Diogo Santos Coelho, R (on the application of) v Secretary of State for the Home Department [2025] EWHC 2293 (Admin)

[2025] EWHC 2293 (Admin)Case No AC-2024-LON-001762
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11/09/2025
Before
MR JUSTICE LINDEN
Between
THE KING (ON THE APPLICATION OF DIOGO SANTOS COELHO)ClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendantGOVERNMENT OF THE UNITED STATES OF AMERICAInterested Party(2) REGIONAL DEPARTMENT OF INVESTIGATIONS, PORTOInterested Party
Ben Cooper KC, Helen Foot and Amelia Nice (instructed by Hodge Jones and Allen Solicitors) for ClaimantMelanie Cumberland KC and Saoirse Townshend (instructed by Government Legal Department) for DefendantRichard Evans and Tom Williams (instructed by Crown Prosecution Service) for First Interested PartyStefan Hyman (instructed by Crown Prosecution Service) for Second Interested PartyHearing Hearing date: 2 July 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 11 September 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MR JUSTICE LINDEN
[1]The Claimant, who is a 25 year old Portuguese national, is currently the subject of two extradition claims. The first is a request which was made by the Government of the United States of America (“the USA”) on 23 March 2022 (“the Request”) and certified by the Defendant (“the SSHD”) on 31 March 2022 under Part 2 of the Extradition Act 2003. The second is an arrest warrant which was issued by the Regional Department of Investigations, Porto, (“Portugal”) on 14 February 2024 (“the Warrant”) and certified by the National Crime Agency on 27 February 2024 under Part 1 of the 2003 Act. Both the Request and the Warrant seek his extradition to stand trial on charges which substantially overlap in terms of the offending to which they relate.[2]On 28 July 2023, an order for the extradition of the Claimant to the USA pursuant to the Request was made by the SSHD, although his extradition is currently the subject of an appeal to the High Court which was stayed pending the outcome of these judicial review proceedings (“the Claim”) by order of Julian Knowles J dated 6 June 2024. On 6 March 2024, the Claimant gave consent for his extradition to Portugal pursuant to the Warrant and the Westminster Magistrates’ Court ordered his extradition to Portugal although this order was quashed, also by consent, by order of Choudhury J on 20 June 2025.[3]In the meantime, on 14 March 2024, the SSHD decided, pursuant to section 179(2) of the Extradition Act 2003, to defer proceedings on the Warrant until the Request has been disposed of. It is this decision (“the Decision”) which the Claimant, whose preference is to be extradited to Portugal rather than the USA, challenges.[4]The Claim Form was filed on 24 May 2024. On 19 December 2024, Choudhury J ordered a rolled up hearing of the Claimant’s application for permission with the determination of the Claim to follow immediately if permission were granted.

The issues for determination

[5]The Claimant advances five grounds of challenge which are reflected in a “List of Issues Agreed Between Claimant and Defendant”: i) The Decision was procedurally unfair in that the SSHD did not consider any representations, information or material provided by the Claimant or the Portuguese authorities which was relevant to the test to be applied (“Ground 1”); ii) The Decision was based on material errors of fact (“Ground 2”); iii) It was irrational by reason of a failure on the part of the Defendant to take into account relevant considerations (“Ground 3”); iv) It was in breach of section 6 of the Human Rights Act 1998 in that the SSHD did not take into account the impact of the Decision on the Claimant’s rights under Article 8 of the European Convention on Human Rights (“ECHR”) (“Ground 4”); v) The Decision was in breach of the obligations of the United Kingdom under the Council of Europe Convention on Action against Trafficking in Human Beings (“ECAT”) and/or Article 4 ECHR (“Ground 5”).[6]The agreed list of issues also identified as an issue the question whether the relief sought by the Claimant – a quashing order and an order that the Defendant reconsider her decision – should be granted, albeit no specific reason for refusing relief was identified.[7]In its Detailed Grounds of Defence, however, it was pleaded on behalf of the USA that it “question[ed] whether it would sensibly have been open to [the SSHD] to make” the order which the Claimant contends she ought to have made, given the terms of section 179(2) of the 2003 Act. That would have been an order under section 179(2)(c), deferring the extradition of the Claimant pursuant to the USA’s Request until Portugal’s Warrant had been “disposed of”. In law, the Warrant had already been “disposed of” as at the date of the Decision. Such an order therefore would not have made sense. Mr Evans’ submission was that, on the true construction of section 179, as at 14 March 2024 when the Decision was taken, it was not open to the SSHD to make an order under section 179(2)(c). The only decision which was open to her was the one which she took, whether or not she appreciated that this was the position at the time.[8]The skeleton arguments of the Claimant and the SSHD addressed the issues agreed between them. Neither therefore addressed Mr Evans’ point. Nor did Mr Cooper do so in his oral submissions on behalf of the Claimant. In her oral submissions on behalf of the SSHD, Ms Cumberland KC then stated for the first time that her first submission was that Mr Evans’ argument was correct. She developed this argument and submitted, in effect, that the Claim was academic and/or relief should be refused because there was no other decision which the SSHD could lawfully have taken at the time. Mr Cooper then addressed Mr Evans’ point in his reply but, with respect to him, it appeared that his answer would benefit from further consideration. As Ms Cumberland had materially altered her case, I gave him an opportunity to put his position in writing.[9]Written submissions on behalf of the Claimant, dated 9 July 2025, were then made. The USA and the SSHD submitted their replies on 14 and 16 July 2025 and the Claimant replied to them on 20 July 2025. I deal with what I will call “the Additional Point” below.[10]In addition to these issues in the Claim: i) There was an application by the Claimant, dated 20 June 2025, to rely on the following evidence: a letter of Joanna Stankiewicz, therapist, dated 3 June 2005; the Report of Dr B.A. Donner, Clinical Psychologist, dated 9 April 2025; the Report of Henrique Salinas, Attorney, dated 11 June 2025; and a letter of Ms Ahmetaj, therapist, dated 13 June 2025. This application was opposed by the SSHD and the USA. ii) Shortly after 4pm on the day before the hearing there was an application on behalf of the Claimant to admit a witness statement made by Mr Guy Mitchell of Hodge Jones and Allen LLP on 1 July 2025. This evidence was said to go to Ground 1. iii) On 5 August 2025, as a result of further probing from me whilst I was writing this judgment, it emerged that the court and the parties other than the SSHD had been misinformed as to what documents were before the SSHD when the Decision was made. This meant that the case had been pleaded, and submissions made at the hearing, on the basis of a materially inaccurate understanding of what information was taken into account by the SSHD. Further written submissions were then made by the parties as to the implications of this discovery at such a late stage in the proceedings.[11]I deal with these further issues below.

Summary of my decision

[12]For the reasons set out below I have decided to: i) give permission on Grounds 1 and 2 and allow the Claim on these Grounds; ii) give permission in part on Ground 3 and allow the Claim on this Ground in part; iii) refuse permission on Grounds 4 and 5; iv) reject the Additional Point; v) refuse the Claimant’s application to rely on additional evidence dated 20 June 2025, save for the report of Henrique Salinas dated 11 June 2025; vi) refuse the Claimant’s application to rely on additional evidence dated 1 July 2025.

Outline of the key features of the statutory framework for present purposes

[13]As is well known, the Extradition Act 2003 makes provision for extradition to Category 1 territories – EU Member States including Portugal - under Part 1. Part 2 deals with extradition to Category 2 territories i.e. other States with which the United Kingdom has extradition arrangements, including the USA.[14]In a Part 1 case, the process begins with the judicial authority issuing an arrest warrant which then requires to be certified under section 2 by the National Crime Agency. In a Part 2 case it begins with a request for extradition which requires to be certified by the SSHD pursuant to section 70.[15]In each case, in England and Wales the question whether the requested person should be extradited is dealt with in the first instance in the Magistrates’ Court. In a Part 1 case, the District Judge may order extradition but in a Part 2 case they are required to send the decision to the SSHD, pursuant to section 87(3), for a decision as to whether the person should be extradited. Under section 93, the SSHD is then required to decide whether she is prohibited from ordering the person’s extradition by specified sections of the 2003 Act including, for example, section 94 which prohibits extradition if the person faces the death penalty unless an appropriate written assurance is given by the requesting State. The District Judge’s and SSHD’s decisions are subject to appeal to the High Court and, under both Parts, there may be an appeal to the Supreme Court on a point of law of general public importance.[16]Parts 1 and 2 of the 2003 Act set out parallel processes for determining whether the requested person should be extradited to the requesting State, specifying in some detail what should happen in the light of each of the possible outcomes at each stage of the process. This includes dealing with the situation where there is more than one request or arrest warrant in relation to the same person. Sections 44 and 48 deal with the powers of the District Judge in the Magistrates’ Court and what they are required to do where they are informed that there are competing Part 1 warrants. Section 126 deals with what the SSHD may do where there are competing Part 2 requests, and section 179 deals with the situation where there is a Part 1 warrant and a Part 2 request in relation to the same person i.e. the situation which arose in the present case.[17]Section 179 of the 2003 Act provides, so far as material, as follows:
“179 Competing claims to extradition (1) This section applies if at the same time— (a) there is a Part 1 warrant in respect of a person, a certificate has been issued under section 2 in respect of the warrant, and the person has not been extradited in pursuance of the warrant or discharged, and (b) there is a request for the same person's extradition, a certificate has been issued under section 70 in respect of the request, and the person has not been extradited in pursuance of the request or discharged. (2) The Secretary of State may— (a) order proceedings (or further proceedings) on one of them (the warrant or the request) to be deferred until the other one has been disposed of, if neither the warrant nor the request has been disposed of; (b) order the person's extradition in pursuance of the warrant to be deferred until the request has been disposed of, if an order for his extradition in pursuance of the warrant has been made; (c) order the person's extradition in pursuance of the request to be deferred until the warrant has been disposed of, if an order for his extradition in pursuance of the request has been made. (3) In applying subsection (2) the Secretary of State must take account in particular of these matters— (a) the relative seriousness of the offences concerned; (b) the place where each offence was committed (or was alleged to have been committed); (c) the date when the warrant was issued and the date when the request was received; (d) whether, in the case of each offence, the person is accused of its commission (but not alleged to have been convicted) or is alleged to be unlawfully at large after conviction.” (a) there is a Part 1 warrant in respect of a person, a certificate has been issued under section 2 in respect of the warrant, and the person has not been extradited in pursuance of the warrant or discharged, and (b) there is a request for the same person's extradition, a certificate has been issued under section 70 in respect of the request, and the person has not been extradited in pursuance of the request or discharged. (a) order proceedings (or further proceedings) on one of them (the warrant or the request) to be deferred until the other one has been disposed of, if neither the warrant nor the request has been disposed of; (b) order the person's extradition in pursuance of the warrant to be deferred until the request has been disposed of, if an order for his extradition in pursuance of the warrant has been made; (c) order the person's extradition in pursuance of the request to be deferred until the warrant has been disposed of, if an order for his extradition in pursuance of the request has been made. (3) In applying subsection (2) the Secretary of State must take account in particular of these matters— (b) the place where each offence was committed (or was alleged to have been committed); (c) the date when the warrant was issued and the date when the request was received; (d) whether, in the case of each offence, the person is accused of its commission (but not alleged to have been convicted) or is alleged to be unlawfully at large after conviction.”
[18]As Mr Cooper emphasised, section 44 makes materially the same provision for the situation where a District Judge who is dealing with a warrant is informed that another warrant has been issued in respect of the same person. In such a case the judge may order proceedings on, or extradition pursuant to, the warrant under consideration to be deferred until the other warrant has been disposed of. It is also specified in section 44(7) that, in deciding this matter, the judge must take into account, in particular, the same matters as the SSHD is required to consider under section 179(3) of the 2003 Act. The approach is essentially the same under section 126 where there are competing Part 2 requests.[19]In characteristically prescriptive fashion sections 180 and 181 follow up, respectively, with what is to happen where an order is made pursuant to section 179(2)(a) and then (b) or (c): i) In a case where there was an order pursuant to section 179(2)(a), deferring proceedings on an extradition claim until the other extradition claim has been disposed of, and the other claim is disposed of in the requested person’s favour, there is a 21 day deadline for a judge to make an order for proceedings in the deferred claim to be resumed. If the deadline is not met, the requested person must be discharged (section 180). ii) In a case where there was an order pursuant to section 179(2)(b) or (c), deferring the extradition of the requested person until another extradition claim in respect of him has been disposed of, and the other claim is disposed of in the requested person’s favour, there is a 21 day deadline for a judge to order that the person’s extradition on the extradition claim ceases to be deferred. If the deadline is not met, the requested person must be discharged (section 181). The facts Background

The facts

[20]The Claimant was born in Portugal. In 2009, at the age of 9, he moved from Portugal to the United Kingdom with his parents and his half-sister. The Claimant’s evidence is that he had an unstable home life and witnessed domestic violence by his father towards his mother. His school attendance was poor, as a result of which his father was prosecuted by the local authority and convicted. He did not obtain any GCSEs.[21]In November 2016, aged 16, the Claimant was taken back to Portugal by his father to live there, after his parents separated. His mother remained in the United Kingdom. She was suffering from Huntingdon’s disease from which she died on 31 March 2024.

