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Ground 2: mistake of fact?
Ground 2: mistake of fact?
The principle
As is well known, the applicable principle is stated in E v Secretary of State for the Home Department [2004] EWCA Civ 49, [2004] QB 1044 at [66] where Carnwath LJ (as he then was) said this:
“66. In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result…Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are ….. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning.”
- Heading
- Mr Justice Linden
- The issues for determination
- Summary of my decision
- Outline of the key features of the statutory framework for present purposes
- The facts
- The request for the extradition of the Claimant by the USA
- The decision of the Westminster Magistrates’ Court in relation to the USA’s request for the extradition of the Claimant
- The referral of the Claimant under the National Referral Mechanism
- The Claimant’s appeal against the order for his extradition pursuant to the Request
- The Portuguese arrest warrant
- The order for the extradition of the Claimant pursuant to the Warrant and the Claimant’s second claim for judicial review
- The evidence about the SSHD’s decision on 14 March 2024
- Annex A to the Submission
- The discovery of errors as to Annex B to the Submission and other information which was before the SSHD at the time of the Decision
- The contents of Annex B, so far as is material
- The SSHD’s Order
- Attempts on behalf of the Claimant to make representations
- Ground 1: breach of the duty to act fairly?
- The Claimant’s argument
- The submissions on behalf of Portugal
- The argument on behalf of the SSHD
- The USA’s submissions
- Discussion
- Conclusion on Ground 1
- Ground 2: mistake of fact?
- The arguments of the parties
- Discussion of Ground 2
- Ground 3: failure to take into account relevant considerations
- The arguments of the parties
- Discussion
- Ground 4: breach of section 6 of the Human Rights Act 1998
- The Claimant’s argument
- Discussion and conclusion
- Ground 5: breach of Article 4 ECHR and the ECAT
- Discussion
- Section 31 (2A) of the Senior Courts Act 1981
- The Additional Point
- Discussion
- Conclusions