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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Lloyd v Secretary of State for the Home Department [2025] EWHC 656 (Admin) (19 March 2025) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2025/656.html Cite as: [2025] EWHC 656 (Admin)

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IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		19 March 2025

This judgment was handed down remotely at 10.00am on Wednesday 19^th March 2025 by circulation to parties or their representatives by e-mail and by release to the National Archives.

Mr Justice Johnson:

1. The Secretary of State made an order for the appellant's extradition to Canada. The order gave an incorrect date for the underlying extradition request. Nine days later (and within the statutory period for the making of an extradition order), the Secretary of State withdrew the first order and made a second order for the appellant's extradition. This one gave the correct date for the underlying extradition request.
2. The appellant accepts that the only rational decision the Secretary of State could have made was to order the appellant's extradition. She nevertheless appeals against the second order. She says that the first order was presumptively valid, that the second order was invalid because the Secretary of State had no power to withdraw the first order and make the second order, and that the appeal against the second order must therefore be allowed.
3. The Secretary of State says that the first order was invalid because it referred to a non-existent extradition request, and the second order is valid. She says that the appeal must therefore be dismissed.

The facts

4. Between June and November 2015, the appellant (as she admits) defrauded her employer in Canada of the equivalent of about £1,000,000. She did so by setting up a company with a similar name to that of a legitimate contractor and then arranging for payments to be made from her employer to that company. The appellant came to the United Kingdom on 1 November 2015 to avoid arrest.
5. An extradition request was initially made in November 2017. The appellant argued that she should be discharged. The Chief Magistrate, Senior District Judge Arbuthnot, rejected each of the arguments raised by the appellant as to why she should be discharged, and sent the case to the Secretary of State. The Chief Magistrate found that the appellant's evidence was dishonest, including as to the making of false assertions that she had attempted suicide: "In a number of respects, the defendant misrepresented to the court but also to her own expert… certain aspects of her history. It is rarely the case that a defendant or requested person and his or her witnesses are ready to go to such lengths to mislead a court but I find that this has happened in this case." An appeal against the Chief Magistrate's decision was dismissed by Whipple J on 27 October 2020: Lloyd v Government of Canada [2020] EWHC 2832 (Admin).
6. The Secretary of State made an order for the appellant's extradition. The appellant was surrendered to Canada on 25 June 2021. She was released on conditional bail on 3 July 2021. She absconded and returned to the United Kingdom on 18 July 2021, in breach of her bail conditions.
7. A further extradition request was made on 27 January 2023. The request was made in respect of the offence of fraud and also in respect of six counts of breach of release conditions.
8. The Secretary of State certified that the request was valid. On 15 April 2023, the Government of Canada withdrew the request so far as it concerned the six counts of breach of release conditions, leaving in place the request in respect of the count of fraud.
9. The appellant again argued that she should be discharged. District Judge Zani, like the Chief Magistrate, rejected each of the arguments raised by the appellant as to why she should be discharged, and sent the case to the Secretary of State. Judge Zani, like the Chief Magistrate, found that the appellant had told many untruths to the court and her expert witnesses "as and when it suited her to do so… Put shortly I find that Mrs Lloyd… has exaggerated or deliberately told untruths about a number of matters about which she complains regarding her treatment within the Canadian prison estate. I find that her motivation for doing so is driven by her desire not to be extradited and to try to bolster her challenges to extradition." Judge Zani sent the case to the Secretary of State.
10. On 15 January 2024, the Minister of State for Security signed a document confirming that there are specialty arrangements with Canada. On the same day, the Minister signed a document which was entitled "order for extradition pursuant to section 93 of the Extradition Act 2003". It states:

"Whereas Carol Lloyd, ("the Person") is accused in the jurisdiction of Canada, being a territory designated for the purpose of Part 2 of the Extradition Act 2003 ("the 2003 Act"), of the commission of offences;

Whereas on 29 March 2023, the Person was arrested pursuant to a request for her extradition made by Canada;

Whereas on 27 November 2023, the District Judge at Westminster Magistrates' Court sent the case to the Secretary of State to consider whether to order the extradition of the Person under the 2003 Act;

And whereas the extradition of the Person to Canada is not prohibited by the 2003 Act;

Accordingly, under section 93 of the 2003 Act, the Secretary of State hereby orders the Person to be extradited to Canada for the charges within the extradition request from the Canada dated 19 January 2023."

11. The date given for the extradition request, 19 January 2023, was incorrect. Also, the appellant fell to be extradited for a single charge, not charges in the plural.
12. The order was sent to the appellant's solicitor with a covering letter which says:

"…the Minister of State is of the opinion that he is not prohibited from ordering Ms Lloyd's extradition on any of the relevant grounds set out in sections 93(2) of the Extradition Act 2003, as to the death penalty (section 94), speciality (section 95), earlier extradition to the UK from another territory (section 96) or earlier transfer to the UK by the International Criminal Court (section 96A)."

