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

These two grounds are inextricably linked. As Ms Ailes, on behalf of the SSHD, realistically accepted at the start of her submissions, if the interests of the individual who is the subject of the competing requests are a relevant factor to take into account when making a decision under s.179, it would necessarily follow that the individual concerned should be afforded an opportunity to address those interests before the decision is taken.

Ms Ailes contended that the central error in the judgment was to read into s.179 two requirements which are not there, namely, a requirement to have regard to the individual interests of the requested person when making a priority decision and, to that end, a requirement to receive and consider representations on that issue. That reading is not required or supported by the words of the 2003 Act, which is otherwise notable for being exhaustively prescriptive as to procedures; and it is a conclusion which is not required by fairness, since any proper reason why Mr Coelho should not be extradited to the USA is a matter which he can raise in the extradition proceedings.

Mr Cooper placed emphasis on the fact that the two Treaties require the court to have regard to “all relevant factors” (in the case of the USA-UK Treaty) or to “give due consideration to all the circumstances” (in the case of the TCA). He accepted that this must mean all the circumstances that are relevant to the decision as to which request should be given priority. That therefore begs the question as to what is “relevant” in this context. It is normally for the decision-maker to determine whether a factor is relevant, subject to rationality, but Mr Cooper’s argument is that it is irrational to leave out of consideration the personal interests or circumstances of the individual who is the subject of the competing requests.

Mr Cooper submitted that the decision about which requesting State should have priority was something that obviously engaged the interests of the person to be extradited, quite independently of any issues pertaining to the lawfulness of the competing requests, because the SSHD or the Minister is determining in which forum it would be more appropriate for that person to stand trial. That decision at least has the potential to operate to that person’s detriment. He submitted, moreover, that if the decision maker can seek and consider representations from the States concerned, it would be wrong in principle to exclude the individual who is affected by the competing requests from also making representations. Shutting out such representations denied the SSHD a source of potentially relevant information. Mr Cooper placed considerable reliance on the fact that the factors referred to in the 2003 Act and the Guidance are non-exhaustive.

Ms Ailes accepted that the listed factors are non-exhaustive, but she contended that the nature of those factors which are specifically identified as being relevant is a legitimate aid to construction, which supported the interpretation for which she contends. She submitted that the factors set out in s.179(3) and the Guidance (and indeed in the underlying Treaties) are all about securing the wider interests of justice by seeing to it that those against whom there are allegations should be brought before a court, and those upon whom sentences are imposed should serve them, in a way which best reflects those interests in ensuring that offenders face justice globally and practically. None of those factors is about the individual who is the subject of the competing requests. They all relate to the requests themselves – their timing, their substance, how far the criminal process has reached in each requesting State, the seriousness of the criminal charges (which will usually be determinative), any impact that giving precedence to one would have on the other, any overlap between them, and the connections that the alleged offending has with each State.

Most of these matters will be readily ascertainable from the face of the warrant and request, and if they are not, any necessary inquiries of the States concerned will be limited in scope and capable of being answered swiftly (e.g. when would the trial take place? Would delaying one request behind the rival request lead to a time-bar issue?) The decision is not concerned with the impact that either request will have on the individual; the proper forum in which to debate matters of that nature is the court dealing with the substantive extradition proceedings.

Although nationality is identified as a factor, Ms Ailes contended that this is because it reflects the interest that requesting States have in trying their own nationals. Indeed, there are some States which refuse requests for the extradition of their own nationals because of the paramount importance that they attach to that interest (Portugal, for example, refuses requests for the extradition of its nationals outside the EU, though it will accede to requests for their surrender to a European arrest warrant). The impact that this has on competing requests within the EU is discussed by the Judge at [98] and [99] of his judgment, but I consider it to be of no direct relevance to the matters we have to decide.

Ms Ailes placed considerable reliance on the fact that under the streamlined system introduced by the 2003 Act, the SSHD’s involvement is limited to matters with which they are best equipped to deal as a Minister – such as ensuring adherence to the UK’s Treaty obligations. This, she submitted, was in keeping with Parliament’s intention to minimise delay. Even in Part 2 cases, the SSHD plays a minimal role. The SSHD is deliberately kept away from making any value judgments about matters relating to the appropriateness or otherwise of extraditing the individual to a particular requesting State, save in very limited, identified, circumstances.

Ms Ailes submitted that the practical ramifications of the judgment were to create or confirm the very mischief which the legislative scheme was designed to prevent. The involvement of the requested person’s interests would add very substantially to the delay in taking the decision. The Judge’s answer to that objection was that the SSHD could set tight deadlines for making representations, but as Ms Ailes pointed out, that does not address the potential problem of another layer of proceedings addressing matters that either have been or would be addressed in the extradition proceedings.

