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

I note that as the Minister did not give reasons for his decision and has not provided a witness statement, my assessment of what must or must not have played a material part in his reasoning can only be based on the Submission and its Annexes. The GLD’s pre action response letter of 16 April 2024 does not purport to do more than argue the SSHD’s case based on those documents. This point also affects Ground 3.

Taking each of Mr Cooper’s complaints in turn, as I have noted Ms Cumberland did not dispute that the statements in the Submission and Annex B that the offending/allegations were “identical” were incorrect. Whilst I accept that there is a substantial overlap in the offending alleged in the Request and the Warrant I do not accept that the Claimant’s reliance on the additional allegations of money laundering and tax evasion/fraud is, in effect, an argument based on form rather than substance and/or the difference is immaterial. The substance of the Claimant’s argument is not merely that the alleged offending has been categorised differently because of the differences between the US and the Portuguese legal systems or that there are more counts in the proceedings in the USA.

Rather, I accept Mr Cooper’s submission that the Portuguese authorities have charged the Claimant with additional offences based on additional criminal conduct. In effect, both the Request and the Warrant require him to stand trial for data theft and trading in stolen data of which various companies and individuals are the victims; the Warrant, additionally, seeks to prosecute him for the laundering of the proceeds and the failure to account to the Portuguese tax authorities for these proceeds. Moreover, this feature of the Warrant is specifically connected to Portugal. In relation to money laundering, the Warrant alleges in terms that the proceeds of the Claimant’s activities in relation to RaidForums were paid into his Banco Santander account in Portugal. In relation to tax fraud, the allegation is that the Claimant was never registered with the Portuguese tax authorities and has never submitted income tax declarations to them.

The disclosure of the true Annex B gave pause for thought in relation to this issue as [8] (quoted above at [75]) does refer to the money laundering and tax fraud charges, the maximum sentences for each, the sum paid into the Claimant’s bank account in Portugal and what the Warrant says about his failure to account to the Portuguese tax authorities. Arguably, on the basis of [8] taken in isolation, the Minister was therefore aware that the offending/allegations were not identical, despite being told that they were. However, the GLD’s submissions by email dated 7 August 2025 did not withdraw the implied concession that the Minister proceeded on the basis that they were identical or, indeed, rely specifically on what is said at [8] of Annex B to argue that the error was not material. This may be because of what is said at [5] of the Submission (i.e. that they are identical) and because of what is said that the beginning of [8] of Annex B, namely that Portugal had requested the extradition of the Claimant “for the same crime, over the same period of time”. As noted above, [10] of Annex B also identified as a “Key point..for consideration” the fact that “Both offences (sic) concern identical offending” and goes on to refer to “the identical facts”.

As to the question whether the mistake must have played a material but not necessarily decisive part in the Minister’s reasoning, I accept that it must have. In both Annex A and B to the Submission the Minister was told that the relative seriousness criterion was usually decisive. It would therefore be material for him to be told that there was additional offending alleged by the Portuguese authorities and the case against him under the Warrant was therefore more serious. Instead, he was told as a “key point” that the allegations in both the Request and the Warrant were “identical” – not just that they substantially overlapped – and that this meant that it was “impossible” to determine the matter on the basis of this criterion. On a fair reading of the Submission and Annex B, this approach meant that the bases for the Minister’s decision were the location of the victims and the witnesses in each extradition claim and the fact that the Request was made two years earlier than the Warrant was issued. In other words, as a result of the first mistake identified by Mr Cooper the starting point for the Minister’s reasoning was materially different to what it ought to have been under his own guidance.

To my mind, it was also material that the Warrant overlapped with, but covered wider offending than, the Request. This goes to relative seriousness but it also goes to the practicalities given that the Request would not necessarily lead to the disposal of all of the criminality alleged against the Claimant. This was a factor in favour of giving precedence to the Warrant. In this connection, I note that Annex A itself states that the extent to which the conduct alleged in one request or warrant is “subsumed in a competing request or….Warrant” is relevant, albeit if the matter is not settled by the considerations which are required by section 179(3) to be taken into account.

As to the Claimant’s second alleged material mistake of fact, the true characterisation of what happened seems to me to be that what the Minister was told about the location of the victims was internally contradictory and unclear, but one of the contradictory positions was incorrect. The Submission said that the “stated victims and witnesses” in each request were based in the US so that “on its face, a trial in the US would thus be more appropriate”. However, the summary of the offending in Annex B included a statement that “Since June 2016, it is estimated that more than 10 billion unique records of individuals living in the US and elsewhere were trafficked through Raid Forums.” Annex B went on to say, at [8] that “All of the victims referenced in the [Portuguese] request, either a person or a business, are based in the US” (emphasis added). At [10] it said, in relation to the relative seriousness of the offences, that “as recorded in the Portuguese request, all the victims are based in the US. But both requests note that there are purported victims based outside the US. Neither request provides further detail or specific figures. It is unknown if any victims were based in Portugal”. [10] goes on to say, in relation to the question where each offence was committed, that “In both requests, the stated victims are exclusively based in the US” (emphasis added) and it is not known whether any victims are based in Portugal.

