Carol Lloyd v Secretary of State for the Home Department

On an appeal under section 108 of the Extradition Act 2003, the High Court may allow the appeal only where the statutory conditions in section 109 are satisfied. A new issue concerning the validity of an extradition order or the Secretary of State’s power to replace it does not satisfy section 109(4) unless it would have caused the Secretary of State to answer one of the statutory questions in section 93(2) differently. A separate judicial review claim may be the appropriate route for such a public-law challenge. The court will not ordinarily quash an extradition order where the claimant suffered no injustice, the error caused no unfairness, and quashing would serve no practical purpose or frustrate the requirement for expedition.

The Secretary of State made an extradition order for the appellant’s surrender to Canada. The order contained an incorrect date for the extradition request. Nine days later, within the statutory period, the Secretary of State withdrew and replaced it with an order identifying the correct request and excluding charges previously withdrawn by Canada.

The appellant accepted that the only rational answers to the section 93(2) questions were that extradition was not prohibited. She nevertheless argued that the first order was valid, that the Secretary of State lacked power to replace it, and that the second order was invalid. The central issues were whether those complaints fell within the statutory appeal jurisdiction and whether the court should grant supervisory relief of its own motion.

1. The appeal was dismissed. The High Court had jurisdiction under section 108 because the Secretary of State had made an extradition order.

2. Section 109(3) concerns whether the Secretary of State ought to have answered one of the statutory questions in section 93(2) differently. The appellant accepted that each answer was necessarily no, so section 109(3) could not assist her.

3. Section 109(4) requires three cumulative conditions: a new issue or information; a likelihood that it would have caused the Secretary of State to decide a statutory question differently; and a resulting decision not to order extradition. The appellant’s new issue concerned the validity of the first order and the power to make the second. It did not alter any section 93(2) question. Section 109(4)(b) was therefore not satisfied, and the court was required to dismiss the appeal under section 109(2).

4. The court accepted, without deciding, that a challenge based on lack of power or functus officio could potentially be brought by judicial review under section 31(1)(a) of the Senior Courts Act 1981, notwithstanding section 116 of the Extradition Act 2003. However, no judicial review claim, permission application, or extension-of-time application had been made. The claim would also have been substantially out of time under CPR 54.5(1).

5. The court declined to act of its own motion. The appellant identified no injustice. The error could not have misled her or caused unfairness, and quashing would have caused delay and prolonged her incarceration contrary to the special objective governing extradition proceedings. The court therefore left unresolved whether the first order was invalid and whether the Secretary of State had power to withdraw and replace it.