Ms Ailes submitted that the case of OP v Procureur de la République (Case C-763-22), a decision of the CJEU on which the Judge and Mr Cooper placed considerable reliance, when properly understood, did not support Mr Coelho’s contention that the personal interests of the subject of the competing requests (in the sense of which of the competing States would be more conducive to his wellbeing, etc.) were required to be considered in this context.

The governing provision in that case was Art 16 of the Council Framework Decision 2002/584/JHA which, like the relevant paragraph in the TCA, requires consideration of “all the circumstances”. The case concerned a French national who was arrested in Spain and was the subject of competing requests by France and Switzerland. The principal question referred to the CJEU for determination was whether the “competent authority” which made the decision on which of these requests should take precedence could be an executive body. The CJEU decided that it could, recognising that such a decision may be based on considerations that are not exclusively judicial.

The second question the CJEU was asked was whether there must be a judicial remedy against a decision on precedence taken by such an executive body. The CJEU decided that there must be an effective judicial remedy which, among other matters, must enable the individual concerned to challenge any interference with his or her fundamental rights and freedoms enshrined in the EU Charter (which include rights that are broadly equivalent to those under the ECHR). The court observed at [52] that the decision on precedence “is likely to have a significant impact on the legal situation of the person concerned” [emphasis added]. If the decision to send a person to Switzerland rather than France were taken administratively in Spain “and no remedy could be sought against the decision on precedence” there was a danger of that person being removed in breach of their rights under the EU Charter. Therefore, there should be a judicial remedy provided in the Member State making the decision. However, the CJEU said it is for Member States to provide the form of the remedy.

The Judge said at [102] that whilst the CJEU did not in terms decide that the individual had the right to make representations before the decision on precedence was taken, it formed the basis for their analysis. Ms Ailes took issue with that understanding of the case. She submitted that, although the passage at [52] of the judgment in OP referred to the undesirability of an absence of a “judicial remedy on the decision on precedence” if that decision favoured the third country, that passage should not be taken out of context. Reading the judgment as a whole, the underlying concern of the CJEU was about the risk that if the non-EU member state (in that case, Switzerland) were afforded priority, and that decision was not taken by a judge, the individual might be sent there in breach of their Charter rights. The CJEU was really saying that there had to be some judicial remedy for this potential mischief in the extradition process, and its remarks were made in a context where the priority decision might lead directly to the person’s extradition to the chosen State. In cases where the extradition decision is taken by a court, or there is a right of appeal to a court, that risk would not arise.

Although the observations of the CJEU were made in the specific context of a decision on priority between an EU Member State and a third country, it was not addressing the question with which this Court is concerned, namely, whether the personal interests of the subject of the competing requests other than those which might give rise to grounds for resisting extradition to the third country must be considered.

Ms Ailes pointed out that under the domestic legislation there is no question of human rights issues being addressed by the SSHD at the time of the decision on priority; indeed, Parliament has specifically precluded this. The UK approach is to avoid duplication of proceedings, and the individual’s human rights are addressed in the extradition process. That, and the possibility of judicial review of the priority decision, provided the remedy about which the CJEU was concerned. If, however, the Judge had correctly understood OP as lending support to Mr Coelho’s argument that the interests of the individual are a relevant factor to be considered when making a priority decision, Ms Ailes’ fallback position was that the CJEU’s decision is not binding on this Court.

I acknowledge the force of Mr Cooper’s submission that in principle, when a decision taken by a public body will affect a person, fairness usually dictates that they should be afforded the opportunity to make representations before the decision is taken; see R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 and Bank Mellat v HM Treasury (No 2) [2013] UKSC 39; [2014] AC 700. However, as both those cases recognise, what fairness requires depends on the context of the decision. The right to make representations may be displaced by necessary implication, or where it would be impracticable in all the circumstances to introduce it.

It is important to bear in mind that when choosing priority under s.179 the SSHD is either dealing with two requests which have already survived challenges on human rights grounds, so that she could lawfully grant either of them, or else the SSHD must assume that compliance with either request will be compatible with the UK’s obligations under the ECHR, unless and until a court rules otherwise. The ability within the existing statutory system to obtain a judicial ruling on the compatibility with s.6 of the HRA of extradition to the State afforded priority under s.179 – either before or after the priority decision is taken - satisfies the concerns of the CJEU in OP. There is no question, in this jurisdiction, of a priority decision in favour of a Part 2 State leading to a person’s extradition without judicial safeguards against potential breaches of s.6 of the HRA, because the priority decision is separate from the extradition decision. I do not read OP as mandating the person taking the priority decision to have regard to EU Charter or Human Rights issues. The CJEU made it clear that the nature of the judicial safeguard against a priority decision leading to a person’s extradition to a third State in breach of EU Charter rights is a matter for the individual Member State.