13. On 23 January 2024, the appellant lodged an appeal against the decision of the District Judge. Permission to appeal against that decision has since been refused, both on the papers and following an oral hearing of a renewed application for permission to appeal.
14. On 24 January 2024, the Minister of State for Security signed a further document which was entitled "order for extradition pursuant to section 93 of the Extradition Act 2003". It was in identical terms to the previous document, save that the final paragraph reads:

"Accordingly, under section 93 of the 2003 Act, the Secretary of State hereby orders the Person to be extradited to Canada for the charges within the extradition request (No. LDN-353) from Canada, dated 27 January 2023, save for the six charges of breach of release conditions… which were withdrawn by the Diplomatic Note (No. LDN-387) dated 14 April 2023."

15. The order was sent to the appellant's solicitor with a covering letter which says:

"Attached is an extradition Order, dated 24 January 2024, which replaces the Order signed by the Minister of State on 15 January 2024. The Order dated 15 January 2024 is not a valid order for the purposes of the Act because it refers to an extradition request from Canada dated 19 January 2023, but no such extradition request exists. The Order dated 24 January 2024 refers to the correct extradition request with reference No. LDN-353 dated 27 January 2023, and is the relevant Order for the purposes of sections 93 and 100 of the Act.

Ms Lloyd's appeal rights begin today, 24 January 2024, the date of service of the new Order dated 24 January 2024."

16. The appellant appeals against that order.

Legal framework

17. Canada is a territory designated by the Secretary of State for the purposes of Part 2 of the Extradition Act 2003: Extradition Act 2003 (Designation of Part 2 Territories) Order 2003. Part 2 of the 2003 Act makes provision for the making of extradition requests by category 2 territories (section 69), for the certifying of such requests by the Secretary of State (section 70), and for the issue of an arrest warrant for the requested person (section 71). Once the requested person is arrested, she must be brought before the appropriate judge as soon as practicable: section 72(3).
18. The judge must then take a number of prescribed steps to decide whether the requested person should be discharged: sections 78-87 and 88-91. If the judge does not discharge the requested person then the judge must send the case to the Secretary of State for her decision as to whether the person is to be extradited: section 87(3).
19. Judge Zani sent the case to the Secretary of State under section 87(3) for a decision as to whether the appellant is to be extradited. The Secretary of State was then required to decide whether extradition was prohibited under section 94 (death penalty), 95 (specialty), 96 (earlier extradition to the United Kingdom from other territory) or 96A (earlier transfer to the United Kingdom by the International Criminal Court): section 93(2).
20. If those questions were decided in the negative, then (leaving aside circumstances that do not here arise) the Secretary of State was required to order the appellant's extradition to Canada: section 93(4). That order had to be made within 2 months: section 99(3). It had to be made under the hand of the Secretary of State or a Minister of State or a Parliamentary Under-Secretary of State or a senior official: section 101(1).
21. The Secretary of State was required to inform the appellant and the interested party of the order: section 100(1).
22. There is a right of appeal against an extradition order made by the Secretary of State under Part 2 of the 2003 Act: section 108.
23. Section 109 states:

"109 Court's powers on appeal under section 108

(1) On an appeal under section 108 the High Court may—

(a) allow the appeal;

(b) dismiss the appeal.

(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.

(3) The conditions are that—

(a) the Secretary of State ought to have decided a question before him differently;

(b) if he had decided the question in the way he ought to have done, he would not have ordered the person's extradition.

(4) The conditions are that—

(a) an issue is raised that was not raised when the case was being considered by the Secretary of State or information is available that was not available at that time;

(b) the issue or information would have resulted in the Secretary of State deciding a question before him differently;

(c) if he had decided the question in that way, he would not have ordered the person's extradition.

(5) If the court allows the appeal it must—

(a) order the person's discharge;

(b) quash the order for his extradition."

24. Section 116(1) states:

"A decision under this Part of the… Secretary of State may be questioned in legal proceedings only by means of an appeal under this Part."

