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Country: United States of America

Home Department permitted to provide material relating to alleged terrorist to US Government, under Mutual Legal Assistance

R (on the application of Elgizouli) v The Secretary of State for the Home Department [2020] EWHC 2516 (Admin)

The Divisional Court has handed down a judgment in a case involving a challenge to a decision of the Secretary of State for the Home Department to provide material to the US Government, pursuant to a request for Mutual Legal Assistance (‘MLA’).

MLA is a method of cooperation between states for obtaining assistance in the investigation or prosecution of criminal offences. In this case, the requested material related to the alleged terrorist activities of the claimant’s son, Shafee El Sheikh.

The principal issues for determination were whether the decision to provide MLA was compatible with the Data Protection Act 2018 and whether the decision was irrational. In particular, the issue was whether it was strictly necessary and proportionate to transfer personal data to a third country in support of a foreign prosecution in circumstances in which the Crown Prosecution Service had decided that there was sufficient evidence to prosecute Mr El Sheikh in this jurisdiction.

Held: the Divisional Court refused permission to apply for judicial review. The Court considered that the prospect of a domestic prosecution was not relevant to the question of whether it was necessary and proportionate to transfer data to a third country, and that it was not arguably irrational for the Secretary of State to fail to have regard to such a prospect in deciding to provide MLA.

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