Christopher Knight in ISIS Beatles’ Challenge to Transfer of Data to the USA


In R (Elgizouli) v Secretary of State for the Home Department [2020] EWHC 2516 (Admin), 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’. Following a judgment of the UK Supreme Court earlier this year quashing an earlier decision to comply with the request without receiving death penalty assurances, the United States’ Government provided a death penalty assurance in August 2020. 

The focus of the claimant’s challenge was whether the transfer of the data to the US for the purpose of its prosecution of Mr El Sheikh was in accordance with the international data transfers provisions of Part 3 of the Data Protection Act 2018. The essence of the issue was 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 (the President of the QBD and Garnham J) concluded that the Home Secretary had carefully and fully considered the requirements of data protection law, the transfer was strictly necessary for the relevant purpose and held that the claim was not arguable, refusing the claimant permission to apply for judicial review.

Christopher Knight acted for the Secretary of State for the Home Department. The judgment can be read here.