Karmie Macius De Duarte v Secretary of State for the Home Department

Where an extradition order is quashed on appeal, the High Court may infer a supervisory power to quash a consequential costs order made on the basis of that extradition order. The principle applies under Part 2 of the Extradition Act 2003 whether the successful appeal is brought under section 103 against the appropriate judge’s decision or under section 108 against the Secretary of State’s decision. The court retains a residual discretion and may decline relief where, for example, the appellant’s conduct was vexatious or wholly without merit. In the absence of such circumstances, the removal of the legal basis for the costs order ordinarily justifies quashing it.

The appellant faced Part 2 extradition proceedings arising from a request by Mexico. The Senior District Judge sent the case to the Secretary of State after finding a prima facie case under section 84 of the Extradition Act 2003 and no incompatibility with article 3 ECHR under section 87. The Secretary of State subsequently ordered extradition.

The Senior District Judge made a costs order under section 133(1)(a) and (2). The appellant later appealed under section 108. By consent, Morris J allowed that appeal, quashed the extradition order and discharged the appellant. The issue was whether the High Court had jurisdiction to quash the earlier costs order and, if so, whether it should exercise that jurisdiction.

The application was granted and the 2022 costs order was quashed.

1. Jurisdiction. The principles in Bizunowicz v Poland [2015] 1 WLR 2341 apply to corresponding provisions in Part 2 of the Extradition Act 2003. There is no direct appeal against a costs order made under section 133(1) and (2), and the costs powers on an appeal under section 103 do not create an indirect appeal against that order.
2. Where the High Court allows an appeal and quashes the extradition order, a power to quash a costs order made under section 133(1) and (2) must be inferred into the relevant appellate power. The inference applies equally where the successful appeal is brought under section 108 against the Secretary of State’s decision. Part 2 contains two decision-making stages, but the statutory scheme focuses on the single substantive outcome: extradition or discharge.
3. The conclusion follows from the structure and language of Part 2. No costs order under section 133(1)(a) can be made until extradition has been ordered. When that extradition order is quashed, the legal basis for the costs order disappears and the costs decision becomes void.
4. The existence of jurisdiction does not compel relief in every case. The court retains a residual discretion within its supervisory jurisdiction. It may decline to quash where there are compelling circumstances, including findings that the appellant advanced vexatious or wholly meritless points. No such circumstances existed here. The fact that the interested party incurred costs while successfully resisting issues did not alter the fact that it failed ultimately to secure extradition.

• High Court (King's Bench Division), Administrative Court: By consent, Morris J allowed the appellant’s appeal under section 108, quashed the Secretary of State’s extradition order and discharged the appellant on 6 August 2024. The present judgment determined the consequential application to quash the earlier costs order.