AC-2023-LON-001835 - [2025] EWHC 2770 (Admin)

The appeal is brought under s.26 of the Act and the Court’s powers are set out in s.27:

“(1)

On an appeal under section 26 the High Court may—

(a)

allow the appeal;

(b)

dismiss the appeal.

(2)

The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.

(3)

The conditions are that—

(a)

the appropriate judge ought to have decided a question before him at the extradition hearing differently;

(b)

if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.

(4)

The conditions are that—

(a)

an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;

(b)

the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;

(c)

if he had decided the question in that way, he would have been required to order the person's discharge.

(5)

If the court allows the appeal it must—

(a)

order the person's discharge;

(b)

quash the order for his extradition.”

I was referred to Lord Burnett LCJ’s judgment in Love v USA [2018] EWHC 172 (Admin), [2018] 1 W.L.R. 2889 at [25] as to the test to be applied:

“The statutory appeal power in section 104(3) permits an appeal to be allowed only if the district judge ought to have decided a question before him differently and if, had he decided it as he ought to have done, he would have had to discharge the appellant. The words “ought to have decided a question before him… differently” (emphasis added) give a clear indication of the degree of error which has to be shown. The appeal must focus on error: what the judge ought to have decided differently, so as to mean that the appeal should be allowed. Extradition appeals are not re-hearings of evidence or mere repeats of submissions as to how factors should be weighed; courts normally have to respect the findings of fact made by the district judge, especially if he has heard oral evidence. The true focus is not on establishing a judicial review type of error, as a key to opening up a decision so that the appellate court can undertake the whole evaluation afresh. This can lead to a misplaced focus on omissions from judgments or on points not expressly dealt with in order to invite the court to start afresh, an approach which risks detracting from the proper appellate function. That is not what Shaw's case or Belbin's case was aiming at. Both cases intended to place firm limits on the scope for re-argument at the appellate hearing, while recognising that the appellate court is not obliged to find a judicial review type error before it can say that the judge s decision was wrong, and the appeal should be allowed.

The true approach is more simply expressed by requiring the appellate court to decide whether the decision of the district judge was wrong. What was said in Celinski and Re B (A Child) are apposite, even if decided in the context of article 8. In effect, the test is the same here. The appellate court is entitled to stand back and say that a question ought to have been decided differently because the overall evaluation was wrong: crucial factors should have been weighed so significantly differently as to make the decision wrong, such that the appeal in consequence should be allowed.”

I was also referred to the judgment of Aikens LJ in Belbin v Regional Court of Lille, France [2015] EWHC 149 (Admin), [66]:

“If, as we believe, the correct approach on appeal is one of review, then we think this court should not interfere simply because it takes a different view overall of the value- judgment that the District Judge has made or even the weight that he has attached to one or more individual factors which he took into account in reaching that overall value-judgment. In our judgment, generally speaking and in cases where no question of “fresh evidence” arises on an appeal on “proportionality”, a successful challenge can only be mounted if it is demonstrated, on review, that the judge below; (i) misapplied the well established legal principles, or (ii) made a relevant finding of fact that no reasonable judge could have reached on the evidence, which had a material effect on the value-judgment, or (iii) failed to take into account a relevant fact or factor, or took into account an irrelevant fact or factor, or (iv) reached a conclusion overall that was irrational or perverse.”