Justice Minister’s decision to prioritise extradition to the US over Portugal quashed - natural justice prevails for competing extradition requests
The High Court upheld a judicial review by a vulnerable autistic man accused of cyber crime, establishing new defence rights within the Extradition Act 2003 in a victory for natural justice.
In R (Coelho) v Secretary of State for the Home Department, the Administrative Court (Linden J) quashed a decision of the Secretary of State for the Home Department (SSHD) to prioritise extradition to the USA over Portugal.
The Claimant, Diogo Santos Coelho, a 25-year-old Portuguese citizen, is accused of controlling and administering a website known as RaidForums, a Clearnet hacking forum distributing data breaches. He is an accepted victim of modern slavery. The Home Office recognised he was groomed by adults online when he was a child and coerced into setting up Raidforums. He is autistic and has been assessed by psychiatrists as at extremely high risk of suicide if extradited to the USA.
The Claimant is subject to competing extradition requests from the USA and Portugal. The Claimant consented to extradition to Portugal and is appealing his extradition to the USA. In March 2024, the SSHD decided to defer his extradition to Portugal until after his extradition to the USA (s179(2) of the Extradition Act 2003).
The Claimant issued a claim for judicial review against the SSHD’s decision including grounds that the decision was (1) procedurally unfair, since the SSHD did not consider any information from him or the Portuguese authorities relevant to the statutory test; (2) based on material errors of fact; and (3) failed to take into account material considerations.
The Court allowed the claim on these three grounds.
On Ground 1, Linden J rejected the Minister’s case that the scheme of the 2003 Act excluded the common law duty to afford the Claimant an opportunity to make representations addressing the differential impact of extradition to the USA, compared to Portugal. The Minister wrongly failed to consider: the Claimant’s proximity to family and friends in his home country; his connection with the Portuguese legal systems; his rights and the likely outcomes in the criminal process; his right to support in relation to his mental health as a victim of modern slavery; his autism diagnosis; and his risk of suicide in the US federal custody. The court found that the Clamant ought to have been given an opportunity to make representations [116]-[118]. The opportunity for the USA and Portugal to make representations is also conducive to better informed decision making by the SSHD [119].
On Ground 2, the court found that the SSHD was wrongly advised that offences charged in the US request and the Portuguese warrant were “identical”, whereas the Portuguese warrant included wider conduct including money laundering and tax fraud. In addition, the decision was based on the incorrect premise that all the victims of offending were in the USA, whereas a key victim was the Portuguese state [145]-[147].
As to Ground 3, the court found that the SSHD irrationally failed to take into account the greater seriousness of the Claimant’s alleged offending in Portugal, his personal interests and ties to Portugal and his mental health [163]-[169].
The Claimant was represented by Ben Cooper KC leading Helen Foot and Amelia Nice instructed by Guy Mitchell and Francesca Cociani at Hodge Jones & Allen solicitors.
Mr Coelho’s case has been reported in the national and international press, including in The Guardian, the Mirror, the Daily Mail and the BBC.
