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

As noted above, Ms Cumberland made reference to section 31(2A) of the Senior Courts Act 1981 although she did not make a specific submission that relief should be refused pursuant to this section or include this question in the agreed list of issues. Nor were any relevant authorities cited, nor were any arguments developed by Mr Cooper under section 31(2B) and nor did Ms Cumberland argue that permission should be refused pursuant to section 31(3C)/(3D).

For the avoidance of doubt, however, applying the well known guidance in the case law and the recent decision of the Court of Appeal in R (Bradbury) v Brecon Beacons National Park Authority [2025] EWCA Civ 489, [2025] 4 WLR 58, it does not appear to me that it is highly likely that the outcome for the Claimant would not have been substantially different if the conduct complained of under Grounds 1-3 which I have found to have been unlawful had not occurred. The effect of the errors which I have identified was that the Minister considered and accepted a Submission which was wrong in material respects in favour of the recommendation which it made, even on the basis of the information in the Request and the Warrant. He did so without considering what would have been cogent counter arguments from the Claimant and Portugal and he therefore failed to take into account a number of material considerations. The arguments in favour of the Request – including as to the desirability of a trial in the USA – were overstated, and there were attractions to extradition to Portugal, including the fact that it was not resisted by the Claimant and could therefore be effected immediately. So, although the decision was and is for the SSHD to take, the case for giving precedence to the Request, had the SSHD proceeded lawfully, was not so powerful as to meet the standard under section 31(2A).