The request for the extradition of the Claimant by the USA

[22]On 6 May 2021, a warrant for the arrest of the Claimant was issued by the District Court for the Eastern District of Virginia, in the USA and, on 21 December 2021, an Interpol red notice relating to him was circulated by the US National Central Bureau in Washington.[23]On 31 January 2022, on the basis of the Interpol notice, the National Crime Agency issued a provisional arrest certificate pursuant to section 74B(2) of the 2003 Act and, later that day, the Claimant was arrested at Gatwick on an inbound flight from Portugal. He was apparently intending to visit his mother here.[24]The Claimant was produced before Westminster Magistrates’ Court on 1 February 2022. He did not consent to extradition to the USA and was remanded in custody pending the preparation of the extradition request. On 29 July 2022, the Claimant was granted bail but was then remanded in custody pending an appeal by the USA, which was dismissed on 2 August 2022.[25]On 23 March 2022, the full USA extradition request was issued (“the Request”). The Request was certified by the SSHD on 31 March 2022 pursuant to section 70 of the 2003 Act.[26]The indictment on which the Claimant is intended to be tried comprises 6 counts: conspiracy to commit and/or to aid and abet device fraud (Count 1); using or trafficking in an unauthorised access device (Count 2); possession of fifteen or more unauthorised access devices (Count 3); unauthorised solicitation of a person for the purposes of offering an access device (Counts 4 and 5); and aggravated identity theft (Count 6). He faces up to 10 years’ imprisonment on each of Counts 1-5 if convicted, and up to 2 years on Count 6.[27]As explained in the affidavit, in support of the Request, of Ms Carina Cuellar, Assistant US Attorney for the Eastern District of Virginia, dated 17 March 2022, the US authorities allege that, from around 1 January 2015 to 31 January 2022, the Claimant controlled and was the chief administrator of www.raidforums.com (“RaidForums”). RaidForums was a website hosted on a server located outside the USA, which the Claimant operated with the assistance of other website administrators. He described himself as the website’s ‘owner’ and he was known online as ‘Omnipotent’, ‘Downloading’, ‘Shiza’ and ‘Kevin Maradona’.[28]RaidForums was a platform on which members could sell and purchase databases of hacked personal details, hacking tools, and a range of illegal services including hacking services. The platform included a number of different forums, such as ‘Cracking’, ‘Leaks’ and ‘Marketplace’, and the ‘Leaks’ forum had a sub-forum called the ‘Leaks Market’, which described itself as a ‘place to buy/sell/trade databases and leaks’, including bank details, card verification codes, card expiration dates, and usernames and passwords for access to online accounts issued by US entities.[29]It was possible for a person to access RaidForums without being a member, although membership was required if a person was to be able to sell or purchase items. RaidForums sold ‘credits’ to members, which granted them access to privileged areas of the website and enabled them to ‘unlock’ and download stolen personal data, often from compromised databases such as customer and subscriber lists from large US companies. Credits could be purchased with cryptocurrency, although from November 2021 it was also possible to pay through PayPal.[30]It is alleged that the Claimant also offered an ‘Official Middleman Service’ on RaidForums in return for a fee. He would accept cryptocurrency from the purchaser and stolen personal details from the seller, verify the contents of the file(s) and liaise with both parties. Once they were content, he would release the funds to the seller and the stolen data to the purchaser.[31]It is estimated that, from June 2016, more than 10 billion unique records of individuals living in the United States and elsewhere were trafficked through RaidForums.[32]Mr Cooper confirmed that the Claimant does not deny the conduct alleged. His case is that, from 2014 until around 2017, by which time he was in Portugal, he was groomed by adults online who coerced him into creating the RaidForums website. The decision of the Westminster Magistrates’ Court in relation to the USA’s request for the extradition of the Claimant[33]The extradition hearing in relation to the Request took place before District Judge Sternberg between 27 February and 1 March 2023, when the evidence was heard, and then on 25 April 2023 when closing submissions were made.[34]The Claimant was represented by Mr Cooper and Ms Nice. They argued that his extradition was barred on multiple grounds. These included that it would be contrary to section 81(b) of the 2003 Act (i.e. he would face prejudice by reason of nationality) and that it was barred by section 83A of the 2003 Act (i.e. on the basis that a substantial measure of his relevant activity took place in the United Kingdom, and extradition to the USA would not be in the interests of justice). They also argued that his extradition to the USA would be contrary to various articles of the ECHR namely Articles 3, 5, 6, 8 and 14; and that it would be contrary to section 91 of the 2003 Act (i.e. that his extradition would be unjust or oppressive by reason of his mental health).[35]On 7 June 2023, District Judge Sternberg handed down a detailed written judgment, rejecting the Claimant’s objections to extradition and sending his case to the SSHD pursuant to section 87(3) of the 2003 Act. For present purposes it is relevant to note that: i) The District Judge accepted that the Claimant has a diagnosis of autism which was first identified in the course of the extradition proceedings. The expert witnesses agreed that he is intelligent and communicative and he was described by them as “high functioning”. However, he would find incarceration in a prison in the USA a challenging and potentially frightening and bewildering experience, and there was a high risk of deterioration in his mental health in the event of his surrender. ii) The experts also agreed that the Claimant had taken a decision to end his own life in the event of his extradition to the USA, potentially following the imposition of a long sentence. This was a decision which he had taken consciously rather than because of the effect of an underlying mental illness. The District Judge accepted that although the current risk of suicide was low, the Claimant would be at high or elevated risk of suicide in the event of extradition to the USA. He had thought through taking his own life in a rational and hyper-logical way such that, once he has arrived at that decision, it will be difficult for him to change his mind. iii) The District Judge said that he could not conclude that the Claimant was ‘groomed’ by older people into starting to commit the offences alleged. To do so would be to trespass into matters which were for the trial court to determine in the light of all of the evidence on the issue. Nor could he determine whether the Claimant was a victim of trafficking or modern slavery. iv) In the context of the arguments about forum under section 83A of the 2003 Act, the District Judge accepted that, although there was reference in the indictment to the Claimant being the controller and chief operator of RaidForums from at least or around 1 January 2015, the bulk of the criminal activity alleged against the Claimant was committed when he was living in Portugal rather than when he was in the United Kingdom. In particular, Count 1 spans approximately 4.5 years from June 2016 to the end of January 2022 and the specific alleged overt acts took place from 6 June 2018 onwards, whereas the Claimant was taken back to Portugal by his father in November 2016. The activities alleged in Counts 2-6 began later and finished earlier than the time span for Count 1. Any relevant activity which did occur in the United Kingdom was therefore minor, rather than a substantial part of what was alleged against the Claimant. v) The Warrant had not been issued at the time of the District Judge’s decision. However, in the context of the Claimant’s argument that his extradition to the USA would be contrary to Article 8 ECHR because of the possibility of a trial in Portugal, the District Judge said that he did not consider that it was appropriate to speculate as to whether the Claimant could be tried there. In any event, he had no power to determine whether the Claimant ought to be tried in Portugal or to enforce such a decision. The Claimant was not entitled to choose where he should be prosecuted and, accordingly, this consideration could not be given a great deal of weight.[36]On 28 July 2023, the SSHD ordered the extradition of the Claimant to the USA pursuant to section 93(4) of the 2003 Act.

The referral of the Claimant under the National Referral Mechanism

[37]On 12 April 2023, the Metropolitan Police referred the Claimant’s case to the Single Competent Authority (“SCA”) pursuant to the National Referral Mechanism (“NRM”) for potential victims of trafficking and modern slavery. As is apparent, this was after the close of the evidence at his extradition hearing but before closing submissions. The Claimant’s proof of evidence in support of his case that he was a victim of modern slavery, dated 12 July 2023, recounts that he was socially isolated and there were difficulties at home, including the illness of his mother who was also subjected to domestic violence by his father. At the age of 11 or 12 he developed an interest in coding in the context of playing video games and, at the age of 14, he was befriended online and, in effect, groomed into activities associated with the RaidForms website.[38]On 1 September 2023, the SCA found that there were reasonable grounds to suspect that the Claimant was a victim of modern slavery. As will be apparent, this was after the SSHD had ordered his extradition to the USA.[39]On 22 April 2024, so after the SSHD’s decision under section 179, the SCA issued a positive conclusive grounds decision under the NRM, finding on the balance of probabilities that the Claimant is a victim of modern slavery. The decision states that “we found the following types of exploitation occurred: Forced Criminality (Online) – United Kingdon and Portugal – approx.. 2014 -31/01/2022.” The decision refers to the definition of modern slavery and exploitation attached in an attached Annex, which defines forced criminality as:
“the exploitation of a person to commit activities that may include….benefit fraud and/or other types of fraud…(or) other similar activities which are subject to penalties and imply financial gain. As noted in European Directive 011/36/EU, these must be understood as a form of forced labour or services as defined in the 1930 ILO Convention (No. 29) concerning Forced or Compulsory Labour. Therefore, the exploitation of a person for criminal activity only falls within the scope of the definition of trafficking in human beings when all the elements of forced labour or services occur.”

The Claimant’s appeal against the order for his extradition pursuant to the Request

[40]On 10 August 2023, the Claimant appealed to the High Court against the decision of District Judge Sternberg. Perfected Grounds of Appeal were filed on 25 October 2023. These challenge the Claimant’s extradition as being contrary to section 83A of the 2003 Act, Articles 3, 4 and 8 ECHR and section 91 of the 2003 Act.[41]On 27 February 2024, the Claimant’s representatives notified the Crown Prosecution Service (“CPS”) of the Warrant which had recently been issued by Portugal and applied to the Administrative Court for directions in the appeal proceedings. The SSHD was not copied in to this correspondence. The Claimant explained that the SSHD would now have to consider two competing claims for extradition under section 179 of the 2003 Act. It was asserted that this decision would “need to take priority over the extant appeal”. Directions were sought “for counsel to first address the issue of competing extradition requests and the timing of the statutory Ministerial decision that will now be made pursuant to section 179 of the Extradition Act 2003 and second, …..to permit the Applicant to amend his grounds of appeal to address this factual development”.[42]On 4 March 2024, the CPS indicated on behalf of the USA that the SSHD had not yet made a decision under section 179 of the 2003 Act, that there were no grounds to stay the appeal proceedings and that permission to amend the Grounds of Appeal was opposed. However, on 7 March 2024, the Administrative Court gave the Claimant’s representatives 7 days to formulate amended Grounds of Appeal. This deadline was then extended by Jay J to 22 March 2024.[43]On 22 March 2024, the Claimant filed draft Amended Grounds of Appeal. These argued that extradition to Portugal was now a proportionate alternative to extradition to the USA and that it would therefore be disproportionate to extradite the Claimant to the USA and incompatible with Article 8 ECHR. If he were extradited to the USA, the Claimant would be in an alien prison environment and a long way from family and friends who could support and assist him given his vulnerability arising from his autism. The draft Amended Grounds went on to argue that the availability of extradition to Portugal served to reinforce, in various respects, the existing Grounds of Appeal based on Articles 3 and 8 ECHR/forum, and section 91 of the Extradition Act 2003.[44]In a response dated 15 April 2024, the USA opposed any stay of the appeal. It also argued that the fact that the Claimant had consented to his extradition to Portugal did not make any difference to the analysis of his appeal against extradition to the USA and/or would not have resulted in the District Judge deciding the questions before him differently: see section 104(4)(b) of the 2003 Act.[45]On 16 April 2024, Jay J refused the Claimant’s application for permission to appeal on the papers. In relation to the proposed amended grounds of appeal, Jay J said this:
“In my view, A must raise these points in JR proceedings rather than in the current forum. In essence, these Amended Grounds are directed to the exercise of the SSHD’s discretion…I cannot see how A is entitled to contend in these appeal proceedings (whether here or below) that they should somehow be stayed. The correct course, if any, is to apply to the JR court and obtain interim relief there.”
[46]On 24 May 2024, the Claimant filed the Claim and applied for urgent interim relief in the form of an order staying his appeal against extradition to the USA pending the final determination of the judicial review proceedings. On 6 June 2024, Julian Knowles J granted that application and vacated the hearing of the Claimant’s renewed application for permission to appeal which had been listed for 11 June 2024.

The Portuguese arrest warrant

[47]On 14 February 2024, the Regional Department of Investigations in Porto, Portugal, issued the Warrant.[48]The Warrant relates to allegations of money laundering (punishable by up to 12 years in prison), tax fraud (up to 8 years) and illegal access (up to 5 years). It is based on the Claimant’s administering of RaidForums over the period between 2016 and his arrest at the end of January 2022, and it sets out essentially the same activity as is set out in the Request, albeit in less detail. The illegal access charge is essentially an allegation of computer hacking and data theft. However, in relation to the allegation of money laundering, the Warrant states that credits amounting to a total of €650,682 derived from RaidForums were received in a Portuguese Banco Santander account in the Claimant’s name; and, in relation to tax fraud, it notes that the Claimant “has never been fiscally registered for engaging in any business activities and has not submitted any income tax declarations”.[49]On 27 February 2024, the Warrant was certified by the National Crime Agency pursuant to section 2(7) of the 2003 Act. The order for the extradition of the Claimant pursuant to the Warrant and the Claimant’s second claim for judicial review[50]On 6 March 2024, the Claimant was arrested under the Warrant. He appeared before District Judge Snow at the Westminster Magistrates’ Court and consented to his extradition to Portugal pursuant to section 45 of the 2003 Act. Had the District Judge been informed of the Request he would have been required by section 51 of the 2003 Act not to order the Claimant’s extradition until he was informed what order had been made by the SSHD under section 179(2). However, it was mistakenly assumed that the court was already aware of the Request, and the District Judge was therefore not informed of it by either party. Without objection, the contents of the Warrant were explained to the Claimant, as were the consequences of him consenting to extradition. He confirmed that he consented and he read and signed the relevant document. The District Judge then signed the consent order and ordered the Claimant’s surrender pursuant to section 46(6) of the 2003 Act.[51]Later in the hearing on 6 March, Mr Cooper relied on the Request when addressing the District Judge on the question of bail and he took the court to section 179. He invited the District Judge to revoke the order. The District Judge confirmed that he was unaware of the Request and invited submissions as to whether he had the power to do so. His conclusion was that he did not have the power to reopen the extradition order which he had made. Instead, he ordered that the Claimant should not be removed pending the SSHD’s decision under section 179. The Claimant was remanded in custody.[52]On 8 March 2024, there was a further hearing before District Judge Snow to consider whether the extradition order which he had made two days earlier could be reopened. Mr Cooper invited him to set his order aside but he concluded that there was no lawful basis for him to do so at that stage: see R (Klimento) v Westminster Magistrates’ Court [2012] EWHC 2051 (Admin); [2013] 1 WLR 420. The Claimant was readmitted to bail.[53]On 16 July 2024, the Claimant filed a second claim for judicial review, AC-2024-LON-002674 (“Claim 2”), challenging the decisions of District Judge Snow on 6 March to order his extradition to Portugal and/or to refuse to reopen that Order on 8 March. The grounds of challenge were that the District Judge’s decision was ultra vires in that he should be deemed to have been informed of the Request for the purposes of section 51 of the 2003 Act and therefore was prohibited from making an extradition order (“Ground 1”); that his Order resulted from a procedural irregularity in that the District Judge was informed of the Request and refused to rescind the extradition order (“Ground 2”); that the decision of the District Judge was an unlawful fetter on the SSHD’s discretion under section 179 (“Ground 3”); and that the District Judge erred in law in failing to rescind his earlier decision at the hearing on 8 March 2024 (“Ground 4”).[54]As noted above, it was on 19 December 2024 that Choudhury J directed a rolled up hearing, which was to be in respect of both of the Claim and Claim 2. However, by consent, on 20 June 2025 Choudhury J ordered that the 6 March order of District Judge Snow be quashed. Claim 2 is therefore no longer “live”. The basis for the consent order was that the District Judge had confirmed, in a witness statement dated 15 August 2024, that he was unaware of the Request when he made his extradition order. When Mr Cooper referred to the Request after the order had been made, he did not draw the case of R (Berners) v Westminster Magistrates’ Court [2010] EWHC 1010 (Admin), to the District Judge’s attention. The judge had therefore been unaware that he had the power to rescind his Order but he now agreed that Berners would have enabled him to do so on 6 March. This was agreed by the parties to amount to the District Judge (through no fault of his own) proceeding on a mistaken factual premise, amounting to a procedural irregularity, (i.e. that there was no other extradition claim in respect of the Claimant) and on an erroneous basis in law (i.e. that he did not have a power to reopen the extradition order at the hearing on 6 March 2024). The evidence about the SSHD’s decision on 14 March 2024 The submission to the Minister for Security