25. The Secretary of State was required to inform the appellant of her right of appeal: section 100(1).

Submissions

26. David Perry KC, for the appellant, submits that the 2003 Act provides a complete code to regulate the extradition process. In Part 2 cases, the Secretary of State has an important part to play at different stages of the process. Once the case has been sent to the Secretary of State, she must make an order. The order that the Secretary of State makes must be an order for extradition or an order for discharge. That decision is regulated by section 93. Once the Secretary of State makes an order, she is functus officio and does not have any power to set aside or vary the order or to change the statutory timetable, whether under a "slip rule" or otherwise: R (Klimeto) v City of Westminster Magistrates' Court [2012] EWHC 2051 (Admin) [2013] 1 WLR 420 per Hughes LJ, Burnett J and Nicol J at [28]. The Secretary of State is therefore functus officio once the decision has been made: R v Parliamentary Commissioner for Administration ex parte Dyer [1994] 1 WLR 621, R (Commissioner of Police of the Metropolis) v Independent Police Complaints Commission [2015] EWCA Civ 1248 per Vos LJ at [42], R (Piffs Elm Ltd) v Commissioner for Local Administration in England [2023] EWCA Civ 486 [2024] KB 107 per Elisabeth Laing LJ at [93] - [98]. It was not for the Secretary of State to decide whether the first order was or was not valid. That is a judicial function, and the order was presumptively valid unless or until it was set aside by the court. The Secretary of State therefore had no power to make the second order, and it was invalid. The Secretary of State accepts that the first order was materially defective. It follows that there is no valid order for the appellant's extradition and she must be discharged. Alternatively, the enforcement of the second order amounts to an abuse of the court's process because it undermines the integrity of the statutory scheme: Jasvins v Latvia [2020] EWHC 602 (Admin).
27. It follows, submits Mr Perry, that the appeal must be allowed by reason of section 109(2) read with section 109(4). That is because this raises a new issue (namely whether the Secretary of State had power to make the second order) which was not (and could not have been) previously raised, and which would have resulted in the Secretary of State deciding to discharge the appellant.
28. Ben Watson KC, for the Secretary of State, submits that one of Parliament's key intentions in passing the 2003 Act was to facilitate extradition and reduce the scope for technical arguments of the type advanced by the appellant: Office of the King's Prosecutor, Brussels v Cando Armas [2005] UKHL 67 [2006] 2 AC 1 per Lord Hope at [44]. An extradition order must relate to an identifiable request. The first order was invalid because it did not do so. The Secretary of State had ongoing responsibilities in relation to the extradition process. That included providing information to the appellant and the interested party (section 100), requesting any assurances from the interested party in the event that such assurances were required by the court, and dealing with any interim measures made by the European Court of Human Rights under rule 39 of that court's rules. Further, the authorities recognise that the Secretary of State has an implied power to set aside an extradition order: McKinnon v United States of America [2007] EWHC 762 (Admin) per Maurice Kay LJ at [63], Taylor v Governor of HMP Wandsworth [2009] EWHC 1020 (Admin) per Richards LJ at [12] and [32], R (McKinnon) v Home Secretary [2009] EWHC 2021 (Admin) per Stanley Burnton LJ at [64] – [66]. Those authorities which suggest that there is no such power are concerned with part 1 of the 2003 Act, rather than part 2. It follows that the Secretary of State was not functus officio, and was entitled, even obliged, to remedy the defect in the first order by making the second order. In any event, the complaints made by the appellant do not give rise to a statutory ground of appeal under section 109 of the 2003 Act.
29. Adam Payter, for the Government of Canada, adopts the arguments of the Secretary of State. He also submits that there is a preliminary question as to whether the court has jurisdiction to determine the appeal. That is because the right of appeal only arises where the Secretary of State has made an order for a person's extradition, but on the appellant's case no valid order has been made. Further, he says that it cannot logically be the case that both the first and the second order are invalid. Either the first order was invalid, in which case the Secretary of State had not discharged the statutory obligation to make an extradition order until the second, valid, order was made. Or, alternatively, the first order was valid. Either way, there is an effective order for the appellant's extradition.

Should the appeal be allowed?

30. The Secretary of State made an extradition order. It follows that there is jurisdiction to entertain a statutory appeal under section 108 of the 2003 Act. The grounds on which the court may allow a section 108 appeal are set out in section 109. The appellant must show that the conditions in either subsections 109(3) or 109(4) are satisfied. Otherwise, the court must dismiss the appeal: section 109(2).
31. The conditions in subsection (3) include that the Secretary of State ought to have decided a question before him differently. It is common ground that the reference to a "question before him" is a reference to the questions set out in section 93(2) (that is whether extradition was prohibited on one of four specified grounds, including a risk of the death penalty or a lack of specialty protection). The Secretary of State's answers to each of those questions was "no." It is common ground that this was the only rational answer to each of the questions that was before the Secretary of State. It is therefore common ground that the Secretary of State's answer to each question was correct: the Secretary of State ought not to have decided any of the questions differently. The appellant thus accepts that the court cannot allow the appeal under section 109(3).
32. That leaves the section 109(4) route on which the appellant relies. For an appeal to succeed under section 109(4), three conditions must be satisfied. The first is that there is a new issue: section 109(4)(a). The second is that this issue would have resulted in the Secretary of State deciding a "question before him" differently: section 109(4)(b). The third is that in the light of that different decision, the Secretary of State would not have ordered extradition: section 109(4)(c). Mr Perry's analysis elides the second and third conditions. In doing so, it diminishes the significance of condition 109(4)(b) and there is a risk of overlooking its key element. Under that condition, the appellant must show that the Secretary of State would have decided a question before him differently. The words "question before him" in section 109(4)(b) are the same as in section 109(3)(a). They likewise refer to the statutory questions in section 93(2). The Secretary of State's answers to those questions were "no." The appellant must show that, in the light of the new issue, the answer to at least one of those questions would have been different (that is, the answer would have been "yes"). But the appellant accepts that the only rational answer to each of those questions is, and remains, "no." The new issue concerns the validity of the first order and the Secretary of State's power to make the second order. It does not change the position in relation to death penalty of specialty (or the other section 93(2) factors).
33. It follows that the condition in section 109(4)(b) is not satisfied. The court must therefore dismiss the appeal: section 109(2). Although there is jurisdiction to entertain an appeal, the grounds of complaint that are raised by the appellant do not fit within the scope of the statutory power to allow an appeal.