There was no analysis of the meaning of “the stated victims” in Counsel’s submissions but even assuming that this means the corporate and individual victims of the data theft and trading whose locations are apparent from the Request and the Warrant, what is said in the Submission is at best confusing and, at least in places, incorrect. In fact:

Even on their face, the Submission and Annex B were therefore wrong to say that in both extradition requests the stated victims of the Claimant’s offending were all or exclusively based in the USA. In fact, in both it was stated that the victims were “often” US companies and the affected individuals resided “in the USA and internationally”. As Mr Cooper submits, there is also material in addition to the Request and the Warrant to show that the victims of the data theft and trading were not exclusively based in the USA. Annex B was right to say that it was not known whether any victims were based in Portugal if this was a reference to victims of the theft and trading of data, but it was wrong in the sense that this overlooked the point that the alleged victim of the tax fraud was the Portuguese State and, indirectly, the Portuguese people.

Turning to the question of materiality, I note that the GLD’s email submissions dated 7 August 2025 do not argue that the Minister was told in Annex B, albeit in internally contradictory and confusing statements, that there were victims or purported victims based in countries other than the USA. Rather, the argument put forward at the hearing was maintained. This is effectively that the point being made in the Submission was about the victims of the main offending; the Submission referred to victims and witnesses and this point was rightly the basis for suggesting that their location rendered a trial in the USA more appropriate. Reading what was said in the round, any error or inaccuracy specifically in relation to victims cannot have played a material part in the Minister’s decision.

After some hesitation, I do not accept this argument. The statutory criterion under consideration was “the place where each offence was…alleged to have been committed” and it seems to me that the location of the victims of the Claimant’s offending was more relevant to that consideration than the location of the witnesses, particularly the law enforcement witnesses, given that the case concerns cybercrime. The thrust of the Submission, albeit there were internal contradictions, was that the question of the location of the victims pointed entirely in favour of the Request. Having decided that there was a dead heat in terms of the relative seriousness of the offending, the location of the victims was one of only three differentiating features between the Request and the Warrant which were identified, the other two being the location of the witnesses and the timing of the two extradition claims. The purported fact that the stated victims were exclusively based in the USA was also presented as a counter argument to the argument for giving precedence to the Warrant based on the fact that the Claimant was living in Portugal at the time of his criminal activities. If the author of the Submission had recognised that, not only were the victims worldwide, the Portuguese State was an alleged victim of the alleged offending, this would have moved the dial further towards giving precedence to Portugal or, at least, less towards giving precedence to the Request based on the location of the witnesses, even if it was not decisive.

I accept that a key point relied on by the author of the Submission was that the witnesses were based in the USA, including FBI and other law enforcement witnesses who had taken part in the US investigation. But, as Ms Pinho points out, it is not the case that no investigation was carried out by the Portuguese authorities. They did investigate the matter. She also points out that in any event witnesses and victims can give evidence remotely under the Agreement between the European Union and the United States of America on mutual legal assistance, published in Official Journal L181 on 19 July 2003 and under the Portuguese Code of Criminal Procedure. Testimony may also be given in writing if this is not possible. I make this point, not because there was any allegation of a mistake of fact in this regard but because it goes to the materiality of the mistake alleged in relation to victims. In this connection I also note that although, in the round, the Request and the Warrant do indicate a strong connection between the offending and companies and individuals based in the USA, Annex B itself acknowledges that “neither request provides further detail or specific figures for the purported victims” and that it is not known whether there were any victims based in Portugal, rather than that there are none. To this extent, Ms Cumberland’s submission that the victims of the conduct in the main were based in the USA is not as powerful as it might otherwise be.

Even if the two mistakes of fact alleged by Mr Cooper were not individually material in the relevant sense, in combination it seems to me that they were. It must have been material to the Minister’s decision that he understood that the allegations against the Claimant were identical but that the victims of the offending whose locations were apparent from the Request and the Warrant were all in the USA. And it would have been material to know that in fact broader criminality was alleged by the Portuguese authorities, the Request itself indicated that the victims of his offending were not all based in the USA and it was apparent that a key victim was the Portuguese State. Overall, the essential error made by the author of the Submission was to focus on the data theft and trading and to overlook the significance of the additional charges in the Warrant. Even on this approach the suggestion that, on the information available, all of the victims of the data theft and trading were based in the USA was wrong. This led to unfairness in that the decision was taken on a materially inaccurate presentation of the position. It also rendered the Decision irrational.

For all of these reasons I give permission on Ground 2 and allow the claim on this Ground.