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

Essentially, factor 1 looks at the first material mistake of fact relied on by the Claimant. The relative seriousness of the offending was a mandatory relevant consideration and, in my view the Minister was bound to take into account the evidence that the Warrant related to wider and, in this sense, more serious offending than the Request. Instead, he proceeded on the basis that the offending/allegations in both requests was identical. I accept that this was irrational.

As for factor 2, I reject Mr Cooper’s complaint. As highlighted above, the Submission and the Annex made clear that the offending had taken place whilst the Claimant was living in Portugal. This and his Portuguese nationality were acknowledged to be a factor in favour of giving precedence to the Warrant (see [1] of Annex B). The figures in relation to the proceeds of the Claimant’s activities related to RaidForums were also provided and commented upon (see [8] of Annex B. The treatment of this factor did not render the Decision irrational.

As for factor 3, the Minister was informed of the Claimant’s Portuguese nationality but I accept that the approach in the Submission, which reflected the guidance in Annex A, was to leave the Claimant’s interests out of account. For the reasons which I have given above, the Minister was required to give due consideration to these matters and I accept that his failure to do so rendered his decision irrational.

As to factor 4, I have accepted that the statements about victims in the Submission and Annex B were contradictory and confusing, and the statements that the victims or stated victims were all or exclusively based in the USA were wrong and irrational. However, I do not agree that the Minister appears to have given decisive weight to the location of the victims. As noted above, the overall point which was being made in the Submission was that because the victims and the witnesses were all based in the USA it was desirable that the trial should take place there. The Submission also made the point that the Request had been made 2 years before the Warrant.

I reject the complaint about factor 5, which is essentially a complaint about taking into account an allegedly irrelevant consideration. As noted above, what [10] of Annex B actually said was that if the prosecution were to proceed in Portugal, “the transmission of evidence and attendance of witnesses could potentially cause issues, thereby vitiating the proper and fair administration of justice” (emphasis added). That seems to me to be an unexceptionable statement and the Minister was entitled to take this factor into account.

As to factor 6, I agree that as part of an overall approach which took the view that the interests of the Claimant were irrelevant the Minister did not take into account the relative impact on the Claimant’s mental health and the risk of suicide in the event of extradition to the USA as compared with Portugal. Although these considerations were addressed in the judgment of District Judge Sternberg at Annex E to the Submission the reasoning in the Submission and the Annex, on which the Decision may be taken to be based, treated them as irrelevant. For the reasons which I have given, I do not agree that they were.

As to factors 7 and 8, I deal with the ECAT and Article 4 ECHR in greater detail below and set out the relevant provisions. However, as noted above the Submission specifically drew attention to the reasonable grounds decision and to the fact that the conclusive grounds decision had not yet been made.

I therefore give permission and allow the claim under Ground 3 to the extent indicated above but not otherwise.