The evidence about the SSHD’s decision on 14 March 2024

[55]On 13 March 2024, a Senior Extradition Caseworker at the Home Office made a written submission to the Minister of State for Security regarding the Warrant and the Request (“the Submission”). The Submission had 5 annexes which included a copy of the judgment of District Judge Sternberg dated 7 June 2023 (Annex E). Contrary to what is pleaded by the SSHD at [9(d)] of her Detailed Grounds of Defence, and stated at [11(d)] of her skeleton argument the documents put before the Minister did not include the Request or the Warrant. Annexes C and D were draft letters to the Interested Parties and are therefore not material for present purposes.[56]Under the heading “Issue”, the Submission stated that competing requests for the extradition of the Claimant had been received from the United States and Portugal and that it was for the Minister to decide which request should be given precedence. The Minister was also told that the matter was complicated by the fact that, on 6 March 2024, the District Judge had ordered the Claimant’s extradition to Portugal because he was unaware of the SSHD’s Order of 28 July 2023 that the Claimant be extradited to the USA. However, the impression given by the Submission was that the Minister had full discretion as to which extradition claim should take precedence.[57]The “Recommendation” was that the Minister agree that the Request take precedence. He was told that a decision was required by 14 March 2024 because, after this date, the Claimant could apply to be discharged in relation to the Warrant. A footnote explained that:
“The judge hearing the Portuguese request was not made aware of the US request, and therefore accepted Santos Coelho’s consent to extradition. The legislation does not permit this error to be rectified. As such, Coelho must be surrendered to Portugal by 15 March 2024; if he is not, Coelho may apply to be discharged from extradition proceedings pertaining to Portugal. See Annex B for details.”
(emphasis added)[58]As noted above, in fact District Judge Snow had ordered that the Claimant should not be extradited until such time as the SSHD had made a decision under section 179. So the SSHD was not under any specific time pressure.[59]The Submission then said, under the heading “Considerations”, that where there are competing Part 1 and Part 2 requests “the Secretary of State may decide which one takes precedence”. It stated that section 179(3) of the 2003 Act “sets out four obligatory but not exhaustive issues which the Secretary of State must take into account when deciding which request should take precedence”. These were then listed and it was stated that “More detail is at Annex A together with information (based on Counsel’s advice in a previous case) on other issues which may be considered”.[60]The Submission went on to say, at [5]:
“Our full consideration is at Annex B. We assess the following as the key points: • Both offences concern identical allegations and it is impossible to adjudicate which request should take precedence on the known facts in each request. • Santos Coelho is a Portuguese national who was residing in his home country at the time of his alleged offending. The stated victims and witnesses in each request, however, are based in the US; on its face, a trial in the US would thus be more appropriate. • The US’s provisional request for Santos Coelho was made almost two years prior to the Portuguese request. • Santos Coelho stands accused in both requests. We have also deliberated on Santos Coelho’s consent to being extradited to Portugal. This is a neutral factor in our view.”
(emphasis added) • Both offences concern identical allegations and it is impossible to adjudicate which request should take precedence on the known facts in each request. • Santos Coelho is a Portuguese national who was residing in his home country at the time of his alleged offending. The stated victims and witnesses in each request, however, are based in the US; on its face, a trial in the US would thus be more appropriate. • The US’s provisional request for Santos Coelho was made almost two years prior to the Portuguese request. • Santos Coelho stands accused in both requests.[61]The highlighted statements in this passage are alleged by the Claimant, under Ground 2, to be material errors of fact.[62]After the section on Considerations, the Submission referred to the positive reasonable grounds decision by the SCA on 1 September 2023:
“The Home Office accepted there were reasonable grounds to believe Santos Coelho was exploited between 2014 and 2021 in relation to the development of the website facilitating his alleged criminality in both requests. The Conclusive Grounds decision is currently outstanding. The District Judge, hearing the US extradition request, stated he was unable to make a finding on whether Santos Coelho had been groomed, as claimed, and that it is a matter for the competent authority (see paragraph 148 of judgment in the US request, Annex E)”
.

Annex A to the Submission

[63]Annex A is headed “Competing Requests”. It provided further guidance on sections 126 and 179 of the 2003 Act, and a copy of section 179. Under the heading “Statutory considerations” the following was stated:
“6. Consideration is mandatory of the four matters set out in sections 126(3) and 179(3) and it is those matters which take primacy in deciding which of two requests takes precedence. (i) relative seriousness of the offences: this will usually determine which claims takes (sic) precedence. (emphasis added) (ii) location of offences: the significance may be less apparent and the factors to be weighed may include the nationality of the person concerned; the whereabouts of any witnesses; and the location of any victim(s). (iii) respective dates of receiving the requests: which claim was made first and how far it has progressed are factors which can be considered; but it may also be right to make some allowance for the more onerous requirements which category two territories have to meet. (iv) accused or convicted: the significance may involve an assessment of such matters as whether the person here has been convicted abroad in his absence; if so, whether he has any entitlement to retrial; and how a decision in favour of one State might prejudice the other. In some cases, it may be sensible or necessary to make enquiries of both States.” (i) relative seriousness of the offences: this will usually determine which claims takes (sic) precedence. (emphasis added) (ii) location of offences: the significance may be less apparent and the factors to be weighed may include the nationality of the person concerned; the whereabouts of any witnesses; and the location of any victim(s). (iii) respective dates of receiving the requests: which claim was made first and how far it has progressed are factors which can be considered; but it may also be right to make some allowance for the more onerous requirements which category two territories have to meet. (iv) accused or convicted: the significance may involve an assessment of such matters as whether the person here has been convicted abroad in his absence; if so, whether he has any entitlement to retrial; and how a decision in favour of one State might prejudice the other. In some cases, it may be sensible or necessary to make enquiries of both States.”
[64]Under the heading “Matters which may be taken into account” the following was stated:
“7. Where the decision as to precedence is not settled by the relative seriousness of the offences and the other factors set out above, other matters which may bear some relevance on determining which claim should take precedence may be: (i) In accusation cases, whether there is any risk that an offence might become statute barred if another claim for extradition is given precedence. (ii) In accusation cases, whether there exists a real risk that according to precedence to one claim would effectively end the prospect of any trial or substantially prejudice any trial in the other territory. (iii) In accusation cases, the extent to which conduct alleged in a request or Part 1 Warrant is subsumed in a competing request or Part 1 Warrant. (emphasis added) (iv) Whether there is any information to suggest that an allegation is of particular significance or sensitivity in either territory. (v) Whether it is manifestly apparent that a claim is defective and incapable of giving rise to extradition. (vi) Any indication by the respective territories that they are capable of resolving the question of precedence by co-operation. 8. Where the decision is not clear cut, it may be necessary or worthwhile asking specific questions of (as distinct from inviting general representations from) the States concerned. Those States might also be asked to explore the scope for agreeing between themselves the question of precedence.”
(emphasis added) (i) In accusation cases, whether there is any risk that an offence might become statute barred if another claim for extradition is given precedence. (ii) In accusation cases, whether there exists a real risk that according to precedence to one claim would effectively end the prospect of any trial or substantially prejudice any trial in the other territory. (iii) In accusation cases, the extent to which conduct alleged in a request or Part 1 Warrant is subsumed in a competing request or Part 1 Warrant. (emphasis added) (iv) Whether there is any information to suggest that an allegation is of particular significance or sensitivity in either territory. (v) Whether it is manifestly apparent that a claim is defective and incapable of giving rise to extradition. (vi) Any indication by the respective territories that they are capable of resolving the question of precedence by co-operation.[65]There was then a section on which matters may not be taken into account which stated that the decision should not rest on political considerations:
“10. Nor should Ministers take into account matters (such as human rights) which are properly for the extradition courts to decide. (emphasis added) 11. It is not for Ministers to establish the sufficiency of particulars or evidence adduced in support of competing claims – those also being matters for the court. But Ministers might be justified in giving precedence to one claim over another if one was so defective as to be hopeless.”
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[66]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.[67]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.[68]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.[69]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.”[70]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.[71]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.[72]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.[73]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.[74]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.

The contents of Annex B, so far as is material

[75]The true Annex B does indeed contain a more detailed consideration of the issues. It begins by listing the charges which are the subject of the Request and then summarising what is alleged against the Claimant in relation to RaidForums ([1]-[5] of Annex B). At [6] and [7] it notes the then position in those proceedings i.e. that an extradition order had been made on 28 July 2023 and was the subject of a pending appeal. At [8] it then states the following in relation to the Warrant:
“Meanwhile, Portugal has requested Santos Coelho for the same crime, over the same period of time. There he is charged with money laundering, tax fraud, and illegal access. .. All of the victims referenced in the request, either a person or a business, are based in the US. The request does, however, add that Santos Coelho received approximately €646,000 (approximately £552,000), from various sources, into his bank account in Portugal. The request notes that Santos Coelho has never been fiscally registered for engaging in any business activities in Portugal nor has he submitted any income-tax declarations.”
(emphasis added)[76]Under the heading “Key points for consideration” Annex B deals, in turn, with each of the four matters which the Minister was required by section 179(3) to consider. So far as material to the Claimant’s grounds of challenge, at [10] it states the following:
“Relative seriousness of the offences concerned. As per the guidance (Annex A), the relative seriousness of the offences will usually determine which claims precedence. Both offences concern identical offending. However, as recorded in the Portuguese request, all the victims are based in the US. But both requests note that there are purported victims based outside the US. Neither request provides further detail or specific figures. It is unknown if any victims were based in Portugal. The period of alleged offending is also the same. (underlining added) In terms of monies involved, the Portuguese request asserts the equivalent of approximately £552,000 came into Santos Coelho’s (Portuguese) bank account, while the US request claims the Raid Forums website charged the equivalent of £379,000 for the stolen details. Thus, the requests are referring to different sums (personal versus collective) and the reasons behind the mismatch are unclear. As such, with the information available and given the identical facts, we are unable to fairly determine which request is relatively more serious and we must consider whether the other matters are determinative.”
(emphasis added)[77]In relation to the next statutory consideration, [10] went on to say the following: “The place where each offence was committed or allegedly committed. Santos Coelho was residing permanently in Viseu, Portugal, at the time of the allegations. He is a Portuguese national and it can be reasonably argued that this is favourable to the request from his home country. However, the guidance invites us to consider the whereabouts of witnesses and location of any victims. In both requests, the stated victims are exclusively based in the US, but neither request provides further detail or specific figures for the purported victims. It is unknown whether any victims are based in Portugal. The witnesses, including law-enforcement officials, appear to be based entirely in the US in both requests. (The primary investigation, although international in scope, was led by the FBI and the US Secret Service.) Thus, if prosecution were to proceed in Portugal, the transmission of evidence and attendance of witnesses could potentially cause issues, thereby vitiating the proper and fair administration of justice. This matter, then, weighs in favour of the US request.” (underlining added)[78][11] of Annex B added, after dealing with each of the mandatory statutory considerations:
“We have also considered the fact that Santos Coelho has opposed extradition to the US and consented to his extradition to Portugal. In our view, this is a neutral point, and while we appreciate the benefit of the latter from a procedural perspective, in our view the proper emphasis should be ensuring the most just outcome and not the most convenient. This, then, is a neutral factor.”
[79]In relation to the Additional Point (the argument that no other decision was open to the SSHD at the time of the decision) I note that [9] of Annex B said:
“Santos Coelho was arrested, by appointment, in respect of the Portuguese request on 6 March 2024 and appeared at Westminster Magistrates’ Court on the same day, where he consented to his extradition to Portugal. The judge was not made aware of the US request and, accepting Santos Coelho’s consent, duly ordered extradition to Portugal. Under the Extradition Act 2003, the Order for Santos Coelho’s extradition to Portugal stands, and the Secretary of State may order deferral of one of the requests. The Home Office’s process for competing requests, it should be noted, was followed and operated appropriately in this case; there is no provision in the Act which permits the correction of such anomalous errors.”
(emphasis)[80]I note that neither this passage nor the relevant parts of the Submission (referred to at [57], above) made clear what, precisely, the error and its consequences were. The Minister was also given the impression, in the Submission and Annex B, that nothing could be done about it.

The SSHD’s Order

[81]The SSHD’s Order is signed by the Security Minister and states as follows:
“ORDER PURSUANT TO SECTION 179(2) OF THE EXTRADITION ACT 2003 IN RESPECT OF COMPETING CLAIMS FOR EXTRADITION Under section 179(2) of the Extradition Act 2003, the Minister of State hereby orders that further proceedings on a warrant, dated 14 February 2024, from Portugal (being a territory designated for the purposes of Part 1 of that Act), for the arrest and extradition of Diogo Santos Coelho, should be deferred until the request dated 23 March 2022 from the United States (being a territory so designated for the purposes of Part 2 of that Act) has been disposed of”
(emphasis added)[82]No reasons for the decision have been disclosed and nor is there any statement from the Minister or anyone else on behalf of the SSHD.

Attempts on behalf of the Claimant to make representations

(a) Attempts on behalf of the Claimant to make representations

[83]On 14 March 2024, the Claimant’s representatives contacted Gemma Kelly of the Home Office by telephone, seeking to agree a timeline for making representations under section 179 of the 2003 Act. It was indicated by Ms Kelly that it was not possible to make representations.[84]Later that day, the SSHD made the Decision. The covering email to the Claimant’s representatives, enclosing the Order, states, so far as material:
“We were contacted by Ben Cooper regarding the possibility of Mr Santos Coelho making representations to the Secretary of State regarding which case should take precedence. I can confirm that the Secretary of State does not and did not in this case accept representations from either party and only considered the statutory criteria in Section 179”
(emphasis added)[85]There was a further request, on 15 March 2024, to make representations on behalf of the Claimant. But this was also refused. Ground 1: breach of the duty to act fairly? The applicable principles

Ground 1: breach of the duty to act fairly?

[86]The applicable principles are well known. As Singh LJ said in R (Citizens UK) v Secretary of State for the Home Department [2018] EWCA Civ 1812, [2018] 4 WLR 123 at [68]:
“68. That the common law will “supply the omission of the legislature” has not been in doubt since Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180 (Byles J)…. Accordingly, the duty to act fairly or the requirements of procedural fairness (what in the past were called the rules of natural justice) will readily be implied into a statutory framework even when the legislation is silent and does not expressly require any particular procedure to be followed.”
[87]The classic statement is that of Lord Mustill in R v Secretary of State for the Home Department ex parte Doody [1994] AC 531 at 560D-G:
“My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”
[88]In Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 39, [2014] AC 700 Lord Neuberger said this at [178]: “178…where the executive intends to exercise a statutory power to a person's substantial detriment, it is well established that, in the absence of special facts, the common law imposes a duty on the executive to give notice to that person of its intention, and to give that person an opportunity to be heard before the power is so exercised. While this has been described as a “rule of universal application … founded upon the plainest principles of justice”….. it has more recently been expressed in somewhat more measured terms. In [ex parte Doody] ….Lord Mustill said that “fairness” will “very often require that a person who may be adversely affected by the decision will have an opportunity to make representations … either before the decision is taken …; or after it is taken, with a view to procuring its modification”.[89]At [179] he went on to say:
“179. In my view, the rule is that, before a statutory power is exercised, any person who foreseeably would be significantly detrimentally affected by the exercise should be given the opportunity to make representations in advance, unless (i) the statutory provisions concerned expressly or impliedly provide otherwise or (ii) the circumstances in which the power is to be exercised would render it impossible, impractical or pointless to afford such an opportunity. I would add that any argument advanced in support of impossibility, impracticality or pointlessness should be very closely examined, as a court will be slow to hold that there is no obligation to give the opportunity, when such an obligation is not dispensed with in the relevant statute.”

