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

Mr Evans’ argument was as follows:

In the section of her Detailed Grounds of Defence which addressed Claim 2, at [23], the SSHD pleaded that she wished to “clarify” that the Decision was taken pursuant to section 179(2)(b) rather than section 179(2)(a) as might have appeared. Although the SSHD’s Order simply refers to section 179(2), that Order could only have been made under section 179(2)(b) because the Warrant had been disposed of. But she did not plead that this had any particular consequence for Claim 2, still less the Claim, and she went on to say, at [24], that “The real question, and the one of substance, is whether the SSHD ought to have exercised his discretion to defer the Portuguese warrant as opposed to the US request” (emphasis in the original). She went on to plead, in relation to Claim 2, that she agreed with the submissions on behalf of the USA that the extradition order made by District Judge Snow ought to be quashed, and she explained why.

In other words, the Additional Point was not taken by the SSHD in her pleaded case in relation to the Claim. Nor was it identified in the agreed list of issues or in her skeleton argument. Nor was there any application by the SSHD to amend. This gave Ms Cumberland’s adoption of Mr Evans’ point as her first submission at the hearing a distinctly opportunistic flavour. However, in view of the fact that the point was mentioned in passing in the SSHD’s pleaded case and was pleaded by the USA and developed in full in Mr Evans’ skeleton argument, I allowed it to be run on behalf of the SSHD. Indeed, Mr Cooper did not specifically object to it being relied on by Ms Cumberland. As noted above, however, I gave directions for the point to be addressed in writing after the hearing.

A further unattractive feature of Ms Cumberland’s submissions on this point was her claim that the SSHD’s statement that the Decision was made pursuant to section 179(2)(a) was “a typo”. In fact it had been said at least twice on behalf of the SSHD - in the GLD pre action protocol response of 16 April 2024, and at [1] of the Summary Grounds of Defence - that the Decision was taken “pursuant to Section 179(2)(a)”. There is no evidence to support the claim that these were typographical errors and all of the evidence was that these statements reflected the true position. The SSHD’s Order was also that “further proceedings on” the Warrant be deferred, which is the language of section 179(2)(a) and positively not the language of 179(2)(b) or (c). Moreover, although the error made on 6 March is mentioned as such in both the Submission and Annex B, in both documents the matter is approached on the basis that the issue for the Minister was as to which “proceedings” ([2(b)] of the Submission) or “requests” ([9] of Annex B to the Submission) should be deferred, and that he had full discretion in this regard.

I therefore accept Mr Cooper’s submission that the Decision was clearly taken pursuant to section 179(2)(a) and therefore on an erroneous basis. However, this was not a pleaded ground of challenge and, in any event, the point does not advance the Claimant’s case beyond the pleaded grounds of challenge. The SSHD had vires under section 179(2)(b) to make the decision which she made and I do not accept that her decision would have been different had she decided to take it under section 179(2)(b) rather than 179(2)(a). The specific provision under which the Decision was made did not affect the substance of the decision itself. I come on to the question whether he would have made the same decision if he had been aware of the effect of Mr Evans’ point, below.

In their written submissions dated 9 July 2025, Counsel for the Claimant put forward the following arguments in relation to the Additional Point:

In the alternative, the Claimant argued that if the USA’s argument is correct “the SSHD must now apply Majera principles to the quashing order of Choudhury J and follow the order of the superior court”. The SSHD was aware that an error had been made and, in any event, the natural consequence of the quashing order is that she is required to withdraw the Decision and redetermine the matter: “Any reliance by the SSHD on an order that has subsequently been quashed by the High Court is constitutionally improper”. Should the SSHD not be willing to take this course voluntarily, the Court should make appropriate orders to this effect. In his Reply dated 20 July 2025 the Claimant disputed the SSHD’s written submission that the merits of the matter had been considered in any event and a reconsideration based solely on Choudhury J’s quashing order would lead to the same outcome.

In her written submissions dated 16 July 2025, the SSHD maintained the position outlined above. It was also argued that there was no injustice in her relying on District Judge Snow’s extradition order given that it resulted from a failure on the part of the Claimant’s legal representatives to draw the Request to the attention of the District Judge, and given that the SSHD had considered the merits in any event, balancing the relevant considerations in order to decide which of the Warrant and the Request to defer. The analysis contended for by the SSHD is based on an application of the terms of the statute and cannot, therefore, be contrary to the scheme of the 2003 Act or the intention of Parliament. The Claimant’s alternative submission, that the decision should be withdrawn or quashed and then retaken given the error which was made, was also disputed by the SSHD and it was submitted that there would be no point in a reconsideration based on the quashing order as the outcome would be the same.

In written submissions dated 14 July 2025, the USA maintained its position as outlined above. It was pointed out that the Claimant’s characterisation of District Judge’s decisions on 6 and 8 March 2024 was inaccurate and that N3 is not an analogous case to Majera or to the present case.