Lawful to provide mutual legal assistance for the criminal investigation into ‘the Beatles’ without death penalty assurances


Re: R (El Gizouli) v Secretary of State for the Home Department [2019] EWHC 60 (Admin)

This judicial review, arising in the context of one of the so-called ‘Beatles’, considered the lawfulness of mutual legal assistance in support of a criminal investigation which may lead to prosecution for offences which carry the death sentence, without requiring an assurance from the foreign state that the prosecution would not seek the death sentence.

The Court considered five grounds. Inter alia, the Court rejected the argument that the death penalty is cruel and unusual punishment and as such it is unlawful for the Home Secretary to contribute to the risk of its imposition, finding that there is no precedent or statute for the extension of the non-facilitation principle to those outside the protection of the ECHR, and it is well-recognised that the courts are careful not to develop the common law to undermine or alter arrangements established by statute. The Court found there to be no warrant for interpreting UNCAT, art 16 as prohibiting the death penalty on the basis that it amounts in itself to cruel or inhuman punishment, and found no support for the assertion that international law necessarily precludes the provision of mutual legal assistance in proceedings in which an individual might face the death penalty. The Court also rejected the contention that the decision not to seek a death penalty assurance was inconsistent with the UK Government’s policy of opposition to the death penalty in all circumstances because it considered that it is a matter for the Government whether to adopt policy and to decide whether it should be absolute or qualified. The Court rejected the claim that the treatment of Mr El Sheikh violates the claimant’s ECHR, art 3 and 8 rights because there is no “direct and immediate link” between the measures and the claimant’s private and/or family life”, and in this case there were various causes for the claimant’s distress, most noticeably the voluntary actions of her son.

Therefore the Court dismissed the claim for judicial review on all grounds.

Richard Hermer QC and Edward Craven were involved in this case.