AC-2024-LON-001762 - [2025] EWHC 2293 (Admin)

I note that Ms Cumberland did not contest Mr Cooper’s argument that the potential impact of the exercise by the SSHD of her power under section 179 of the 2003 Act was sufficiently detrimental to the Claimant to give rise, at least in principle, to the common law duty to give notice to him of her intention and to give him an opportunity to be heard before the power was exercised. Nor did she submit that there were special facts which meant that the common law duty did not arise. Rather, her principal submission was that the common law duty was excluded by the terms and scheme of the 2003 Act.

In any event, I accept Mr Cooper’s submission that, for the reasons which he gave, the difference between extradition to the USA and extradition to Portugal, so far as the Claimant is concerned, is sufficiently important to engage these aspects of the duty to act fairly at common law. In particular, there are material differences including in terms of his proximity to family and friends, his connection with the respective legal systems, his rights and the likely outcomes in the criminal process, and his rights to support in relation to his mental health bearing in mind that he has been found to be a victim of modern slavery. The fact that the Claimant has been diagnosed with autism and has other issues with his mental health, and the risk of suicide, are also an important part of the circumstances in which the question under section 179 arose. All things being equal, these factors meant that the Claimant ought to have been given an opportunity to make representations, even if they were limited to representations about the matters identified by section 179(3), or by the SSHD in her guidance on applying section 179, at Annex A to the Submission – “Competing requests” – (see [63]-[65], above) i.e. limited to matters other than the interests of the Claimant.

Counsel appeared to agree that if there was an obligation to consider representations from the Claimant it would follow that the USA and Portugal should also be permitted to make representations. The basis on which this is so was not explored in their submissions but presumably it is that fairness would then require the requesting States to be given an opportunity to respond to the Claimant’s submissions. As the submissions of Portugal and the USA in the present case demonstrate (see, further, below), the opportunity for them to make representations under section 179 is also conducive to better informed decision making by the SSHD.

Second, as for Ms Cumberland’s submission that, in effect, the common law duty is impliedly excluded by the terms and scheme of the 2003 Act, her arguments based on sections 93 and 173 are unconvincing. Sections 93(5) and (7)(b) do not in fact enact a specific right to make representations, nor an obligation on the part of the SSHD to consider them. They assume that representations will made, and will be considered by the SSHD, but set deadlines after which representations need not be considered. They do not show that where Parliament intended to confer a right to make representations under the 2003 Act it said so. If anything, the fact that no specific right to make representations is enacted under section 93 supports the view that any omission to enact such a right under the 2003 Act, including under section 179, is due to it being assumed that representations will be made and considered where the common law duty to act fairly requires this.

I agree that section 173(2)(b) of the 2003 Act enacts an express obligation on the part of the SSHD to consider representations. But this is in a very different context i.e. where she is intending to issue a code of practice in relation to the exercise of police powers under Part 4 of the Act. This is not a context where a court or the SSHD are, in effect, adjudicating individual rights or making decisions which directly affect the rights or interests of individuals, and therefore not a context in which the common law duty to act fairly necessarily arises or can be assumed to arise. This may or may not be the explanation for Parliament making express provision for representations under section 173. But the fact that the context is materially different means that, in my view, it cannot sensibly be concluded on the basis of section 173 that Parliament intended to exclude the duty to consider representations in the materially different context of decisions which affect the question of where a person should be extradited to or, more generally, decisions which give rise to the common law duty to act fairly.

As for Ms Cumberland’s broader submission that the 2003 Act requires that any representations which a requested person might wish to make to the SSHD in the context of section 179 must all be raised in the Magistrates’ Court or on appeal to the High Court, I do not agree. There is a real difference between the issues which the courts decide in the context of a particular extradition claim and the issue under section 179. I will come to the question whether the Claimant’s interests are relevant to the decision under section 179 but, even assuming that they are not:

Third, as for Ms Cumberland’s submissions on the issue of practicality and delay – “impossibility, impracticality or pointlessness” in the words of Lord Neuberger at [179] of Bank Mellat – I accept that the statutory imperative is for extradition claims to be dealt with as rapidly as is consistent with the interests of justice. This is reflected in the materials on which Ms Cumberland relied and is well established. It should also be recognised that if a given construction of the 2003 Act (here, that section 179 does not exclude the duty to consider representations) would lead to significant delay, that is a factor which militates against that construction. However, it is open to the Magistrates’ Court (when making a decision under section 44) or the SSHD (when making a decision under sections 126 and 179) to set tight deadlines for the making of representations and, more generally, to manage the process efficiently in the context of such time constraints as apply.

