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

Fecha: 11-Sep-2025

Discussion and conclusion

177.

I refuse permission in relation to Ground 4.

178.

Ultimately, Mr Cooper did not actually develop an argument that deferring the Warrant and allowing the Request to proceed was contrary to Article 8 ECHR in the present case. Nor was the feasibility or otherwise of human rights arguments based on the availability of extradition to an alternative requesting State fully addressed in Counsel’s submissions. This may have been because the answer is straightforward: if such arguments are feasible in principle they can and should be raised in the courts. If it is right that, say, the availability of extradition to Portugal renders extradition to the USA disproportionate that will be a bar to extradition to the USA. It is therefore an argument which can be raised in the proceedings relating to the Request. In the present case, that would mean the appeal against the order of District Judge Sternberg, but in another case it might be in the Magistrates’ Court. That is not to say that the argument is feasible as a matter of principle or is sound on the facts of the present case - I express no view as to that – but, whether it is or it is not feasible or sound is in my view a matter for the courts, and the answer will not be different according to whether it is decided by the courts or the SSHD.

179.

As for Mr Cooper’s attempt to circumnavigate section 70(11):

The argument based on the words “the extradition” goes nowhere. The comparative argument which he wishes to run is that “the extradition” to the USA pursuant to the Request certified under section 70 is incompatible with Article 8 ECHR because of the availability of extradition to Portugal. That amounts simply to a factual development – the Warrant – which is said to affect the proceedings in the courts relating to the Request. Consideration of this argument by the SSHD is clearly prohibited by section 70(11) whereas, as I have said, if it is a sound argument it will succeed in those proceedings.

ii)

This analysis does not require me to rely on what was said in the Scott Baker Review but the parties agreed that I could refer to it in order to determine the mischief which the amendment to the 2003 Act was intended to address: see Fothergill v Monarch Airlines [1981] AC 251 at 281C. For what it is worth, the analysis which I have set out above is entirely consistent with what was said in that Review, where the recommendation was to reserve the determination of human rights issues to the courts, which are better equipped to decide them in this context, and to avoid delays consequent on the SSHD being asked to address human rights issues in addition to the courts: see e.g. [1.33] and [1.34], [9.24]-[9.39] and [11.71]-[11.72].

180.

Finally, I note that the SSHD may be called upon to make the section 179 decision long before it is clear whether extradition to one or other of the requesting States will be consented to or ordered. The facts of the present case – where there is consent to extradition to Portugal and the availability of an alternative forum is therefore clear – are not necessarily typical. In other cases, where a number of bars to extradition may be raised in the proceedings relating to each of the competing requests, it is not clear, on Mr Cooper’s argument, how the SSHD is to evaluate the likelihood of extradition to the requesting State which the requested person favours on Article 8 grounds. Without being clear that extradition to this State is a genuine alternative, it is not clear how the SSHD is to decide what weight this consideration should be given. This, in itself, suggests that this is not a task which Parliament intended the SSHD to undertake.