The Claimant’s argument

[90]Mr Cooper submitted that the SSHD’s apparent practice of not allowing representations to be made in this type of case, and the fact that she did not do so in this particular case, were unlawful and procedurally unfair. Here, he said, the context includes serious consequences for the Claimant in the event of extradition to the USA instead of his home country given his likely psychological deterioration in the event of the former, and his high risk of suicide. The SSHD’s decision also had implications for the support which the Claimant would receive from the State as a person with autism and a victim of modern slavery and, more generally, from family and friends. The SSHD’s decision-making should have been informed by representations and evidence as to these issues.[91]The Claimant has also adduced expert evidence, in the form of a legal opinion dated 11 June 2025, to show that in Portugal he would be entitled to essential psychological support as a victim of modern slavery, as Portugal is a signatory to the ECAT and there is relevant domestic legislation to give effect to Article 12. He would also likely be remanded on bail. The Claimant also relies on evidence from a US attorney that support of this nature would not be available to him in the US, which is not party to the ECAT, and that he would be remanded in custody in any event with limited access to mental health support. This point and the associated expert evidence could and would have been put before the SSHD by the Claimant had he been given the opportunity to do so.[92]Mr Cooper submitted that there is nothing in the Extradition Act 2003 which expressly or impliedly excludes this aspect of the duty to act fairly. On the contrary, the statutory scheme permits representations to be made under section 179 which, in any event, is a desirable aspect of the SSHD’s Tameside duty and is conducive to better quality decision making, as the present case illustrates (see, further, Grounds 2-5 below). The lack of any right of appeal from a decision under section 179 also renders the need to be permitted to make representations before the decision all the more important.[93]As to practicalities, Mr Cooper submitted that: i) In the ordinary course the 2003 Act provides, in effect, that where a requested person consents to extradition no order will be made until the SSHD has made the decision under section 179: see section 51(3). The statutory deadlines for an order and removal under sections 46(6) and 47(3) therefore will not be triggered and the SSHD will not be under specific time constraints, albeit the statutory intention is that the process should not be delayed. The position was only different in the present case because of the procedural error in relation to District Judge Snow’s decision of 6 March which has now led to that decision being quashed in the context of Claim 2. ii) The Submission is also inaccurate in stating to the Minister that a decision had to be made by the SSHD on 15 March 2024. On 14 March, Portugal had applied for an extension of the 10 day period for removal pursuant to section 47(3) of the 2003 Act. On 15 March that application was granted by District Judge Rai, who had ordered that there be no extradition until proceedings in respect of the Request had been concluded. iii) Although section 51 only applies where extradition is consented to, in other cases where extradition is ordered the requested person will only be discharged if they make an application to be discharged on the basis that the relevant statutory deadline has not been complied with: see sections 35(5), 36(8) and 47(4) (Part 1 cases) 99(2), 117(3) and 118(7) (Part 2 cases). It is therefore open to the SSHD to seek an undertaking from the requested person not to apply to be discharged before a specified time as a condition of considering any representations which the person wishes to make in relation to the section 179 decision. At [92] of the Statement of Facts and Grounds it is also pleaded that there is a longstanding practice of the SSHD to afford requested persons an opportunity to provide an undertaking of this sort so as to facilitate the consideration of representations.[94]Mr Cooper also submitted that the lawful exercise of the SSHD’s discretion is beyond the scope of the appeal to the High Court in relation to the Request, which is concerned only with District Judge Sternberg’s approach to extradition to the USA. There are separate and new human rights considerations to be assessed under section 179, where one request/warrant may be more proportionate than the other, and where extradition to one State risks human rights violations whereas extradition to the other could protect the same rights. The District Judge is required to focus on the merits of extradition pursuant to the particular warrant or request under consideration. Jay J also appeared to take the view, in refusing permission, that arguments based on the availability of extradition to Portugal were not relevant to the appeal in relation to the Request. Even if that is wrong, District Judge Sternberg could not take these arguments into account in the present case as the Warrant had not been issued at the time of his decision. And even if, contrary to the view of Jay J, the arguments may be raised on appeal the Claimant would need to show that the subsequent developments were such that they would have led the District Judge to reach a different conclusion (see section 104(4) of the 2003 Act). This is a high threshold.[95]Mr Cooper added that a fair process would also allow Portugal (and presumably by extension the USA) to make representations. Such a process would give the two countries with a mutual interest in a successful prosecution an opportunity to discuss and agree between themselves which country should proceed first, thereby removing the need for the SSHD to adjudicate on the issue. In the event that the two requesting States did not agree, the SSHD would be furnished with accurate factual information from both states with which to make a final decision. Discussion between the competing States is also envisaged by the SSHD’s own policy on Competing Requests (see [8] of Annex A which is set out at [64], above).

The submissions on behalf of Portugal

[96]In his helpful and well informed submissions Mr Hyman drew attention to the terms of Article 614 of the Trade and Cooperation Agreement between the European Union and the United Kingdom (“TACA”), Title VII of Part 3 of which deals with extradition arrangements between the United Kingdom and the European Union. Article 614 provides, so far as material, as follows:
“Decision in the event of multiple requests 1. If two or more States have issued a European arrest warrant or an arrest warrant for the same person, the decision as to which of those arrest warrants is to be executed shall be taken by the executing judicial authority, with due consideration of all the circumstances, especially the relative seriousness of the offences and place of the offences, the respective dates of the arrest warrants or European arrest warrants and whether they have been issued for the purposes of prosecution or for the execution of a custodial sentence or detention order, and of legal obligations of Member States deriving from Union law regarding, in particular, the principles of freedom of movement and non-discrimination on grounds of nationality. 2. The executing judicial authority of a Member State may seek the advice of Eurojust when making the choice referred to in paragraph 1. 3. In the event of a conflict between an arrest warrant and a request for extradition presented by a third country, the decision as to whether the arrest warrant or the extradition request takes precedence shall be taken by the competent authority of the executing State with due consideration of all the circumstances, in particular those referred to in paragraph 1 and those mentioned in the applicable convention.”
(emphasis added)[97]Mr Hyman emphasised the requirement for “due consideration of all of the circumstances”. He also referred to Article 16 of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (“the Framework Decision”) which, he said, section 179 and section 44 of the 2003 Act were intended to implement. Article 16 also requires “due consideration of all of the circumstances, in particular/especially…” (emphasis added), in effect, the matters specified in section 179(3). And he noted that Parliament did not amend section 179 after the United Kingdom’s withdrawal from the European Union.[98]Mr Hyman also drew attention to the principle in Criminal Proceedings against Petruhhin (C-182/15); [2017] QB 299 which applies to Member States such as Portugal which prohibit the extradition of their own nationals to third countries, and to the subsequent case law in which this principle was considered and refined. In Petruhin, the Grand Chamber of the European Court of Justice held that where an arrested person is an EU citizen but not a national of the Member State in which he is detained, but has exercised free movement rights conferred by Article 21 of the Treaty on the Functioning of the European Union, before executing an extradition request to a third State the authorities in the Member State of detention are required to inform the Member State of nationality of the extradition request and invite them to consider whether they wish to prosecute their own national in respect of the same offending. If so, an issuing judicial authority in the Member State of nationality is required to issue a European arrest warrant and the authorities in the Member State of detention are obliged to give precedence to it.[99]Mr Hyman submitted that whilst the Petruhhin principle never applied to the United Kingdom as the 2003 Act does not prohibit the extradition of British citizens and whilst, in any event, the United Kingdom has left the European Union, the SSHD may still be “inspired” by the principle in Petruhhin. Prior to Brexit, an executing judicial authority in Portugal would have been required to invite the authorities here to consider whether they wished to prosecute a British citizen for the same offending prior to ordering his/her extradition to a third State.[100]Mr Hyman said that although Portugal did not take a position on the legality of the SSHD’s stated approach to competing requests/warrants as a matter of English public law, the considerations listed in Article 16 of the Framework Decision were materially identical to those in Article 614 TACA and, in any event, are non-exhaustive, as is the list of considerations in section 179(3) of the 2003 Act. Moreover, the recent decision of the European Court of Justice in OP v Procureur de la Republique (Case C-763/22) confirms that Article 16(3) of the Framework Decision engages the Charter of Fundamental Rights of the European Union, Article 7 of which seeks to protect the rights enshrined in Article 8 ECHR. In OP the preliminary question which had been referred to the Court of Justice was:
“Does Framework Decision preclude the legislation of a Member State from granting a governmental authority the power to decide, between a European arrest warrant and a concurrent extradition request issued by a third State, which of the two is to be executed, without any possibility of legal remedy?”
[101]In that context, the Court of

Justice said in the course of its judgment that:

“42. Accordingly, Article 16(3) of Framework Decision 2002/584 must be interpreted as meaning that, in the event of a conflict between a European arrest warrant and an extradition request, a body of the executive may be competent to take a decision granting precedence to one or the other of those instruments. 43. In the second place, the referring court is uncertain whether there must be a judicial remedy against decisions on precedence pursuant to Article 16(3) of Framework Decision 2002/584. 44. It should be emphasised that that article does not comprehensively establish the procedure governing situations where there is a conflict between a European arrest warrant and an extradition request. It specifies only certain procedural aspects relating to the decision that one or other of those instruments takes precedence, leaving the Member States to choose the form of that decision and the time at which it must be made. 45. In that regard, Article 16(3) states that the competent authority must give due consideration to all the circumstances of the case, in particular those specified in Article 16(1)... It follows that, although that authority has broad discretion when making its decision on precedence, the fact remains that it cannot dispense with the need to give consideration to the interests of the person concerned. 46. In view of the right of the person concerned by the decision on precedence not to be subject to a decision taken in disregard of that discretion, it follows from the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union…[the right to an effective remedy] that the Member States must provide that that person has an opportunity for an effective judicial remedy capable of guaranteeing respect for the requirements referred to in the preceding paragraph of the present judgment.”
(emphasis added)[102]Thus, although the Court of Justice did not in terms decide that there was a right to make representations to the executive in relation to the issue of precedence, the basis for its analysis was that the interests of the requested person required to be considered. Mr Hyman said that OP was not binding on me but submitted that I could take it into account in coming to my decision.[103]Mr Hyman went on to say that had Portugal been given the opportunity to do so it would have wished to make representations to the SSHD that the Warrant should proceed and the Request should be deferred. The points which Portugal would have made in support of this contention were partly made in written submissions from Ms Edite Pinho, Public Prosecutor in the Portuguese Judicial Authority, which were received by the Extradition Unit of the CPS on 13 June 2024, and can otherwise be gathered from the documents: i) the offending on which the Warrant is based relates to money laundering and tax fraud in addition to the fraud which is the subject of the Request and is thus broader than the offending which is the subject of the Request; ii) the investigation in Portugal commenced on 20 November 2020. A charging decision was only made against the Claimant shortly before the Warrant was issued; iii) the Claimant’s acts which form the basis of the alleged offending physically took place in Portugal and he received the proceeds into a Santander bank account in Portugal; iv) the Portuguese State considers itself a victim of the Claimant’s offending owing to the nature of the tax offences; v) there are victims of the Claimant’s offending in Portugal and across the world; indeed, cooperation was received from the Germany, Romania, Sweden and the United Kingdom; vi) the loss attributable to the Claimant is higher in the Warrant than in the Request; vii) it is important – from the point of view of the Claimant and Portugal, given its nationality bar to extradition - that the Claimant should be able to stand trial in his home country, where he is culturally assimilated and his mother tongue is spoken; viii) the length of sentence that the Claimant may receive if extradited to the USA is substantially greater than that which may be imposed in Portugal. In Portugal, he would be subject to a special regime because of his age at the point of commission and may receive psychiatric care. There are alternatives to pre-trial detention and the Claimant is likely to be released on bail pending trial; ix) the appropriate penalty and conditions of detention are relevant since the SCA has concluded that the Claimant is a victim of modern slavery. The USA need not respect the SCA’s decision and nor is it bound by similar obligations in international law; x) third States can provide mutual legal assistance to Portugal. Portugal can prosecute own nationals for offending which touches other jurisdictions. There are provisions in place to facilitate videoconferencing between Portugal and the USA.

The argument on behalf of the SSHD

[104]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).[105]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). (c) section 96 (earlier extradition to United Kingdom from other territory); (d) section 96A (earlier transfer to United Kingdom by International Criminal Court).[106]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.”
[107]There is a similar provision at section 93(7)(b).[108]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.” (c) if he thinks it appropriate, modify the draft in the light of any such representations.”
[109]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.[110]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.[111]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).[112]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”. (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”.[113]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”.[114]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.