In a case like the present, the priority decision may or may not be determinative of where the requested person is to be tried, depending on whether a human rights challenge to their extradition to the State which is afforded priority succeeds. The SSHD is not concerned with the human rights implications, if any, of affording priority to one State over the other; the question whether sending someone to a particular requesting State would breach the UK’s obligations under the ECHR is solely a matter for the court, see s.70(11) of the 2003 Act. The subject of the rival requests has ample opportunity to make representations on such matters within the extradition process, and it is that process that will finally determine where they are sent.

At [121] the Judge made the point that within the extradition process the court is unlikely to be concerned with the question whether extradition to State A is more appropriate than extradition to State B. As he said, the question whether extradition to a particular State would infringe the individual’s human rights is a binary one. Whilst he accepted that the arguments in the extradition context may well overlap with arguments put forward in the s.179 context, he said that arguments which might be relevant or decisive for the purposes of the SSHD’s decision under s.179 will often be irrelevant to the decision whether extradition to a particular requesting State is barred, or, even if relevant, insufficient to establish that it is.

Whilst this is all true, I regard those points as undermining rather than supporting Mr Coelho’s case on procedural fairness. It does not follow that because the extradition decision and the priority decision are different in nature, the individual affected by them should be given an opportunity to make representations before each decision is made. Nor does it follow that it should be open to the individual concerned to seek to persuade the SSHD to defer sending them to requesting State A (and afford priority to the other requesting State B) because of factors pertaining to the impact on them of going to State A which fall short of a violation of their human rights, and therefore would not justify the UK in refusing to accede to the request by State A. The argument that it should is based on the false premise that a fair evaluation of the “appropriateness” of choosing one State over the other can only be made by reference to the potential impact on the individual of that choice, even though it would be lawful to send him to either State.

In the present case it is said, for example, that in the USA the same support from the State would not be available to Mr Coelho as a victim of modern slavery as there is in Portugal, because the USA is not a party to ECAT. In other cases, no doubt individuals would wish to raise issues about the comparative state of the prison conditions, or the fact that they would face far longer jail sentences or have to wait longer before they could be considered for parole for the same criminal offence in one requesting State rather than the other. In Portugal, as we have seen, the court has the power to direct that part of a custodial sentence be suspended, whereas other jurisdictions, like England and Wales, only permit the suspension of the entire custodial term. The decision under s.179 is not concerned with value judgments about the comparative merits of the legal systems or infrastructures of the UK’s international Treaty partners.

The logical consequences of Mr Cooper’s argument are that the requested individual should be afforded a chance to seek to persuade the decision maker to delay, defer or even avoid extradition to a requesting State, on grounds that fall short of those which would enable them to resist extradition if it were the only requesting State, simply because another State has made a request for their extradition and the SSHD has to make an administrative decision about which is to be afforded priority. I cannot see why that fortuity should require that person to be placed in any more advantageous position than a person who is the subject of only one request.

It would also make little sense if Parliament, having expressly accepted the recommendations of the Scott Baker review and removed from the SSHD all human rights considerations so as to avoid duplication and delay, nevertheless envisaged that the SSHD would still have to consider a plethora of matters pertaining to the personal situation of the requested individual. That would reintroduce the very mischief that the amendments to the 2003 Act were expressly designed to eliminate. The introduction of the extra procedural layer would cut across everything that Parliament was seeking to achieve.

I consider that the 2003 Act does displace the right to make representations, by necessary implication. It is deliberately prescriptive and designed to avoid multiple processes which overlap and cause delay. S.179 is all about ensuring adherence by the UK to its international Treaty obligations to other States. It is not about its international Treaty obligations to the individual – they are catered for within the extradition process. So long as it is lawful to send the individual to the chosen State, the fact that they might be less well off by going there than they would be if the other State were given priority is not something with which the SSHD is or should be concerned.

In further support of her submissions about the constrictions of the 2003 Act, Ms Ailes relied on the fact that when Parliament contemplated representations being made to the SSHD, the statute makes express provision for them. S.93 of the 2003 Act specifically caters for the affected individual making representations to the SSHD when she is considering whether extradition is prohibited on certain limited grounds. Mr Coelho had the right to make such submissions before the SSHD made the decision to extradite him to the USA back in July 2023. Parliament has put a strict time limit of 4 weeks on the SSHD’s obligation to consider representations made in that context. The representations cannot relate to human rights matters, which the SSHD cannot consider, and implicitly must be confined to the question whether extradition is prohibited, which is what the SSHD must decide.

The Judge said at [119] that s.93 does not enact a specific right to make representations, but assumes that such representations will be made and sets a deadline after which they will not be considered. His interpretation is consistent with the way in which the section is structured; but the fact the deadline is set by reference to what is defined as “the permitted period” implies that representations are only permitted within that timeframe, and thus that representations will not otherwise be allowed. Likewise, in the case of someone who has consented to their extradition under s.127, s.93(7)(b) provides that the SSHD is not obliged to consider any representations received after the order sending the case to the SSHD.