As for Ms Cumberland’s submission that the deadlines for ordering and effecting extradition under, for example, sections 35, 36, 47, 99, 117 and 118 are tight, this is true in the case of some of those deadlines but less so in relation to others. The working assumption made by the 2003 Act is also that if there are competing extradition claims the Magistrates’ Court or the SSHD will be informed or aware of this. As soon as they are, either a decision as to deferral of one of the claims will be taken or no extradition order will be made by the Magistrates’ Court pending a decision by the SSHD as to which should be deferred (see sections 44, 51, 126 and 179). Often, this will be before any decisions have been made on which the statutory deadlines for an extradition order, or for extradition to be effected, have come into effect. Even where such a deadline has come into effect, the 2003 Act does permit applications (under e.g. sections 35(4)(b), 47(3) and 99(4)) to extend time so as to enable representations to be made. There is also scope for the requested person to agree not to apply to be discharged if a statutory deadline is not met, as a condition for being given time to make representations, albeit the fact that arguably a requested person could not be held to such an agreement means that this is not a factor on which I place great weight.

As far as the ability of the SSHD to resolve factual disputes is concerned, this is likely to be less of an issue in relation to representations about the sort of factors referred to in section 179(3) and/or Annex A than in relation to representations about the interests of the requested person. I deal with representations about potentially disputed factual matters below.

Fourth, there is the question whether the interests of the requested person are a relevant consideration. Although this was not addressed in Counsels’ submissions as a discrete issue, it seemed to me that it is necessary – given the arguments which the Claimant and Portugal would have wished to put before the SSHD - to consider what is the permitted scope of any representations to the SSHD under section 179. Assuming that there would be no right to make representations which were irrelevant to the SSHD’s decision, this entails asking what considerations should be taken into account by the SSHD in exercising the discretion under section 179. The interpretation of section 179 for this purpose also engages Ms Cumberland’s arguments about the terms and scheme of the 2003 Act and about practicalities and the risk of delay etc.

In addition to her arguments summarised above, Ms Cumberland made a broad submission that matters such as the requested person’s ties with one or other of the requesting States, the impact on their mental health of extradition to one requesting State as opposed to the other, relative suicide risk, the impact on their rights and interests of choosing one State rather than the other etc, can only be raised in the Magistrates’ Court or the High Court in the context of a particular extradition claim. She also said, when I asked her about the OP case relied on by Mr Hyman, and the statement of the Court of Justice that the need to give consideration to the interests of the person concerned cannot be dispensed with, that she did not “necessarily accept” that section 179 was intended to implement Article 16 of the Framework Decision; the status of the OP decision was “advisory”; and that “generally the accused or convicted person does not get to have a say over where they are tried or where they serve their sentence”. She did not accept that the interests of the requested person were relevant. But she did not base this on a detailed analysis of the statutory provisions or any case law which explained why the line should be drawn where it is drawn in Annex A: why, for example, the nationality of the requested person may be taken into account but not their social and family ties to the requesting States.

Section 179(3) of the 2003 Act provides a non-exhaustive list of the principal considerations for the SSHD, as her own guidance in Annex A acknowledges. The scheme of the 2003 Act as a whole is to recognise that, in the context of a particular extradition claim, the requested person has rights and interests which require to be taken into account as part of the decision making about whether they should be extradited. It is not clear why these considerations would become irrelevant where there are competing extradition claims although, of course, Ms Cumberland argues that they can be raised in the context of a particular extradition claim albeit that is all that is permitted by the Act. It also seems to me that Ms Cumberland’s broad submission that, in effect, the interests of the requested person are irrelevant to the SSHD’s decision under section 179 does not give any weight to the fact that the section applies to accusation as well as conviction cases. It cannot be construed on the assumption that the requested person is guilty as charged and that their interests are therefore irrelevant.

