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

Ms Cumberland’s main argument in relation to Ground 1 was that the common law duty to act fairly or, at least, any requirement to permit representations to be made in relation to decisions under section 179, is impliedly excluded by the terms and scheme of the 2003 Act ((i) in Lord Neuberger’s formulation at [179] of Bank Mellat). She also questioned whether such a requirement was practical given the tight timetable for extradition orders and removal set by the 2003 Act and/or whether it was consistent with the special objective in extradition proceedings under Criminal Procedure Rule 50.2 ((ii) in Lord Neuberger’s formulation).

As far as the first argument is concerned, Ms Cumberland submitted that where Parliament intended the SSHD to consider representations on an issue, this was expressly stated in the 2003 Act. Where the contrary was intended, nothing was said in the statute. She relied, in particular, on sections 93 and 173. As noted above, section 93 applies after the request for extradition has been sent to the SSHD by the Magistrates’ Court pursuant to section 87. It provides, so far as material, as follows:

“(2)

The Secretary of State must decide whether he is prohibited from ordering the person's extradition under any of these sections—

(a)

section 94 (death penalty);

(b)

section 95 (speciality);

(c)

section 96 (earlier extradition to United Kingdom from other territory);

(d)

section 96A (earlier transfer to United Kingdom by International Criminal Court).

The requested person must be discharged if the answer to any of these questions is in the affirmative. If the answer to all of these questions is in the negative, subject to exceptions which are not relevant here, the person must be ordered to be extradited. Sections 93(5) and (6) then provide that:

“(5)

In deciding the questions in subsection (2), the Secretary of State is not required to consider any representations received by him after the end of the permitted period.

(6)

The permitted period is the period of [4 weeks] starting with the appropriate day.”

There is a similar provision at section 93(7)(b).

The other provision specifically relied on by Ms Cumberland, section 173 of the 2003 Act, requires the SSHD to issue codes of practice which deal with aspects of the exercise of police powers under Part 4 of the 2003 Act. Section 173(2) provides that if the Secretary of State proposes to issue such a code of practice she must:

“(a)

publish a draft of the code;

(b)

consider any representations made to him about the draft;

(c)

if he thinks it appropriate, modify the draft in the light of any such representations.”

Ms Cumberland also submitted that the scheme enshrined in the 2003 Act provides a coherent, exhaustive, statutory framework which is designed to minimise delay and which vests in the Magistrates’ Court and the High Court the jurisdiction to consider evidence and argument as to whether extradition is barred by specified statutory factors and/or would be incompatible with the ECHR rights of the individual. Indeed, the SSHD is specifically prohibited from considering human rights issues by section 70(10) and (11) of the 2003 Act, which I set out below under Ground 4.

For example, the effect of extradition on a requested person’s mental health, one of the key matters relied on by the Claimant, is plainly within the remit of the courts under section 91 of the 2003 Act. This issue was considered by District Judge Sternberg in the present case and it would be inimical to the structure and purpose of the 2003 Act for the SSHD to usurp or duplicate his functions or those of the High Court in the context of the appeal from the District Judge’s decision. Ms Cumberland’s position was also that, whilst the exercise of the SSHD’s discretion under section 179 is in principle amenable to judicial review, the statutory appeal process was and is the appropriate vehicle for the substance of the Claimant’s objections to be considered and resolved. That process is equipped to deal with the proportionality of the decision to extradite to the USA in light of the fact that there is now an order for extradition to Portugal.

Ms Cumberland added, at [11(d)] of her skeleton argument, that “the Claimant is unable to explain how any further representations would have made any material difference to the overall decision. It is for that reason that any judicial review claim would be subject to s. 31(2A) of the Senior Courts Act 1981 because the outcome would not have been substantially different had representations been permitted. The Minister had all the relevant information before him (in particular the US warrant (sic) and the Portuguese request (sic)) in order to make a lawful decision in accordance with s. 179 of the 2003 Act.”. (As noted above, it has emerged since the hearing that the Minister was not in fact shown a copy of the Request or the Warrant).

As far as issues of practicality are concerned, there are various statutory deadlines for the making of extradition orders and removal of the requested person set out in the 2003 Act. Rule 50.2 also provides that:

“50.2.

When exercising a power to which this Part applies, as well as furthering the overriding objective, in accordance with rule 1.3, the court must have regard to the importance of—

(a)

mutual confidence and recognition between judicial authorities in the United Kingdom and in requesting territories; and

(b)

the conduct of extradition proceedings in accordance with international obligations, including obligations to deal swiftly with extradition requests”.

Ms Cumberland also relied on the “general undesirability of prolonged representations and counter-representations at this stage [before an order to proceed is issued]” referred to by Lord Bingham CJ (as he then was) in R v SSHD ex parte Norgren [2000] 3 WLR 181 at 187C, albeit in the context of the pre 2003 extradition legislation. And she submitted (without disputing that there was such a practice) that the Claimant’s “reliance upon the practice of the Home Office to afford the Claimant an opportunity to provide an undertaking not to apply for a discharge does not bear upon the desirability of expedition in these cases. An anecdotal “longstanding practice” cannot bind the Secretary of State – nor is it capable of introducing into the coherent statutory code that is the 2003 Act a requirement for the SSHD to consider representations in circumstances where Parliament has decided that no such requirement should be imposed”.

Ms Cumberland submitted that in the present case the reality was that, as a result of District Judge Snow’s extradition order, there was a 10 day deadline for the extradition of the Claimant. This was the result of the failure of his representatives to draw the Request to the attention of the District Judge at the appropriate time. Moreover, at the time of the SSHD’s decision the Minister was not aware of the application to extend the deadline, still less District Judge Rai’s decision to grant it which was made on the day after the Decision.