Diogo Santos Coelho, R (on the application of) v Secretary of State for the Home Department

When deciding which of competing extradition claims should take precedence under section 179 of the Extradition Act 2003, the Secretary of State must act fairly. This ordinarily requires the requested person, and the competing requesting States where fairness requires, to have an opportunity to make focused representations.

The discretion is broad and must address the statutory factors, but it also requires due consideration of all the circumstances, including the requested person’s interests. The Secretary of State may manage representations by imposing tight deadlines. A decision based on material mistakes about the alleged offending or the location of victims is unlawful where those mistakes materially affect the assessment.

The claimant faced competing extradition proceedings. The United States had made a Part 2 request, while Portugal had issued a Part 1 warrant concerning substantially overlapping conduct. The Secretary of State decided under section 179 of the Extradition Act 2003 that proceedings on the Portuguese warrant should be deferred until the United States request had been disposed of.

The claimant challenged that decision on procedural fairness, mistake of fact, failure to consider relevant considerations, human rights, and trafficking-related grounds. The court also considered whether relief was unavailable because the Portuguese warrant had already been disposed of by a magistrates’ court order later quashed by consent.

1. Outcome. Permission was granted on Grounds 1 and 2 and the claim was allowed on both. Permission was granted in part on Ground 3 and the claim was allowed to that extent. Permission was refused on Grounds 4 and 5. The Secretary of State’s decision was quashed.
2. Procedural fairness. The difference between extradition to Portugal and the United States was sufficiently important to engage the common-law duty of fairness. Section 179 did not expressly or impliedly exclude that duty. The claimant should have been permitted to make representations, including on the comparative impact of extradition on his interests. The requesting States should also have had an opportunity to respond where fairness required it. The process could be managed within the statutory timetable by setting appropriate deadlines.
3. Scope of the discretion. Section 179(3) identifies mandatory, non-exhaustive considerations. The Secretary of State must give due consideration to all the circumstances, including the requested person’s interests. Human-rights questions concerning whether extradition to a particular State is barred remain matters for the courts under section 70(11), but comparative personal interests may be relevant to the precedence decision.
4. Mistake of fact and relevant considerations. The submission wrongly described the allegations as identical, although the Portuguese warrant included additional money-laundering and tax-fraud allegations connected with Portugal. It also wrongly or confusingly presented the victims as being exclusively in the United States. These matters materially affected the assessment of relative seriousness and the place of the alleged offending. The Secretary of State also failed to consider the claimant’s personal interests, including the comparative mental-health and suicide risks.
5. Additional point. The magistrates’ court order meant that the Portuguese warrant had been disposed of for the statutory purposes at the date of the decision. The Secretary of State therefore could not defer the United States request until the warrant had been disposed of. However, this did not mean that only the decision taken was legally open. The erroneous factual and legal presentation left open lawful alternatives, including inviting representations and postponing the decision.
6. Other grounds. The court refused permission on the arguments based on section 6 of the Human Rights Act 1998, Article 4 ECHR and Article 32 ECAT. Human-rights and Article 4 issues were for the courts in the extradition proceedings, and no enforceable basis for the ECAT argument was established.

First-instance judicial review. The judgment records a pending appeal concerning the United States extradition order, but this claim concerned the Secretary of State’s separate decision under section 179 of the Extradition Act 2003.