The USA’s submissions

[115]Mr Evans, whose submissions were focussed and accurate, made two points: first, that the only decision which was sensibly open to the SSHD was the one which she took. I deal with the Additional Point later in my judgment. Second, he submitted that the SSHD’s decision was in any event appropriate or correct. i) The Request predates the Warrant by two years and extradition was ordered by the SSHD seven months before the latter was issued. The proceedings in relation to the Request were lengthy, truncated and required detailed evidence in relation to a number of different areas to be provided by the US authorities. ii) The conduct alleged in the Request was the result of an investigation by US law enforcement. It has significantly impacted a large number of individuals and companies in the US. There is a substantial degree of overlap between the conduct alleged in the Request and in the Warrant. Whilst the Warrant also includes money laundering and tax offences, these relate to the proceeds from the alleged conduct on the RaidForums website. iii) Although the Claimant was physically located in Portugal when he is alleged to have committed the offences, the victims identified were predominantly located in the US and the harm was most significantly felt there. Discussion[116]I note that Ms Cumberland did not contest Mr Cooper’s argument that the potential impact of the exercise by the SSHD of her power under section 179 of the 2003 Act was sufficiently detrimental to the Claimant to give rise, at least in principle, to the common law duty to give notice to him of her intention and to give him an opportunity to be heard before the power was exercised. Nor did she submit that there were special facts which meant that the common law duty did not arise. Rather, her principal submission was that the common law duty was excluded by the terms and scheme of the 2003 Act.[117]In any event, I accept Mr Cooper’s submission that, for the reasons which he gave, the difference between extradition to the USA and extradition to Portugal, so far as the Claimant is concerned, is sufficiently important to engage these aspects of the duty to act fairly at common law. In particular, there are material differences including in terms of his proximity to family and friends, his connection with the respective legal systems, his rights and the likely outcomes in the criminal process, and his rights to support in relation to his mental health bearing in mind that he has been found to be a victim of modern slavery. The fact that the Claimant has been diagnosed with autism and has other issues with his mental health, and the risk of suicide, are also an important part of the circumstances in which the question under section 179 arose. All things being equal, these factors meant that the Claimant ought to have been given an opportunity to make representations, even if they were limited to representations about the matters identified by section 179(3), or by the SSHD in her guidance on applying section 179, at Annex A to the Submission – “Competing requests” – (see [63]-[65], above) i.e. limited to matters other than the interests of the Claimant.[118]Counsel appeared to agree that if there was an obligation to consider representations from the Claimant it would follow that the USA and Portugal should also be permitted to make representations. The basis on which this is so was not explored in their submissions but presumably it is that fairness would then require the requesting States to be given an opportunity to respond to the Claimant’s submissions. As the submissions of Portugal and the USA in the present case demonstrate (see, further, below), the opportunity for them to make representations under section 179 is also conducive to better informed decision making by the SSHD.[119]Second, as for Ms Cumberland’s submission that, in effect, the common law duty is impliedly excluded by the terms and scheme of the 2003 Act, her arguments based on sections 93 and 173 are unconvincing. Sections 93(5) and (7)(b) do not in fact enact a specific right to make representations, nor an obligation on the part of the SSHD to consider them. They assume that representations will made, and will be considered by the SSHD, but set deadlines after which representations need not be considered. They do not show that where Parliament intended to confer a right to make representations under the 2003 Act it said so. If anything, the fact that no specific right to make representations is enacted under section 93 supports the view that any omission to enact such a right under the 2003 Act, including under section 179, is due to it being assumed that representations will be made and considered where the common law duty to act fairly requires this.[120]I agree that section 173(2)(b) of the 2003 Act enacts an express obligation on the part of the SSHD to consider representations. But this is in a very different context i.e. where she is intending to issue a code of practice in relation to the exercise of police powers under Part 4 of the Act. This is not a context where a court or the SSHD are, in effect, adjudicating individual rights or making decisions which directly affect the rights or interests of individuals, and therefore not a context in which the common law duty to act fairly necessarily arises or can be assumed to arise. This may or may not be the explanation for Parliament making express provision for representations under section 173. But the fact that the context is materially different means that, in my view, it cannot sensibly be concluded on the basis of section 173 that Parliament intended to exclude the duty to consider representations in the materially different context of decisions which affect the question of where a person should be extradited to or, more generally, decisions which give rise to the common law duty to act fairly.[121]As for Ms Cumberland’s broader submission that the 2003 Act requires that any representations which a requested person might wish to make to the SSHD in the context of section 179 must all be raised in the Magistrates’ Court or on appeal to the High Court, I do not agree. There is a real difference between the issues which the courts decide in the context of a particular extradition claim and the issue under section 179. I will come to the question whether the Claimant’s interests are relevant to the decision under section 179 but, even assuming that they are not: i) In proceedings before the courts relating to an extradition claim the issue is a binary one: should the requested person be extradited to country A? In contrast, the question under section 179 involves a comparison of the arguments for and against deferring competing extradition claims. ii) The question whether the requested person should be extradited to country A turns on whether extradition to that particular country is barred by a particular provision or provisions of the 2003 Act, or is incompatible with the ECHR. This will rarely, if ever, involve comparing the merits of extradition to the requesting State with the merits of extradition to some other State. In contrast, the decision under section 179 proceeds on the basis that the requested person will not be extradited to country A or country B if their extradition is prevented by the 2003 Act. The question, on the assumption that any order for the extradition of the person to either country will be lawful, is which claim should be considered first/which is the more appropriate country for them to be extradited to? iii) The terms of the statutory bars and the relevant provisions of the ECHR apply different tests to different, albeit potentially overlapping, considerations to those which are required by section 179(3) to be compared with a view to deciding whether they tip the balance in favour of one extradition claim rather than the other. Moreover, arguments which might be relevant or decisive for the purposes of the SSHD’s decision under section 179 will often be insufficient to establish that extradition to a particular requesting State is barred, or irrelevant to that question. iv) The scheme of the 2003 Act is that where there are competing extradition claims, a decision will be taken by the Magistrates’ Court (section 44) or the SSHD (sections 126 and 179) that one will be deferred and the other will proceed. That decision will involve a comparative assessment, as I have said. It is therefore arguable, although this specific point was not taken by Mr Cooper, that the Act contemplates that this will be the moment for the determination of arguments about the comparative merits of proceeding with one claim rather than the other, and that this issue will be exclusively or at least principally for the decision maker under sections 44, 126 and 179 rather than for the decision as to whether any bar to extradition to a particular country has been established. v) I was also told by Mr Cooper that where a Magistrates’ Court makes a decision under section 44 as to which of two competing Part 1 warrants should be deferred, the parties are given an opportunity to make representations, at a hearing if they wish. Whether or not that is so, and what matters is whether there would be a duty to offer this opportunity rather than merely whether it is offered in practice, I agree that it would be surprising if a court did not allow submissions to be made in relation to a decision of this nature. If that is so, it is difficult to see why this would be required of a court under section 44 but not the SSHD when deciding a very similar issue under sections 126 or 179. vi) In addition to this, it is difficult to see why Parliament would assume that representations will be made and considered for the purposes of section 93 but positively exclude such an opportunity under section 179. Although the nature of the decision under each provision is different, the outcome of the decision and the consequence for the requested person – extradition to a Category 2 territory – may be equally significant. Moreover, if anything, the section 93 decision is one where representations may be of less importance given that it mainly involves a series of essentially factual questions about matters which are likely to be within the knowledge of the SSHD. The section 179 discretion requires a greater degree of judgment on the part of the SSHD and representations may therefore be more likely to be helpful. Moreover, insofar as the interests of the requested person are relevant (as to which see further, below), the facts about this issue may not be within the SSHD’s knowledge unless there is the opportunity to make representations.[122]Third, as for Ms Cumberland’s submissions on the issue of practicality and delay – “impossibility, impracticality or pointlessness” in the words of Lord Neuberger at [179] of Bank Mellat – I accept that the statutory imperative is for extradition claims to be dealt with as rapidly as is consistent with the interests of justice. This is reflected in the materials on which Ms Cumberland relied and is well established. It should also be recognised that if a given construction of the 2003 Act (here, that section 179 does not exclude the duty to consider representations) would lead to significant delay, that is a factor which militates against that construction. However, it is open to the Magistrates’ Court (when making a decision under section 44) or the SSHD (when making a decision under sections 126 and 179) to set tight deadlines for the making of representations and, more generally, to manage the process efficiently in the context of such time constraints as apply.[123]As for Ms Cumberland’s submission that the deadlines for ordering and effecting extradition under, for example, sections 35, 36, 47, 99, 117 and 118 are tight, this is true in the case of some of those deadlines but less so in relation to others. The working assumption made by the 2003 Act is also that if there are competing extradition claims the Magistrates’ Court or the SSHD will be informed or aware of this. As soon as they are, either a decision as to deferral of one of the claims will be taken or no extradition order will be made by the Magistrates’ Court pending a decision by the SSHD as to which should be deferred (see sections 44, 51, 126 and 179). Often, this will be before any decisions have been made on which the statutory deadlines for an extradition order, or for extradition to be effected, have come into effect. Even where such a deadline has come into effect, the 2003 Act does permit applications (under e.g. sections 35(4)(b), 47(3) and 99(4)) to extend time so as to enable representations to be made. There is also scope for the requested person to agree not to apply to be discharged if a statutory deadline is not met, as a condition for being given time to make representations, albeit the fact that arguably a requested person could not be held to such an agreement means that this is not a factor on which I place great weight.[124]As far as the ability of the SSHD to resolve factual disputes is concerned, this is likely to be less of an issue in relation to representations about the sort of factors referred to in section 179(3) and/or Annex A than in relation to representations about the interests of the requested person. I deal with representations about potentially disputed factual matters below.[125]Fourth, there is the question whether the interests of the requested person are a relevant consideration. Although this was not addressed in Counsels’ submissions as a discrete issue, it seemed to me that it is necessary – given the arguments which the Claimant and Portugal would have wished to put before the SSHD - to consider what is the permitted scope of any representations to the SSHD under section 179. Assuming that there would be no right to make representations which were irrelevant to the SSHD’s decision, this entails asking what considerations should be taken into account by the SSHD in exercising the discretion under section 179. The interpretation of section 179 for this purpose also engages Ms Cumberland’s arguments about the terms and scheme of the 2003 Act and about practicalities and the risk of delay etc.[126]In addition to her arguments summarised above, Ms Cumberland made a broad submission that matters such as the requested person’s ties with one or other of the requesting States, the impact on their mental health of extradition to one requesting State as opposed to the other, relative suicide risk, the impact on their rights and interests of choosing one State rather than the other etc, can only be raised in the Magistrates’ Court or the High Court in the context of a particular extradition claim. She also said, when I asked her about the OP case relied on by Mr Hyman, and the statement of the Court of Justice that the need to give consideration to the interests of the person concerned cannot be dispensed with, that she did not “necessarily accept” that section 179 was intended to implement Article 16 of the Framework Decision; the status of the OP decision was “advisory”; and that “generally the accused or convicted person does not get to have a say over where they are tried or where they serve their sentence”. She did not accept that the interests of the requested person were relevant. But she did not base this on a detailed analysis of the statutory provisions or any case law which explained why the line should be drawn where it is drawn in Annex A: why, for example, the nationality of the requested person may be taken into account but not their social and family ties to the requesting States.[127]Section 179(3) of the 2003 Act provides a non-exhaustive list of the principal considerations for the SSHD, as her own guidance in Annex A acknowledges. The scheme of the 2003 Act as a whole is to recognise that, in the context of a particular extradition claim, the requested person has rights and interests which require to be taken into account as part of the decision making about whether they should be extradited. It is not clear why these considerations would become irrelevant where there are competing extradition claims although, of course, Ms Cumberland argues that they can be raised in the context of a particular extradition claim albeit that is all that is permitted by the Act. It also seems to me that Ms Cumberland’s broad submission that, in effect, the interests of the requested person are irrelevant to the SSHD’s decision under section 179 does not give any weight to the fact that the section applies to accusation as well as conviction cases. It cannot be construed on the assumption that the requested person is guilty as charged and that their interests are therefore irrelevant.[128]Returning to Ms Cumberland’s arguments based on the terms and scheme of the 2003 Act, her arguments based on sections 93 and 173 (which I have rejected in any event) do not shed light on the scope of the representations which, in my view, must be considered by the SSHD under section 179. Her argument that the courts are the only forum in which the issues which the Claimant wishes to raise may be raised is, however, more compelling. Clearly, the courts are better equipped to determine evidential disputes and to evaluate evidence of this sort where the need arises, and the opportunity to make wider ranging representations is more likely to cause delay.[129]However: i) As far as the ability of the requested person to make representations about their personal interests in the courts is concerned, it seems to me that much of the reasoning at [121(i)-(vi)], above, applies. In the context of a particular extradition claim, any representations which the requested person makes will only be effective insofar as they establish a bar to extradition to the particular requesting State. In contrast, the decision under section 179 is as to which claim should be considered first/which is the more appropriate country for them to be extradited to assuming that any extradition order will be lawful. The issue is as to the comparative merits of a given claim proceeding first. Arguments comparing the impact on the requested person of extradition to one requesting state or the other are unlikely to have any real purchase in the context of a particular extradition claim given that the question is whether a bar to the particular requesting state is or is not established. If a bar is not established, the comparative position will be irrelevant in most if not all cases. The opportunity to raise such arguments in the courts in the context of a particular extradition claim therefore does not provide a compelling basis for concluding that Parliament must have intended that they could not be raised in the context of a decision under section 179 or, for that matter, sections 44 or 126. ii) As far as delay and the practical implications of permitting representations are concerned, the reasoning at [122]-[124] applies. It is open to the SSHD to set a tight timetable for representations. In many cases the issue will arise at a stage before statutory deadlines for ordering and effecting extradition have come into effect and, in any event, there is scope to apply to extend time. The SSHD will decide the issue on the papers, taking account of any areas of dispute. As noted above, the context for the decision is an assumption that factual disputes can be resolved in the courts, if necessary, and that the requested person will not be extradited if it would be contrary to the 2003 Act for their extradition to be ordered. This is something which the SSHD is entitled to take into account and, of necessity, it reduces the complexity of her task. In this connection, I also note that the parties appeared to agree that decisions under section 179 are rare and this is consistent with what is said at [9.8] of the Review of the United Kingdom’s Extradition Arrangements conducted by Sir Scott Baker (“the Scott Baker Review”), albeit in 2011. iii) I also agree with Ms Cumberland that the effect of sections 70(10) and (11) of the 2003 Act is that the SSHD is not required to decide whether extradition to a given requesting State would or would not be contrary to the ECHR. That is a matter for the courts: see Grounds 4 and 5 below. Again, this means that my proposed interpretation of section 179 is somewhat less alarming than Ms Cumberland portrayed it.[130]Finally, insofar as Ms Cumberland’s argument that the opportunity to make representations would not have made a difference to the outcome was an argument that therefore the duty to act fairly did not arise and/or is excluded by the statute because such an opportunity would be “pointless” (per Lord Neuberger in Bank Mellat), I disagree. For reasons I will explain below in relation to section 31(2A) of the Senior Courts Act 1981, that is not the position on the facts of the present case. Nor can it be said that, for the purposes of interpreting the 2003 Act, it should be taken to be pointless in all cases. I do not suggest that the SSHD could not have reached the same decision in the light of the representations which the Claimant and Portugal would have made, but the position is not so clear cut that giving them the opportunity to do so would be “pointless”.[131]For these reasons it seems to me that whilst section 179 makes clear that the considerations specified at 179(3) are of particular importance and must be taken into account, the SSHD has a broad discretion under the section. As it is formulated under Article 614.3 TACA, however, she is required to give due consideration to all of the circumstances and, in my view, these include the interests of the requested person. That being so, it must be open to the requested person to make representations which rely on broader factors than those which are specified in section 179(3), and indeed Annex A to the Submission, including representations on how their interests are best served.[132]In reaching this conclusion I am fortified by the fact that it is consistent with the position under Article 16(3) of the Framework Decision which, I accept, section 179 was intended to implement. Whilst the position is now set out in Article 614 TACA there is no evidence in the text of that provision that a different approach was intended or required to be taken and, as Mr Hyman notes, section 179 has not been amended since Brexit. The force of his implied submission that therefore the interpretation of Article 16 stated in OP was intended by Parliament to be the position under section 179 is reduced by the fact that it was decided recently, and post-dates TACA. Moreover, OP is not binding on me in any event as the parties agreed. However, no one disputed Mr Hyman’s submission that, pursuant to section 6(2) of the European Union (Withdrawal) Act 2018, I could have regard to OP.[133]In connection with OP, I also note what was said at [87]-[102] of the Advocate General’s Opinion including, at [87]: “More specifically, Article 16(3) of Framework Decision 2002/584, read in conjunction with Article 16(1) thereof, makes it clear that the decision on precedence is to be taken ‘with due consideration of all the circumstances’, ‘in particular’ seriousness and place of the relevant offences, the respective dates of the requests and whether the requests concern prosecution or execution of a custodial sentence, as well as those specified in the applicable convention. In the light of the non-exhaustive nature of those criteria, the competent authority may also take into account criteria other than those referred to above, such as those mentioned in the Guidelines issued by Eurojust,…(subject to the applicable extradition convention)”. (emphasis added)[134]Eurojust (the European Union Agency for Criminal Justice Cooperation) is also referred to in Article 614.2 TACA, as noted at [96], above, albeit with reference to the executing judicial authority of an EU Member State. Mr Cooper produced the Eurojust “Guidelines for deciding which jurisdiction should prosecute” dated 13 December 2016, albeit in the course of his reply to Ms Cumberland’s submissions at the hearing. These include, as relevant considerations in deciding which request/warrant should take precedence:
“the nationality or usual place of residence of the suspect/accused person; the possible strong personal connections with one Member State or other significant interests of the suspect/accused person”
(emphasis added)

