AC-2023-LON-001921 - [2025] EWHC 1416 (Admin)

The French Criminal Code is recognised as involving an evaluative question whether there has been EMHA. Mr Swain emphasises the references, found within the 28 March 2023 document from the French Ministry of Justice relied on in Doga, to a “discretion” which is “unfettered” (Doga §16). He accepted in his oral submissions that what this language must mean is a concrete fact-specific evaluative judgment asking whether the measure in question does or does not constitute an EMHA.