Should the decision of the Secretary of State be quashed under the Court's supervisory jurisdiction?

34. The final sentence of the appellant's written submissions states:

"…the Court is respectfully invited to allow the appeal pursuant to section 109 of the 2003 Act or (in the alternative, if necessary) to exercise its supervisory jurisdiction and quash the decision of the Secretary of State pursuant to section 31 of the Senior Courts Act 1981."

35. The alternative suggestion that is floated in the final clauses of the final sentence of the written argument implicitly recognises the difficulty in fitting the appellant's underlying complaint into the scope of the strictly curtailed appellate jurisdiction under sections 108 and 109. It also correctly identifies the potential remedy that is available to the appellant if she wishes to quash the order for her extradition on the ground that the Secretary of State is functus officio or otherwise had no power to make the extradition order: she can apply to the High Court for a quashing order under section 31(1)(a) of the Senior Courts Act 1981. For these purposes, I am content to assume, without deciding, that section 116 of the 2003 Act would not preclude such an application (see R (Hilali) v Governor of Whitemoor Prison [2008] UKHL 3 [2008] AC 805 per Lord Bingham at [21], R (Asliturk) v City of Westminster Magistrates' Court [2010] EWHC 2148 (Admin) [2011] 1 WLR 1139 per Stanley Burnton LJ at [18], [23] – [30] and H v Lord Advocate [2012] UKSC 24 [2013] 1 AC 413 per Lord Hope at [32]).
36. The appellant has not made an application for a quashing order. Mr Perry invited me, nevertheless, to exercise the court's jurisdiction under section 31(1)(a) of the court's own motion, without any formal application. I decline to do so. An application for a quashing order "shall be made in accordance with rules of court by a procedure to be known as an application for judicial review": section 31(1)(a). An application for judicial review must be made by filing a claim form promptly, and in any event within 3 months after the grounds to make the claim first arose: CPR 54.5(1). The grounds to make the claim first arose on 24 January 2024. The time for bringing a claim for judicial review has long since passed. There is still no application for permission to claim judicial review and no application for an extension of time within which to make such a claim.
37. Mr Perry says that the court should act of its own motion to remedy a "wrong" or an "illegality." He has not, however, identified any injustice to the appellant that requires a remedy: on the appellant's own case the Secretary of State was required to make an order for her extradition. The only practical effect of quashing the Secretary of State's order would be to cause months of further delay, and to prolong the appellant's incarceration, before her extradition, which is required by law, can take place. That is contrary to the special objective in extradition proceedings. That special objective requires the court to have regard to the importance of dealing swiftly with extradition requests: Criminal Procedure Rule 50.2.
38. Even if a claim for judicial review had been brought in time, and even if the court had considered that there was some technical merit in the appellant's underlying complaint, it does not follow that the extradition order would have been quashed. Judicial review is a discretionary remedy. The Secretary of State was required to make an order for the appellant's extradition. The appellant has suffered no injustice. There is no question of bad faith or high-handed conduct on the part of the Secretary of State. The Secretary of State acted transparently and fairly by clearly explaining to the appellant's solicitor the error in the original decision. The error that was made of giving the incorrect date for the underlying extradition request was not capable of misleading anybody or causing any unfairness to the appellant. There is no reason why, in such circumstances, a court would exercise a discretion to quash the order when that would have no practical purpose and would be contrary to the special objective in extradition proceedings.
39. That all means that questions as to whether the erroneous date invalidated the first order, and whether the Secretary of State had power to amend or clarify the order or to withdraw and replace the order, do not arise. I am grateful for the extensive, careful, and interesting arguments that all parties developed on these issues, but it is not necessary to resolve them.

Outcome

40. The appeal is dismissed.