Conclusion on Ground 1

[135]So for all of these reasons, I reject Ms Cumberland’s argument that the terms and the scheme of the 2003 Act expressly or impliedly exclude a duty on the part of the SSHD to act fairly when making decisions under section 179. Nor do I accept that the circumstances in which the power is to be exercised would render it impossible, impractical or pointless to afford such an opportunity. It follows that the SSHD’s refusal to consider representations on behalf of the Claimant in the present case, apparently pursuant to a policy never to permit or consider representations in the context of section 179, was contrary to the duty to act fairly and unlawful as alleged in Ground 1.[136]I therefore give permission and allow the claim on Ground 1.[137]I reach this conclusion without relying on the witness statement of Mr Mitchell which I decline to admit in evidence for a number of reasons. These include that the evidence could and should have been adduced in accordance with the timetable directed by the court, and therefore a good deal earlier than the eve of trial. The statement purported to respond to something said in the skeleton argument on behalf of the SSHD – an alleged claim by the SSHD that it was not her practice to consider representations in relation to analogous decisions under the 2003 Act - but in fact the skeleton did not say what it was alleged to say. Mr Mitchell was purporting to contradict something which had not been said and this therefore appeared to be a pretext for what was an afterthought on the part of the Claimant’s legal team. Moreover, it was no part of the Claimant’s pleaded case that the SSHD’s approach under section 179 of the 2003 Act was unfair because it was inconsistent with her practice in relation to analogous decisions under other provisions of that Act.[138]Mr Mitchell’s statement also adopted a somewhat unorthodox approach and, from the point of view of fairness, was inherently difficult for the SSHD to respond to. Apart from a reference to Halligen v Secretary of State for the Home Department [2012] EWHC 3769 (Admin) which related to section 208 of the 2003 Act, and a passing reference to “the case of Assange”, the statement purported to be based on an informal survey of three KCs as to their experiences in unnamed cases (which did not appear to have reached court), on unspecified dates and relating to other provisions of the 2003 Act.[139]In short, I did not consider that this evidence was helpful or relevant in relation to the issues in the case and, in any event, nor did I consider that it would be fair for the Claimant to be permitted to rely on it.[140]I also refuse the Claimant’s application dated 20 June 2025 to admit the further evidence referred to at [10(i)] above, save for the report of Henrique Salinas, Attorney, dated 11 June 2025. Apart from the report of Mr Salinas, which illustrated some of the points which might have been made had there been the opportunity for representations, the evidence which was sought to be adduced was essentially updating medical evidence. It did not materially add to evidence which was already before the court and it did not assist with the issues which I am required to determine. Given the issues in the case and the evidence which was already in, I did not consider that there was any significant prejudice to the SSHD if the report of Mr Salinas were to be admitted. Ground 2: mistake of fact? The principle

Ground 2: mistake of fact?

[141]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.”
The arguments of the parties[142]Mr Cooper alleged that there were two material mistakes of fact which rendered the SSHD’s decision unfair. The Statement of Facts and Grounds and the Claimant’s skeleton argument quoted the SSHD’s pre action protocol response dated 16 April 2024 which (unbeknown to the Claimant) was itself quoting the undisclosed Annex B, as well as the text of the Submission. Mr Cooper’s case was that the SSHD had mistakenly proceeded on the basis that: i) “Both offences concern identical allegations/offending…” ([5] of the Submission and [12(a)] of the pre action protocol response). This, submitted Mr Cooper, is wrong given that the Warrant alleged additional offences of money laundering and tax fraud/evasion, and given that these offences attract sentences of up to 12 and 8 years’ imprisonment respectively. ii) “All the victims are based in the United States” ([12(a)] of the pre action protocol response). Again, this was wrong. It was clear from the text of both the Request and the Warrant that there were victims elsewhere in the world and that the Portuguese State was itself an alleged victim of money laundering and tax evasion. There is additional information, which would have been readily available had the SSHD made any inquiries, which showed that the victims were not confined to companies and people who were based in the USA. Mr Cooper relied on a passage, in Ms Cuellar’s affidavit in support of the Request, which referred to the Claimant boasting that he had hacked “an Asian loan agent website” and to other material to show that victims of RaidForums were not all based in the USA, including a National Crime Agency press release dated 12 April 2022 which said that the compromised data included information stolen from UK companies. Ms Pinho, in her submissions of 13 June 2024 also states that the Portuguese police conducting the investigation describe the victims as “residing in various locations around the world…. which is why international co-operation with countries such as Sweden, Romania, Germany and the United Kingdom was promoted”.[143]Mr Cooper submitted that these mistakes were as to existing facts which were established in the relevant sense, that the Claimant and his advisers were not responsible for these mistakes and that they must have played a material part in the SSHD’s reasoning. In relation to materiality, he particularly emphasised that the SSHD’s own guidance at Annex A to the Submission states that the relative seriousness of the offences criterion “will usually determine which claim takes precedence”.[144]Ms Cumberland did not argue that section 179 of the Extradition Act 2003 was not a context in which the parties share an interest in co-operating to achieve the correct result. Nor did she dispute that the complaints raised by the Claimant related to existing and established facts, or suggest that any error was the fault of the Claimant. i) As to the statement that the allegations/offending were identical, Ms Cumberland accepted that they were not identical but submitted that they were “extremely similar”. It is evident from the Request and the Warrant that the wording and description of the offending is almost the same. The true nature of the Claimant’s argument is that the Portuguese authorities have categorised the offences slightly differently but these differences reflect the distinct legal systems of the two requesting States and do not bear on the conduct alleged. Nor does the difference in the number of counts. In this connection, Ms Cumberland relied on an analogy with the approach to determining whether there has been an extradition offence set out in Norris v The Government of the United States of America [2008] UKHL 16, [2008] 1 AC 920, where the focus is on the conduct alleged. In effect, her submission was that the admitted error was not material. ii) As to the reference to the victims of the Claimant’s offending being based in the USA, Ms Cumberland submitted that the references relied on by Mr Cooper to show that this is not the case do not detract from the fact that the Submission accurately refers to “the conduct in the main”. When comparing victims of competing requests the main issue is whether they are in either requesting State rather than other countries and there is only one pointer towards there being any victim in Portugal. This is the reference to tax evasion/fraud which is corollary offending rather than the central offending and is not particularised in any detail. Ms Cumberland also emphasised that the Submission said that “The stated victims and witnesses in each request are based in the US” and she pointed out that the Request lists categories of US law enforcement personnel as witnesses who will testify to the offending alleged. She submitted that the Request demonstrates the importance of the USA’s evidence which it had gathered in the course of its investigation. Her overall submission was, in effect, that there was no error in relation to the location of the alleged victims or, if there was, such error was not material.

Discussion of Ground 2

[145]I note that as the Minister did not give reasons for his decision and has not provided a witness statement, my assessment of what must or must not have played a material part in his reasoning can only be based on the Submission and its Annexes. The GLD’s pre action response letter of 16 April 2024 does not purport to do more than argue the SSHD’s case based on those documents. This point also affects Ground 3.[146]Taking each of Mr Cooper’s complaints in turn, as I have noted Ms Cumberland did not dispute that the statements in the Submission and Annex B that the offending/allegations were “identical” were incorrect. Whilst I accept that there is a substantial overlap in the offending alleged in the Request and the Warrant I do not accept that the Claimant’s reliance on the additional allegations of money laundering and tax evasion/fraud is, in effect, an argument based on form rather than substance and/or the difference is immaterial. The substance of the Claimant’s argument is not merely that the alleged offending has been categorised differently because of the differences between the US and the Portuguese legal systems or that there are more counts in the proceedings in the USA.[147]Rather, I accept Mr Cooper’s submission that the Portuguese authorities have charged the Claimant with additional offences based on additional criminal conduct. In effect, both the Request and the Warrant require him to stand trial for data theft and trading in stolen data of which various companies and individuals are the victims; the Warrant, additionally, seeks to prosecute him for the laundering of the proceeds and the failure to account to the Portuguese tax authorities for these proceeds. Moreover, this feature of the Warrant is specifically connected to Portugal. In relation to money laundering, the Warrant alleges in terms that the proceeds of the Claimant’s activities in relation to RaidForums were paid into his Banco Santander account in Portugal. In relation to tax fraud, the allegation is that the Claimant was never registered with the Portuguese tax authorities and has never submitted income tax declarations to them.[148]The disclosure of the true Annex B gave pause for thought in relation to this issue as [8] (quoted above at [75]) does refer to the money laundering and tax fraud charges, the maximum sentences for each, the sum paid into the Claimant’s bank account in Portugal and what the Warrant says about his failure to account to the Portuguese tax authorities. Arguably, on the basis of [8] taken in isolation, the Minister was therefore aware that the offending/allegations were not identical, despite being told that they were. However, the GLD’s submissions by email dated 7 August 2025 did not withdraw the implied concession that the Minister proceeded on the basis that they were identical or, indeed, rely specifically on what is said at [8] of Annex B to argue that the error was not material. This may be because of what is said at [5] of the Submission (i.e. that they are identical) and because of what is said that the beginning of [8] of Annex B, namely that Portugal had requested the extradition of the Claimant “for the same crime, over the same period of time”. As noted above, [10] of Annex B also identified as a “Key point..for consideration” the fact that “Both offences (sic) concern identical offending” and goes on to refer to “the identical facts”.[149]As to the question whether the mistake must have played a material but not necessarily decisive part in the Minister’s reasoning, I accept that it must have. In both Annex A and B to the Submission the Minister was told that the relative seriousness criterion was usually decisive. It would therefore be material for him to be told that there was additional offending alleged by the Portuguese authorities and the case against him under the Warrant was therefore more serious. Instead, he was told as a “key point” that the allegations in both the Request and the Warrant were “identical” – not just that they substantially overlapped – and that this meant that it was “impossible” to determine the matter on the basis of this criterion. On a fair reading of the Submission and Annex B, this approach meant that the bases for the Minister’s decision were the location of the victims and the witnesses in each extradition claim and the fact that the Request was made two years earlier than the Warrant was issued. In other words, as a result of the first mistake identified by Mr Cooper the starting point for the Minister’s reasoning was materially different to what it ought to have been under his own guidance.[150]To my mind, it was also material that the Warrant overlapped with, but covered wider offending than, the Request. This goes to relative seriousness but it also goes to the practicalities given that the Request would not necessarily lead to the disposal of all of the criminality alleged against the Claimant. This was a factor in favour of giving precedence to the Warrant. In this connection, I note that Annex A itself states that the extent to which the conduct alleged in one request or warrant is “subsumed in a competing request or….Warrant” is relevant, albeit if the matter is not settled by the considerations which are required by section 179(3) to be taken into account.[151]As to the Claimant’s second alleged material mistake of fact, the true characterisation of what happened seems to me to be that what the Minister was told about the location of the victims was internally contradictory and unclear, but one of the contradictory positions was incorrect. The Submission said that the “stated victims and witnesses” in each request were based in the US so that “on its face, a trial in the US would thus be more appropriate”. However, the summary of the offending in Annex B included a statement that “Since June 2016, it is estimated that more than 10 billion unique records of individuals living in the US and elsewhere were trafficked through Raid Forums.” Annex B went on to say, at [8] that “All of the victims referenced in the [Portuguese] request, either a person or a business, are based in the US” (emphasis added). At [10] it said, in relation to the relative seriousness of the offences, that “as recorded in the Portuguese request, all the victims are based in the US. But both requests note that there are purported victims based outside the US. Neither request provides further detail or specific figures. It is unknown if any victims were based in Portugal”. [10] goes on to say, in relation to the question where each offence was committed, that “In both requests, the stated victims are exclusively based in the US” (emphasis added) and it is not known whether any victims are based in Portugal.[152]There was no analysis of the meaning of “the stated victims” in Counsel’s submissions but even assuming that this means the corporate and individual victims of the data theft and trading whose locations are apparent from the Request and the Warrant, what is said in the Submission is at best confusing and, at least in places, incorrect. In fact: i) Ms Cuellar’s affidavit in support of the Request stated that RaidForums, which was hosted on a server outside the USA, was a marketplace for the acquisition of stolen databases containing devices for access to online accounts issued by United States entities. “Often the stolen access devices and means of identification belonged to United States companies and individuals”. Hundreds of databases had been offered for sale by RaidForums “consisting of over 10 billion unique records of individuals residing in the United States and internationally”. ii) The Warrant was in materially similar terms as far as the activities of RaidForums were concerned but, as pointed out above, there were the also the additional allegations of money laundering through a Banco Santander account in Portugal and of tax fraud/evasion where the victim was the Portuguese State itself.[153]Even on their face, the Submission and Annex B were therefore wrong to say that in both extradition requests the stated victims of the Claimant’s offending were all or exclusively based in the USA. In fact, in both it was stated that the victims were “often” US companies and the affected individuals resided “in the USA and internationally”. As Mr Cooper submits, there is also material in addition to the Request and the Warrant to show that the victims of the data theft and trading were not exclusively based in the USA. Annex B was right to say that it was not known whether any victims were based in Portugal if this was a reference to victims of the theft and trading of data, but it was wrong in the sense that this overlooked the point that the alleged victim of the tax fraud was the Portuguese State and, indirectly, the Portuguese people.[154]Turning to the question of materiality, I note that the GLD’s email submissions dated 7 August 2025 do not argue that the Minister was told in Annex B, albeit in internally contradictory and confusing statements, that there were victims or purported victims based in countries other than the USA. Rather, the argument put forward at the hearing was maintained. This is effectively that the point being made in the Submission was about the victims of the main offending; the Submission referred to victims and witnesses and this point was rightly the basis for suggesting that their location rendered a trial in the USA more appropriate. Reading what was said in the round, any error or inaccuracy specifically in relation to victims cannot have played a material part in the Minister’s decision.[155]After some hesitation, I do not accept this argument. The statutory criterion under consideration was “the place where each offence was…alleged to have been committed” and it seems to me that the location of the victims of the Claimant’s offending was more relevant to that consideration than the location of the witnesses, particularly the law enforcement witnesses, given that the case concerns cybercrime. The thrust of the Submission, albeit there were internal contradictions, was that the question of the location of the victims pointed entirely in favour of the Request. Having decided that there was a dead heat in terms of the relative seriousness of the offending, the location of the victims was one of only three differentiating features between the Request and the Warrant which were identified, the other two being the location of the witnesses and the timing of the two extradition claims. The purported fact that the stated victims were exclusively based in the USA was also presented as a counter argument to the argument for giving precedence to the Warrant based on the fact that the Claimant was living in Portugal at the time of his criminal activities. If the author of the Submission had recognised that, not only were the victims worldwide, the Portuguese State was an alleged victim of the alleged offending, this would have moved the dial further towards giving precedence to Portugal or, at least, less towards giving precedence to the Request based on the location of the witnesses, even if it was not decisive.[156]I accept that a key point relied on by the author of the Submission was that the witnesses were based in the USA, including FBI and other law enforcement witnesses who had taken part in the US investigation. But, as Ms Pinho points out, it is not the case that no investigation was carried out by the Portuguese authorities. They did investigate the matter. She also points out that in any event witnesses and victims can give evidence remotely under the Agreement between the European Union and the United States of America on mutual legal assistance, published in Official Journal L181 on 19 July 2003 and under the Portuguese Code of Criminal Procedure. Testimony may also be given in writing if this is not possible. I make this point, not because there was any allegation of a mistake of fact in this regard but because it goes to the materiality of the mistake alleged in relation to victims. In this connection I also note that although, in the round, the Request and the Warrant do indicate a strong connection between the offending and companies and individuals based in the USA, Annex B itself acknowledges that “neither request provides further detail or specific figures for the purported victims” and that it is not known whether there were any victims based in Portugal, rather than that there are none. To this extent, Ms Cumberland’s submission that the victims of the conduct in the main were based in the USA is not as powerful as it might otherwise be.[157]Even if the two mistakes of fact alleged by Mr Cooper were not individually material in the relevant sense, in combination it seems to me that they were. It must have been material to the Minister’s decision that he understood that the allegations against the Claimant were identical but that the victims of the offending whose locations were apparent from the Request and the Warrant were all in the USA. And it would have been material to know that in fact broader criminality was alleged by the Portuguese authorities, the Request itself indicated that the victims of his offending were not all based in the USA and it was apparent that a key victim was the Portuguese State. Overall, the essential error made by the author of the Submission was to focus on the data theft and trading and to overlook the significance of the additional charges in the Warrant. Even on this approach the suggestion that, on the information available, all of the victims of the data theft and trading were based in the USA was wrong. This led to unfairness in that the decision was taken on a materially inaccurate presentation of the position. It also rendered the Decision irrational. Conclusion[158]For all of these reasons I give permission on Ground 2 and allow the claim on this Ground. Ground 3: failure to take into account relevant considerations The principle

