[2025] EWHC 2783 (Admin)

The DJ Appeal arises under s. 103 of the Act which provides by subsection (4) that an appeal may be brought on a question of law or fact. The SSHD Appeal is brought under s. 108 of the Act which has an equivalent provision at subsection (3). Such an appeal is not by way of rehearing, but by way of review: CPR 52.21 and Hungary v Fenyvesi [2009] EWHC 231 (Admin). Absent a procedural injustice or irregularity, the court will allow the appeal only if the decision (whether of the Judge or the SSHD) is “wrong”: CPR 52.21(3)(a). Mr Badie must show that the decision maker ought to have decided a relevant question differently and, had (s)he decided the question in the way he ought to have done, (s)he would have been required to order Mr Badie’s discharge: ss. 104(3), (4), 109(3), (4) of the Act.

These appeals do not raise any issues of law. They are challenges to the Judge’s conclusions of fact, which involve findings of primary fact and an evaluative assessment of all the evidence. On such an appeal, the principles to be applied by an appellate court to findings of fact or evaluative assessments of a lower court are well established. In the absence of some identifiable error such as a material error of law, an appellate court will not interfere with such findings or assessments unless the judge’s decision is plainly wrong, in the sense that it was one which no reasonable judge could have reached, or (which is the same) lies outside the bounds within which reasonable disagreement is possible; if the decision does not come within that category it is irrelevant that the appellate court would have reached a different decision. See Assicurazioni Generali SpA v Arab Insurance Group (Practice Note) [2002] EWCA Civ 1642; [2003] 1 WLR 577, at [16]; FAGE UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5; [2014] FSR 29, at [114]; Henderson v Foxworth Investments Ltd [2014] UKSC 41; [2014] 1 WLR 2600, at [58]-[68]; Volcafe Ltd v Cia Sud Americana de Vapores SA [2018] UKSC 61; [2019] AC 358 at [41]; JSC BTA Bank v Ablyazov [2018] EWCA Civ 1176; [2019] BCC 96, at [40]-[41]; Perry v Raleys Solicitors [2019] UKSC 5; [2020] AC 352, at [49]-[52]; Volpi v Volpi [2022] EWCA Civ 464; [2022] 4 WLR 48, at [2]-[4]; Maso Capital Investments Ltd v Trina Solar Ltd [2025] UKPC 48 at [19].

In the last case, the Privy Council said at [20]:

“Four of the reasons for that restrictive approach are of relevance to the current appeal. First, where the trial court has heard evidence given orally by witnesses, tested by cross examination, it is in a much better position to evaluate that evidence than an appeal court which does not have that advantage; a transcript of the evidence does not capture the atmosphere of the courtroom or the subtleties of the way the evidence was given. That applies as much to expert witnesses as it does to witnesses of fact (save sometimes in the special case of experts on foreign law). Secondly, as Lord Hoffmann said in Piglowska v Piglowski [1999] UKHL 27; [1999] 1 WLR 1360, 1372: “[The judge’s] expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.” Thirdly, the trial judge has sat through the entire case and their ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial judge who has lived with the case for days or weeks will be far deeper than that of the appellate court whose view of the case is much more limited: McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477, at para 4. In the memorable and oft quoted metaphor ascribed to this consideration by Lewison LJ in FAGE v Chobani, “[i]n making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.”

Each of these three reasons is particularly apposite to the circumstances of the present appeal.

This restrictive approach applies in its full rigour to extradition appeals under the Act: see RB (Algeria) v Secretary of State for the Home Department [2010] 2 AC 110 at [73], [117], Celinski v Poland [2015] EWHC 1274 (Admin); Ozbek v Turkey [2019] EWHC 3670 (Admin) at [18]; Lauri Love v Government of the United States of America [2018] EWHC 172 (Admin) at [23]-[26]. Where it is possible to make some criticism of some aspect of the judge’s reasoning, that is not sufficient of itself to justify interfering with the overall evaluative conclusion. As is made clear at [26] of Lauri Love the appellate court must stand back and only if it is able to say that crucial factors should have been weighed so significantly differently as to make the decision wrong should the appeal be allowed.

Further, in this field as in others, where the fact finding tribunal has correctly stated the legal principles to be applied, an appellate court should be slow to conclude that they have not applied those principles, and should generally do so only where it is clear from the language used that a different principle has been applied to the facts found. Trial judges sometimes make errors, having stated the principles correctly but slipping up in their application, as the case law demonstrates; but if the correct principles were in the judge’s mind, as demonstrated by their being identified in the express terms of the decision, the judge can be expected to have been seeking faithfully to apply them, and to have done so unless the contrary is clear from the language of the decision. This presumption ought to be all the stronger where, as in the present case, the decision is by an experienced tribunal applying familiar principles whose application forms a significant part of its day to day judicial workload. See AH (Sudan) v Secretary of State for the Home Department [2008] 1 A.C. 678 at [30]; DPP Law Ltd v Paul Greenberg [2021] EWCA Civ 672 [2021] I.R.L.R. 1016 at [58].