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

The Annex B, purportedly to the Submission, which was included in the Bundle for the hearing is headed “JCU summary of Counsel’s suggested policy approach to the application of section 179(3) of the Extradition Act 2003”. I had expected, from what was said in the Submission, that Annex B would contain further and more detailed deliberations, specifically in relation to whether the Request or the Warrant should take precedence. The list of Annexes in the Submission itself also referred to Annex B as “Consideration of issues”, whereas the Annex B which was in the Bundle had a different title, and did not materially add to Annex A. It appeared to be a commentary on, or summary of, legal advice provided by Counsel in November 2007 as to the approach to section 179, with the contents of the Note of Advice itself redacted. That commentary was reflected in the “Competing requests” guidance at Annex A.

I therefore queried this at the beginning of the hearing but was told that the Annex B which was in the Bundle had been disclosed by the SSHD as being Annex B to the Submission. The hearing then proceeded on the basis that the correct Annex B had been disclosed and included in the Bundle. Having looked at the document again when I was writing this judgment, however, I doubted that this could be the case so I checked again by email to the parties dated 5 August 2025. I also queried whether it was correct that, as the SSHD had pleaded and had stated in her skeleton argument, the Warrant and the Request had been provided to the Minister for the purposes of the Decision. The reason for my question was that these documents were not listed as Annexes to the Submission and there was no evidence that they had been shown to the Minister.

This resulted in an email on 5 August from Ms Foot, on behalf of the Claimant, which stated that the Annex B which is in the Bundle is the document which was disclosed to the Claimant by the SSHD with her pre action protocol response dated 16 April 2024. She also noted that the list of Annexes to the Submission did not include the Request or the Warrant.

An email from a junior lawyer in the Government Legal Department (“GLD”), dated 6 August 2025 then stated that there appeared to have been “some confusion caused by the labelling of the annexes which has resulted in an omission in the bundle” and that, with apologies, the true Annex B – a document headed “Annex B: Consideration of issues” was now attached. In fact, the issue went beyond omission of the true Annex B from the Bundle. As I understand it, the document had not previously been disclosed at any point in the proceedings although it is now apparent that the GLD were quoting from it in their 16 April 2024 letter. The GLD email also said that, with regard to the SSHD’s pleaded case that the Minister had been provided with the Request and the Warrant:

“we would like to make a minor amendment. It does not appear that these warrants were in fact provided to the Minister. However, the substance of the warrants is set out within the analysis in “Annex B: Consideration of the issues”. Therefore our submission remains correct; the Minister had all of the relevant information before him- which included details of the warrants.”

The circumstances in which these inaccuracies emerged were extraordinary given that it appeared that all counsel had worked, throughout the proceedings, on the basis that Annex B to the Submission had been disclosed and that this was the document in the Bundle, and that the Minister had been provided with copies of the Request and the Warrant. They had made their submissions accordingly, including their written submissions on the Additional Point after the hearing. The GLD response did not appear to recognise this. The fact that the court had been misled in relation to the Request and the Warrant also, in my view, displayed a degree of insouciance which suggested a failure to appreciate the seriousness of the matter. My queries were about the information which was before the Minister when he made the Decision and therefore went to the heart of Grounds 1-3.

Unsurprisingly, the GLD email resulted in an email response from Mr Cooper and Ms Foot, later on 6 August, in which they complained that the failure to disclose the true Annex B, and the incorrect statements that the Request and the Warrant had been put before the Minister, were breaches of the duty of candour. They said that the Claimant’s legal team had relied on what they were told and that the misrepresentation of the evidential basis for the Minster’s decision had caused substantial prejudice to the Claimant who might otherwise have addressed the true factual position in the context of the proceedings. The SSHD should therefore reconsider the Decision on the correct factual basis. They went on to submit, however, that the correct Annex B in fact reinforces the submissions which they had made.

This prompted email submissions in reply from the GLD, on 7 August 2025, which reiterated the apology in relation to Annex B and denied any breach of the duty of candour. The email reiterated the contention that the fact that the Minister did not see the Warrant or the Request was immaterial given that the substance of the position was set out in Annex B, and the Claimant’s submissions that Annex B reinforced his case were each contested. There was also an email on behalf of Portugal, dated 7 August 2025, which drew attention to the fact that Portugal had addressed a number of the points in the true Annex B in any event.

I decided to take the true Annex B into account on the assumption that it is correct that it was submitted to the Minister with the Submission. I did not consider that this would cause any prejudice to the Claimant given that I would also take into account the written submissions of the parties in relation to the impact of Annex B on the issues I have to decide. The Claimant’s submissions before the disclosure of the true Annex B had also addressed passages from the GLD’s pre action protocol response which quoted Annex B, albeit without appreciating that this was the case.

I do not accept that it follows from what has happened, or from the fact that the Minister did not see the Warrant or the Request, that the Claim should be allowed. It remains the position that whether or not the Claim should be allowed depends on the merits of the issues addressed below, albeit now on a correct understanding of the facts. I also express some surprise that Counsel for both the Defendant and the Claimant apparently did not pick the points about Annex B and the other documents up at any stage. The mismatch is quite apparent on the face of the Submission and the GLD’s 16 April 2024 letter if they are read with care. I come back to this topic in the Conclusion at the end of this judgment.