Ground 3: failure to take into account relevant considerations

[159]Whether a consideration is relevant to a decision is a matter of law: R (Sainsbury's Supermarkets Ltd) v Wolverhampton CC [2011] 1 AC 437 at [70]; R (Wright) v Forest of Dean DC [2019] 1 WLR 6562 at [42]. A consideration which is not expressly required by the relevant legislation to be considered will only be a relevant consideration if it is “so obviously material” to the decision to be taken that a failure to consider it would be contrary to the intention of the legislation conferring the decision making function: Re Findlay [1985] AC 318, 333-334; R (Hurst) v London North District Coroner [2007] 2 AC 189 at [57]-[58].

The arguments of the parties

[160]Mr Cooper alleged that, even in considering the factors in section 179(3) alone, the Minister failed to take into account the following relevant considerations. i) First, in assessing the relative seriousness of the offending which was the subject of the Request and the Warrant, and on the basis that the SSHD accepted that the allegations/offending were “identical” the SSHD failed to take into account the evidence set out in the documents themselves (“factor 1”). ii) Second, in relation to where the offending took place, the SSHD failed to take into account that the vast majority of the Claimant’s offending took place when he was in Portugal. Nor did the Minister take into account the large sums received into the Claimant’s account in Portugal (€650,682) and the fact that these exceeded the sums referred to in the Request as representing the proceeds of the offending alleged (USD 215,571) (“factor 2”). iii) Third, the Minister failed to consider factors arising from the fact that the Claimant is of Portuguese nationality including his family support in Portugal which was highly relevant to his suicide risk (“factor 3”). iv) Fourth, in relation to the victims of the alleged offending, the Minister failed to take into account the evidence to the contrary in approaching the matter on the basis that all of the victims were based on the USA. He also appears to have given determinative weight to this view rather than weighing it against other considerations (“factor 4”). v) Fifth, referring to [12(b)] of the GLD’s pre action protocol response, Mr Cooper criticised the statement (also at [10] of Annex B to the Submission) that “if (sic) prosecution were to proceed in Portugal, the transmission of evidence and attendance of witnesses could potentially cause issues, thereby vitiating the proper and fair administration of justice” which he said was unevidenced and unjustified. He referred to Love v The Government of the United States of America [2018] EWHC 172 (Admin); [2018] 1 WLR 2889 at [36(d)] and Scott v The Government of the United States of America [2018] EWHC 2021 (Admin); [2019] 1 WLR 774 at [48]-[49] where, he said, arguments of this nature in relation to forum had been accorded little weight (“factor 5”).[161]Mr Cooper also criticised the Minister’s failure to take into account any considerations over and above the statutory criteria including: i) The suicide risk and risk of psychiatric harm to the Claimant of extradition to the USA and the family support available to him in Portugal (“factor 6”); ii) The SSHD’s obligations to the Claimant as a potential victim of modern slavery and his rights under the ECAT as a result of the reasonable grounds decision of 1 September 2023 and, in particular, his right under section 61 of the Nationality and Borders Act 2022 not to be removed from or required to leave the United Kingdom during the “recovery period” of 30 days from the reasonable grounds decision or the conclusive grounds decision, whichever is the later. It was a material consideration that, at the time of the Decision, the statutory recovery period had not yet expired given that the conclusive grounds decision was made on 22 April 2024 (“factor 7”). iii) The fact that Portugal is a signatory to the ECAT and the ECHR and the potential for cooperation with the Portuguese authorities in relation to the investigation of the grooming of the Claimant which led to his offending. The United Kingdom and Portugal had obligations to investigate modern slavery under Article 32 ECAT and Article 4 ECHR but the USA did not (“factor 8”).[162]Ms Cumberland’s position was essentially that the SSHD had taken into account the considerations which were required to be considered and there had not been any irrational failure to take relevant matters into account or consideration of irrelevant matters. There was no obligation to consider matters over and above the factors required by section 179(3) and the personal rights/interests referred to by the Claimant were a matter for the courts, in the context of a particular extradition claim, rather than the SSHD, as she submitted in relation to Ground 1. The same was true of the Claimant’s arguments based on his status as a victim of modern slavery and, in any event, the findings of a junior civil servant cannot be relied on as expert evidence in a criminal trial and may in any event be too brief to deserve weight: see e.g. Koceku v Albania [2024] EWHC 1028 (Admin) at [29] and [43]. In any event, this consideration would not have made any difference to the Decision as section 61 of the Nationality and Borders Act 2002 is concerned with immigration removal and not extradition. In relation to cooperation in investigating the grooming of the Claimant, it is not clear why this could not be possible in the event of his extradition to the USA.

Discussion

[163]Essentially, factor 1 looks at the first material mistake of fact relied on by the Claimant. The relative seriousness of the offending was a mandatory relevant consideration and, in my view the Minister was bound to take into account the evidence that the Warrant related to wider and, in this sense, more serious offending than the Request. Instead, he proceeded on the basis that the offending/allegations in both requests was identical. I accept that this was irrational.[164]As for factor 2, I reject Mr Cooper’s complaint. As highlighted above, the Submission and the Annex made clear that the offending had taken place whilst the Claimant was living in Portugal. This and his Portuguese nationality were acknowledged to be a factor in favour of giving precedence to the Warrant (see [1] of Annex B). The figures in relation to the proceeds of the Claimant’s activities related to RaidForums were also provided and commented upon (see [8] of Annex B. The treatment of this factor did not render the Decision irrational.[165]As for factor 3, the Minister was informed of the Claimant’s Portuguese nationality but I accept that the approach in the Submission, which reflected the guidance in Annex A, was to leave the Claimant’s interests out of account. For the reasons which I have given above, the Minister was required to give due consideration to these matters and I accept that his failure to do so rendered his decision irrational.[166]As to factor 4, I have accepted that the statements about victims in the Submission and Annex B were contradictory and confusing, and the statements that the victims or stated victims were all or exclusively based in the USA were wrong and irrational. However, I do not agree that the Minister appears to have given decisive weight to the location of the victims. As noted above, the overall point which was being made in the Submission was that because the victims and the witnesses were all based in the USA it was desirable that the trial should take place there. The Submission also made the point that the Request had been made 2 years before the Warrant.[167]I reject the complaint about factor 5, which is essentially a complaint about taking into account an allegedly irrelevant consideration. As noted above, what [10] of Annex B actually said was that if the prosecution were to proceed in Portugal, “the transmission of evidence and attendance of witnesses could potentially cause issues, thereby vitiating the proper and fair administration of justice” (emphasis added). That seems to me to be an unexceptionable statement and the Minister was entitled to take this factor into account.[168]As to factor 6, I agree that as part of an overall approach which took the view that the interests of the Claimant were irrelevant the Minister did not take into account the relative impact on the Claimant’s mental health and the risk of suicide in the event of extradition to the USA as compared with Portugal. Although these considerations were addressed in the judgment of District Judge Sternberg at Annex E to the Submission the reasoning in the Submission and the Annex, on which the Decision may be taken to be based, treated them as irrelevant. For the reasons which I have given, I do not agree that they were.[169]As to factors 7 and 8, I deal with the ECAT and Article 4 ECHR in greater detail below and set out the relevant provisions. However, as noted above the Submission specifically drew attention to the reasonable grounds decision and to the fact that the conclusive grounds decision had not yet been made. i) In relation to factor 7, the argument that section 61 of the Nationality and Borders Act 2022 applied and the Claimant therefore could not be removed until, on the facts of this case, the conclusive grounds decision, is not one which I need to determine. However, in SLP v Prosecutor General of the Republic of Latvia [2025] EWHC 298 (Admin) it was held that section 61 does not apply to extradition. Even assuming that the argument had been correct, it would simply have meant that if the Request was disposed of before the conclusive grounds decision the Claimant could not be removed until that decision had been made. This consideration was not of sufficient relevance to mean that any failure on the part of the Minister to consider it rendered the Decision irrational. ii) As to factor 8, whilst Portugal is a signatory to the ECAT it did not follow from the decision that the Request should take precedence that there could be no cooperation with Portugal and no investigation of the grooming of the Claimant. In any event, this was not of such relevance that any failure to consider it rendered the Decision irrational.

Conclusion on Ground 3

[170]I therefore give permission and allow the claim under Ground 3 to the extent indicated above but not otherwise. Ground 4: breach of section 6 of the Human Rights Act 1998 Section 70(11) of the Extradition Act 2003

Ground 4: breach of section 6 of the Human Rights Act 1998

[171]As noted above, section 70 of the 2003 Act deals with the requirement that the SSHD certify a request from a Category 2 territory. Subsections (10) and (11), which were added by amendment by the Crime and Courts Act 2013, provide as follows:
“(10) Subsection (11) applies at all times after the Secretary of State issues a certificate under this section. (11) The Secretary of State is not to consider whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.”
[172]On the basis of this provision, Ms Cumberland submitted that Ground 4 is misconceived.

The Claimant’s argument

[173]The Claimant’s Statement of Facts and Grounds (at [116]-[118]) points out that the SSHD is a public authority and alleges that the SSHD’s “failure to take into account” the Claimant’s human rights was in breach of section 6 of the 1998 Act. Various articles of the ECHR are referred to and it is also alleged that insofar as the SSHD’s policy was not to take into account human rights, that policy is unlawful and contrary to the 1998 Act. The Claimant’s skeleton argument also appeared to be putting this Ground on the basis that the alleged breach of section 6 was the SSHD’s failure to take into account his human rights: see [83] and [84] of that document.[174]At the hearing I expressed doubts to Mr Cooper about whether failure to take into account human rights is capable, in itself, of amounting to a breach of section 6 of the 1998 Act. The issue under section 6(1) is whether the public authority has acted or is acting “in a way which is incompatible with a Convention right” rather than whether it considered whether it was acting incompatibly with a Convention right or considered human rights more generally. Mr Cooper said that in fact his case was that it was incompatible with the Claimant’s Convention rights for the SSHD to order that the Warrant be deferred in favour of the Request. He also said that the only Convention right relied on by him was Article 8 ECHR.[175]Mr Cooper’s argument was that section 70(11) only prohibits consideration by the SSHD of the question whether complying with an individual extradition request would be contrary to section 6 of the 1998 Act. This is why the section refers to “the extradition”. He referred to the Scott Baker Review at [11.72] and submitted that Section 70(11) was enacted for a specific purpose, namely to prevent Ministers from having to duplicate consideration of Convention rights which the courts are required to address, and to ensure that fresh evidence of human rights issues in relation to that same single request should go before a court instead of the Minister. In contrast, section 179 is concerned with a comparison of competing requests and, argued Mr Cooper, the relative impact on human rights of the these requests. Section 70(11) does not bite on this question.[176]Mr Cooper submitted that section 70(11) therefore does not prevent SSHD from weighing the proportionality of competing requests based on Convention rights and principles, pursuant to Article 8 ECHR. He relied on Soering v United Kingdom 14038/88 at [110]-[111], albeit this was an Article 3 case, where, he submitted, the possibility of a trial in the defendant’s home country was held to be a relevant circumstance for the purposes of the overall assessment. Similarly, he argued, it might be proportionate for the purposes of Article 8 for a requested person to be extradited to country A absent any alternative, but disproportionate if there is an alternative trial forum which is more compatible with the requested person’s Article 8 rights. As a public authority, the SSHD was required by section 6 of the Human Rights Act 1998 to determine this question if it arose.

