material by the Home Secretary to the United States’ Government following a request for Mutual Legal Assistance (MLA).

MLA is a form of cooperation between states for the purpose of assisting in the investigation or prosecution of criminal offences.  The requested material related to the alleged terrorist activities of the claimant’s son, Shafee El Sheikh, formerly a British citizen. Mr El Sheikh is currently under investigation for offences in Syria arising out of his membership of a group of foreign terrorist fighters known as the 'Beatles’. The United States’ Government has provided a death penalty assurance. 

The principal issues for determination by the Court were: i) whether, in circumstances where a death penalty assurance had been provided, the decision to provide MLA was compatible with the Data Protection Act 2018; and ii) whether the decision was irrational.  Central to both of these issues was the question of whether the provision of the material requested was strictly necessary or proportionate in circumstances where the CPS had recently sought to commence criminal proceedings against Mr El Sheikh in England and Wales.

The Divisional Court concluded that the claim was not arguable on either of these grounds, and refused the Claimant permission to apply for judicial review.

Sir James Eadie QC and Jason Pobjoy acted for the Secretary of State for the Home Department.  

A copy of the judgment is available here.