Birkbeck v Principality of Andorra

In a Part 2 extradition case, certification by the Secretary of State does not prevent the District Judge from deciding whether the requested person is an accused and whether extradition is sought for prosecution under section 70(4) of the Extradition Act 2003. The court must determine those factual issues from the request and relevant material, applying a cosmopolitan approach which accommodates differences between legal systems. Judicial review remains the appropriate route for challenging the Secretary of State’s own certification or belief. An investigative step required by a civil-law system before formal prosecution does not, by itself, mean that extradition is sought only for investigation.

The appellant appealed against a District Judge’s decision to send his extradition case to the Secretary of State under section 92 of the Extradition Act 2003. The Secretary of State subsequently ordered extradition to Andorra under section 93(4).

The District Judge held that she had no jurisdiction to decide whether the request stated that the appellant was accused of the specified offence and whether extradition was sought for prosecution. She considered herself bound by Akaroglu v Romania. The central issues before the Divisional Court were whether that conclusion was correct and, if not, whether the request and accompanying material satisfied section 70(4).

1. Appeal dismissed. The District Judge was wrong to conclude that she lacked jurisdiction, but the error did not affect the outcome because the request satisfied section 70(4).
2. The Secretary of State’s certificate confirms that the request was made in the approved way. It does not determine whether the request in fact concerns an accused person or is made for prosecution. Those issues are factual matters for the District Judge, determined from the request and relevant extraneous material. Judicial review is concerned with the Secretary of State’s certification and belief, not with resolving the underlying factual purpose of the request.
3. The reasoning in Boudhiba v National Court of Justice, Madrid applies by analogy to Part 2 cases. The validity of the request is foundational to the court’s jurisdiction, so the court must examine whether the statutory requirements are met. The absence of a corresponding express provision in section 78 does not show that Parliament intended to exclude judicial scrutiny.
4. Akaroglu v Romania was concerned with an earlier version of section 70(4) and did not establish a wider rule preventing a jurisdictional challenge under the current legislation. To the extent that it suggested otherwise, it should not be followed.
5. Whether a person is accused and whether extradition is sought for prosecution must be assessed using a cosmopolitan approach. The court should examine the material as a whole, focus on substance rather than form, and avoid imposing English criminal procedure on a civil-law jurisdiction.
6. The Andorran request referred to proceedings continuing through both the pre-trial and trial stages, and to the appellant being questioned and judged. The requirement that he first provide a declaration was an inherent procedural step and did not make the request investigative only. The appellant was therefore an accused person and extradition was sought for prosecution.

• High Court (Administrative Court), [2023] EWHC 1740 (Admin): dismissed the appeal, while holding that the District Judge had jurisdiction to determine the section 70(4) issues.
• Westminster Magistrates’ Court, 3 June 2022: District Judge Tempia sent the case to the Secretary of State under section 92, holding that she was bound by Akaroglu v Romania and could not determine the challenge to certification.
• Secretary of State for the Home Department, 19 July 2022: ordered extradition to Andorra under section 93(4).