Discussion and conclusion

[177]I refuse permission in relation to Ground 4.[178]Ultimately, Mr Cooper did not actually develop an argument that deferring the Warrant and allowing the Request to proceed was contrary to Article 8 ECHR in the present case. Nor was the feasibility or otherwise of human rights arguments based on the availability of extradition to an alternative requesting State fully addressed in Counsel’s submissions. This may have been because the answer is straightforward: if such arguments are feasible in principle they can and should be raised in the courts. If it is right that, say, the availability of extradition to Portugal renders extradition to the USA disproportionate that will be a bar to extradition to the USA. It is therefore an argument which can be raised in the proceedings relating to the Request. In the present case, that would mean the appeal against the order of District Judge Sternberg, but in another case it might be in the Magistrates’ Court. That is not to say that the argument is feasible as a matter of principle or is sound on the facts of the present case - I express no view as to that – but, whether it is or it is not feasible or sound is in my view a matter for the courts, and the answer will not be different according to whether it is decided by the courts or the SSHD.[179]As for Mr Cooper’s attempt to circumnavigate section 70(11): i) The argument based on the words “the extradition” goes nowhere. The comparative argument which he wishes to run is that “the extradition” to the USA pursuant to the Request certified under section 70 is incompatible with Article 8 ECHR because of the availability of extradition to Portugal. That amounts simply to a factual development – the Warrant – which is said to affect the proceedings in the courts relating to the Request. Consideration of this argument by the SSHD is clearly prohibited by section 70(11) whereas, as I have said, if it is a sound argument it will succeed in those proceedings. ii) This analysis does not require me to rely on what was said in the Scott Baker Review but the parties agreed that I could refer to it in order to determine the mischief which the amendment to the 2003 Act was intended to address: see Fothergill v Monarch Airlines [1981] AC 251 at 281C. For what it is worth, the analysis which I have set out above is entirely consistent with what was said in that Review, where the recommendation was to reserve the determination of human rights issues to the courts, which are better equipped to decide them in this context, and to avoid delays consequent on the SSHD being asked to address human rights issues in addition to the courts: see e.g. [1.33] and [1.34], [9.24]-[9.39] and [11.71]-[11.72].[180]Finally, I note that the SSHD may be called upon to make the section 179 decision long before it is clear whether extradition to one or other of the requesting States will be consented to or ordered. The facts of the present case – where there is consent to extradition to Portugal and the availability of an alternative forum is therefore clear – are not necessarily typical. In other cases, where a number of bars to extradition may be raised in the proceedings relating to each of the competing requests, it is not clear, on Mr Cooper’s argument, how the SSHD is to evaluate the likelihood of extradition to the requesting State which the requested person favours on Article 8 grounds. Without being clear that extradition to this State is a genuine alternative, it is not clear how the SSHD is to decide what weight this consideration should be given. This, in itself, suggests that this is not a task which Parliament intended the SSHD to undertake. Ground 5: breach of Article 4 ECHR and the ECAT

The arguments of the parties

[181]This Ground was argued on behalf of the Claimant by Ms Foot. As under Ground 4, although the heading in the Statement of Facts and Grounds and the Claimant’s skeleton argument alleges breach of Article 4 ECHR and the ECAT, the pleaded complaint was that there had been a failure on the part of the SSHD to consider her obligations under these provisions. This was said to amount to a breach of the United Kingdom’s protective duty under Article 4 ECHR to make enquiries as to the Claimant’s psychological recovery needs and whether they are better achieved in Portugal or the USA. Reliance was placed on R (TDT (Vietnam)) v Secretary of State for the Home Department [2018] EWCA Civ 1395 at [17] ). It was also said to amount to a breach of the duty, under Article 32 ECAT, to investigate the grooming of the Claimant including by making enquires with the Portuguese authorities.[182]Ms Cumberland relied on section 70(11) of the 2003 Act. She also submitted that the duties of the United Kingdom under Article 4 ECHR and the ECAT do not form part of the SSHD’s decision making process under the 2003 Act and there is no basis on which these factors were required to be addressed by the SSHD at that stage of the proceedings. The Claimant was in any event protected by the conclusive grounds decision.

Discussion

[183]As far as Article 4 ECHR is concerned, this provides that:
“(1) No one shall be held in slavery or servitude. (2) No one shall be required to perform forced or compulsory labour.”
[184]For the reasons I have given, I accept Ms Cumberland’s submission that the question whether there would be a breach of Article 4 in the event of the extradition of the Claimant to the USA was, by reason of section 70(11) of the 2003 Act, not a matter for the SSHD. It was a matter for the courts in the context of the proceedings relating to the Request. Moreover, I also fail to see how a decision by the SSHD to leave this question to the courts was a breach of Article 4 nor why, given that the courts would consider it, it was irrational for the SSHD not to take this question into account. The proposition that because the Claimant had been a victim of forced criminality in the past his extradition to the USA would be contrary to Article 4, was also not clearly explained.[185]Article 32 ECAT, which sets out “General principles and measures for international cooperation” states that:
“The Parties shall co-operate with each other, in accordance with the provisions of this Convention, and through application of relevant applicable international and regional instruments, arrangements agreed on the basis of uniform or reciprocal legislation and internal laws, to the widest extent possible, for the purpose of: – preventing and combating trafficking in human beings; – protecting and providing assistance to victims; – investigations or proceedings concerning criminal offences established in accordance with this Convention.” – preventing and combating trafficking in human beings; – protecting and providing assistance to victims; – investigations or proceedings concerning criminal offences established in accordance with this Convention.”
[186]In the course of her submissions I asked Ms Foot how this provision, which forms part of an unincorporated international treaty, could be enforceable at the suit of the Claimant or justiciable in the Administrative Court. I had in mind JH Rayner (Mincing Lane) Ltd v Department for Trade and Industry [1990] 2 AC 418, R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, [2021] 3 WLR 428 and also the non-specific terms and the overall nature of Article 32, which contemplates more specific laws and arrangements. She said that she would reflect on this question and get back to me, but neither she nor Mr Cooper returned to this point. In any event, why I should assume that such cooperation would not be possible if the Claimant was extradited to the USA was never made clear.

Conclusion on Ground 5

[187]I therefore refuse permission in relation to Ground 5.

Section 31(2A) of the Senior Courts Act 1981

[188]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).[189]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). The Additional Point The arguments of the parties

The Additional Point

[190]Mr Evans’ argument was as follows: i) The categories of situation where a warrant is to be regarded as “disposed of” for the purposes of the 2003 Act include, under section 213(1)(c), “when an order is made for the person’s extradition in pursuance of the warrant and there is no further possibility of an appeal”. The same is true, under section 213(2)(c), in relation to requests for extradition. ii) In this case, on 6 March 2024 the Claimant consented to his extradition. That consent was irrevocable (section 45(4)(c)) and it meant that there could be no appeal from any extradition order under sections 46 or 48: section 26(2). iii) Albeit as a result of the failure to inform him of the Request, on 6 March District Judge Snow made an extradition order pursuant to section 46(6) and thereby “disposed of” the Warrant. iv) Although the District Judge’s order has been quashed by consent, by order of Choudhury J, this was on 20 June 2025. The extradition order was a court order and therefore was effective until such time as it was quashed. Unlike what might be the position in relation to a given administrative decision, court orders which are quashed are not to be regarded as void ab initio: see R (Majera) v Secretary of State for the Home Department [2021] UKSC 46, [2022] AC 461 (“Majera”). v) That being so, as at 14 March 2024 when the Decision was made, the Warrant had been “disposed of” in law. vi) Section 179(2) sets out the orders which may be made (see [17] above for the full text of section 179). a) An order under section 179(2)(a) can only be made “if neither the warrant nor the request has been disposed of” whereas the Warrant in this case had been disposed of at the time of the Decision; b) An order under section 179(2)(c), which is what the Claimant would have contended for, would have been an order that extradition pursuant to the Request be deferred “until the warrant has been disposed of” but the Warrant had been disposed of; c) The only option available to the Minister was therefore to make an order under section 179(2)(b) i.e. that extradition in pursuance of the Warrant be deferred until the Request had been disposed of. This, in effect, is the Order which the SSHD made. vii) Therefore, as at 14 March, the SSHD could not sensibly have made the decision contended for by the Claimant. The only order which was open to him was the one which he made.[191]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.[192]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.[193]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.[194]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.[195]In their written submissions dated 9 July 2025, Counsel for the Claimant put forward the following arguments in relation to the Additional Point: i) First, that the USA’s argument was based on a misunderstanding of Majera. Although Majera establishes a general rule that a court order must be obeyed until and unless it is set aside or varied by a court “there is a more nuanced question about the effect of an unlawful decision or court order in the interim period between the date it is made and the date it is set aside”. Relying on R (N3 & Another) v Secretary of State for the Home Department [2025] UKSC 6, [2025] 2 WLR 386, which it was submitted was an analogous case, the Claimant argued that the question of the effect of a decision being quashed is a matter to be decided in the particular statutory context in which the issue arises. Majera does not establish a rule that a court order can never be retrospectively invalidated. The correct position, in the present statutory context, is that as a consequence of the quashing order of Choudhury J the SSHD is bound to treat District Judge Snow’s extradition order as if it had never been made. Essentially, this is because the scheme of the 2003 Act contemplates that District Judge Snow would have been informed of the Request and, applying section 51, he would not have made an extradition order. The SSHD would then have had “full discretion” under section 179(2). The USA’s analysis is therefore contrary to the statutory scheme in that its effect is that the SSHD has no discretion. ii) Second, that the USA’s argument would undermine the intention of District Judge Snow and the statutory Scheme of the 2003 Act. This argument is based on some claims about the District Judge’s intentions, and what he decided, which do not appear to reflect his witness statement. However, what does appear to be common ground is that District Judge Snow accepted that a mistake had been made but believed that the interests of justice were protected by section 179 and ordered that the Claimant should not be removed pending the SSHD’s decision under section 179. The Claimant therefore submits that it was not the District Judge’s intention that the SSHD’s discretion under section 179 would be fettered in the manner contended for by the USA and the SSHD. iii) Third, that Mr Evans’ argument would lead to injustice in this case in that the Claimant would have no remedy in relation to the Decision.[196]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.[197]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.[198]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.

Discussion

[199]I agree largely agree with Mr Evans’ analysis as summarised at [190(i)-(vii)] above. i) Majera confirms that it is a well-established principle of our constitutional law that a court order has to be obeyed unless and until it has been set aside or varied by the court, or overruled by legislation, regardless of whether the order was valid or invalid, regular or irregular, and whether made by a court of unlimited or limited jurisdiction. The rationale for this rule lies in the rule of law and the basic principle that court orders should not be ignored. It therefore follows that neither the executive nor any other body or person may lawfully act in a manner which is inconsistent with an order of a judge which is considered to be defective without first applying for, and obtaining, the variation or setting aside of the order. ii) In the present case the Magistrates’ Court had made an order and the SSHD was required to proceed on the basis that that order was in effect until such time as it was set aside or varied. At the time of the Decision, the Warrant had therefore been “disposed of” within the meaning of section 213(2)(a) of the 2003 Act for the reasons which Mr Evans gives, and therefore for the purposes of section 179(2). It therefore would not have made sense for the Minister to order that the Request be deferred until the Warrant had been “disposed of”. iii) N3 is not an analogous case because it did not concern the effect of quashing a court order. As the Supreme Court made clear in Majera, the rule which their Lordships identified applies specifically to court orders rather than administrative decisions and acts, which are subject to different principles. N3 concerned orders under section 40(2) of the British Nationality Act 1981 depriving the claimants of British citizenship. The orders had been made by the SSHD rather than a court. One of the issues before the Supreme Court was as to the effect of a subsequent decision of the Special Immigration Appeals Commission (“SIAC”) to allow an appeal against the SSHD’s decision on the grounds that it rendered the claimants “stateless”. The fact that the Supreme Court held that the decision of the SSHD had no effect for the purpose of determining the status of the claimants between the decisions of the SSHD and the SIAC is of no assistance in the present case. iv) More fundamentally N3, and R v Soneji [2005] UKHL 49, [2006] 1 AC 340 and A1 Properties (Sunderland) Ltd v Tudor Studios RTM Co Ltd [2024] UKSC 27, [2024] 3 WLR 601, to which their Lordships referred as providing the basis for their analysis in N3, were about the legal effect of a failure to comply with a condition for the exercise of a power conferred by statute (see [88] of N3). That is not the issue here. In the present case District Judge Snow applied the relevant provisions of the 2003 Act correctly on the information available to him at the time, rather than failing to comply with a condition precedent to the exercise of his power to make an extradition order. v) Similarly, I do not accept that Mr Evans’ interpretation is somehow contrary to the aims, the scheme or the terms of the 2003 Act. Rather, it is based on what the statute intended on the facts as they were understood and/or were at the relevant times. The District Judge was not informed of the Request and applied the statute correctly in these circumstances. Under the terms of the statute, orders under sections 179(2)(a) and (c) were not open to the SSHD as at 14 March 2024. vi) I therefore do not accept that, as a matter of construction of the 2003 Act or otherwise, the effect of Choudhury J’s quashing order is that this court should proceed as if the order of District Judge Snow was never made.[200]Where I part company from Mr Evans and Ms Cumberland, however, is that I do not accept that the only option available to the SSHD as at 14 March 2024 was to make an order under section 179(2)(b). That was not the view of the person who drafted the Submission and there is no evidence that it was the view of the Minister: there is no witness statement from him and all of the evidence is to contrary effect. Nor, on the evidence, was the Decision made pursuant to section 179(2)(b). It was made pursuant to section 179(2)(a) and the exercise was conducted on the basis that he should make a choice between the Request and the Warrant and had full discretion in this regard, albeit the recommendation was to give precedence to the former.[201]There is also no evidence as to what the Minister would have done if the Submission had presented the position accurately. In relation to Ground 1, he was not told that he should consider representations. As I have found under Ground 2, the factual picture which was presented to him was materially inaccurate in favour of giving precedence to the Request. In relation to Ground 3, the matter was also presented to the Minister on the basis that the personal interests of the Claimant were irrelevant, when they were relevant. He was also told that there was a 14 March 2024 deadline for a decision when in fact District Judge Snow had ordered that the Claimant should not be extradited until the section 179 decision had been taken. And he was told, in effect, that the error which became the subject of Claim 2 could not be corrected when in fact an application could be made to the Administrative Court for the order of District Judge Snow to be quashed.[202]If the Submission had presented the position accurately it would have been open to the Minister to invite representations but postpone making the decision until the error of District Judge Snow had been corrected, or to invite representations and consider the matter on the merits on a provisional basis with a view to taking steps to quash the order for extradition to Portugal if the Minister was minded to defer the Request. Certainly, it seems unlikely that if the facts had been presented accurately, the Minister had been told that he would normally (i.e. absent District Judge Snow’s error) be required, in fairness, to hear representations and that he had an indefinite amount of time to make his decision, he would nevertheless have decided to take advantage of the error which had been made, press on and then defend this approach on the basis of a decision of the District Judge which was regarded as erroneous and, it was considered, ought to be quashed for this reason.[203]All of this being so, I do not accept that the Claim is academic because there was only one decision open to the SSHD as at 14 March 2024. Nor do I accept that relief should be refused for this reason.

Conclusion

[204]For the reasons which I have given I will therefore make an Order quashing the Decision.[205]The draft of my judgment which was sent out to the parties on 8 September 2025 said that I proposed to direct that the GLD provide a full explanation of the errors which were made in relation to Annex B to the Submission, and whether the Minister had sight of the Request and the Warrant (see [66]-[74], above). Before the promulgation of this judgment, on 10 September 2025, the GLD provided a detailed explanation and further apologies were made, including for any perceived lack of appreciation of the seriousness of these errors. I am told that there was a series of errors and misunderstandings in relation to Annex B for which the GLD takes responsibility. I am told that the errors in relation to the Request and the Warrant arose from a factual misunderstanding on the part of Counsel for which Ms Cumberland takes responsibility and apologises profusely. Subject to any submissions from the other parties, and having expressed my views on the matter earlier in this judgment, I propose to let it rest there.