Returning to Ms Cumberland’s arguments based on the terms and scheme of the 2003 Act, her arguments based on sections 93 and 173 (which I have rejected in any event) do not shed light on the scope of the representations which, in my view, must be considered by the SSHD under section 179. Her argument that the courts are the only forum in which the issues which the Claimant wishes to raise may be raised is, however, more compelling. Clearly, the courts are better equipped to determine evidential disputes and to evaluate evidence of this sort where the need arises, and the opportunity to make wider ranging representations is more likely to cause delay.

However:

Finally, insofar as Ms Cumberland’s argument that the opportunity to make representations would not have made a difference to the outcome was an argument that therefore the duty to act fairly did not arise and/or is excluded by the statute because such an opportunity would be “pointless” (per Lord Neuberger in Bank Mellat), I disagree. For reasons I will explain below in relation to section 31(2A) of the Senior Courts Act 1981, that is not the position on the facts of the present case. Nor can it be said that, for the purposes of interpreting the 2003 Act, it should be taken to be pointless in all cases. I do not suggest that the SSHD could not have reached the same decision in the light of the representations which the Claimant and Portugal would have made, but the position is not so clear cut that giving them the opportunity to do so would be “pointless”.

For these reasons it seems to me that whilst section 179 makes clear that the considerations specified at 179(3) are of particular importance and must be taken into account, the SSHD has a broad discretion under the section. As it is formulated under Article 614.3 TACA, however, she is required to give due consideration to all of the circumstances and, in my view, these include the interests of the requested person. That being so, it must be open to the requested person to make representations which rely on broader factors than those which are specified in section 179(3), and indeed Annex A to the Submission, including representations on how their interests are best served.

In reaching this conclusion I am fortified by the fact that it is consistent with the position under Article 16(3) of the Framework Decision which, I accept, section 179 was intended to implement. Whilst the position is now set out in Article 614 TACA there is no evidence in the text of that provision that a different approach was intended or required to be taken and, as Mr Hyman notes, section 179 has not been amended since Brexit. The force of his implied submission that therefore the interpretation of Article 16 stated in OP was intended by Parliament to be the position under section 179 is reduced by the fact that it was decided recently, and post-dates TACA. Moreover, OP is not binding on me in any event as the parties agreed. However, no one disputed Mr Hyman’s submission that, pursuant to section 6(2) of the European Union (Withdrawal) Act 2018, I could have regard to OP.

In connection with OP, I also note what was said at [87]-[102] of the Advocate General’s Opinion including, at [87]:

“More specifically, Article 16(3) of Framework Decision 2002/584, read in conjunction with Article 16(1) thereof, makes it clear that the decision on precedence is to be taken ‘with due consideration of all the circumstances’, ‘in particular’ seriousness and place of the relevant offences, the respective dates of the requests and whether the requests concern prosecution or execution of a custodial sentence, as well as those specified in the applicable convention. In the light of the non-exhaustive nature of those criteria, the competent authority may also take into account criteria other than those referred to above, such as those mentioned in the Guidelines issued by Eurojust,…(subject to the applicable extradition convention)”. (emphasis added)

Eurojust (the European Union Agency for Criminal Justice Cooperation) is also referred to in Article 614.2 TACA, as noted at [96], above, albeit with reference to the executing judicial authority of an EU Member State. Mr Cooper produced the Eurojust “Guidelines for deciding which jurisdiction should prosecute” dated 13 December 2016, albeit in the course of his reply to Ms Cumberland’s submissions at the hearing. These include, as relevant considerations in deciding which request/warrant should take precedence:

“the nationality or usual place of residence of the suspect/accused person;

the possible strong personal connections with one Member State or other significant interests of the suspect/accused person” (emphasis added)