The Judge’s observation that s.93 does not expressly confer a right to make representations does not detract from the point that Parliament has not given the individual free rein to have representations considered by the SSHD even in the specific situations covered by s.93(2). The consequence of a finding that there is no statutory bar to certification is that the SSHD must order extradition (subject to a handful of statutory exceptions). Why then should Parliament be assumed to have permitted the individual an unlimited time to make representations in the context of a decision under s.179, leaving it instead to the SSHD to set a deadline, as the Judge envisaged, whereas s.93 makes it clear that there is no right to have representations considered if they are made after the statutory deadline has expired? Leaving it to the SSHD to decide the timeframe for representations also raises the spectre of potential judicial review challenges to that decision.

The suggestion that the scheme of the 2003 Act caters for an unfettered right to make representations before a priority decision lacks particular coherence in circumstances where the s.93 decision precedes the s.179 decision (as in this case, and as expressly contemplated by s.93(4)). Why should the subject of the Request have 4 weeks to make representations under s.93, but then be given a further opportunity to make representations under s.179, this time without statutory time constraint, and without any restrictions on duplication, thereby prolonging any execution of the extradition order? There is no sense in strict time restrictions being expressly imposed in one context and not in the other, and that is a strong pointer towards it being Parliament’s intention that there should be no right to make representations before a priority decision is taken.

I respectfully disagree with the Judge’s view that one can extract from the formula in s.93 a more widespread underlying assumption by Parliament that representations will be made and considered where the common law duty to act fairly requires this. On the contrary, for the reasons I have explained, I regard the absence of any similar provision in the statute relating to a decision taken under s.179 as powerful support for the position of the SSHD. It is an indication that Parliament expressly envisages representations being permitted, albeit within tightly set deadlines, only when the SSHD’s decision is likely to result directly in the person being extradited (subject to appeal).

There is only one other provision in the 2003 Act which contemplates representations being made to the SSHD, s.173(2)(b), but that deals with the very different situation where the SSHD proposes to issue a code of practice under Part 4 of the Act. In general, the Act makes no provision, by assumption or otherwise, for representations to be made to the SSHD.

I agree with Ms Ailes’ submission that the structure of the 2003 Act and the nature of the factors which are listed as relevant make it clear that the interests of the individual are not to be treated as a relevant consideration when taking a decision under s.179. When making such a decision, the SSHD is concerned to ensure that it is taken in a manner which best implements the UK’s international obligations under the two rival Treaties and the policy of seeking to ensure that requested persons face justice (or serve their sentences) with minimum delay. Whilst the list of material factors is non-exhaustive, they are all concerned with the interests of the States and their international treaty obligations. The interests of the individual are conspicuous by their absence. They are catered for elsewhere within the extradition process.

For those reasons I would allow this appeal on Ground 1 and Ground 2. It follows that insofar as the Judge also found that it was irrational for the decision maker not to have taken into account factors pertaining to Mr Coelho’s interests or personal circumstances, he was wrong. Those factors are legally irrelevant to the decision under s.179.

The submissions on this Ground were ably presented by Ms Townshend on behalf of the SSHD and Ms Foot on behalf of Mr Coelho. Ms Townshend submitted that the Judge made material errors in three essential respects, namely:

It is accepted by the SSHD (and was accepted in the Court below) that there were inaccuracies in the Submission to Minister and Annex B to that Submission. The issue is whether the mistakes, whether taken individually or in combination, were material, as the Judge decided they were. The first mistake he identified was that the offending that was the subject of the Request and the Warrant was described as “identical”, when, despite a significant overlap, it is not: the Warrant included additional charges of money laundering and tax fraud. On the basis that the offending was identical, the Minister was advised that the decision could not be taken just on the basis of the relative seriousness of the offences, which the Guidance indicates would normally be decisive.

The second mistake was that there were what the Judge described as “confusing and contradictory statements” about the location of the victims of the offences. There are statements that all the victims and witnesses are in the USA, but other statements which suggest that there are also victims outside the USA, though neither the Warrant nor the Request provides further detail or specific figures in respect of the latter. The Minister was also told (correctly, so far as the main fraud was concerned) that it was not known whether any victims were based in Portugal. There was no specific mention of the fact that the victim of the alleged tax fraud was the Portuguese State.

Ms Townshend’s main argument in relation to the first error is that when the nature and substance of the criminal conduct complained of is considered, rather than just considering the way in which it is characterised in the criminal charges, the core complaint made about Mr Coelho’s activities was the same in both the Warrant and the Request, namely, the activity carried on through RaidForums and the financial gain made from it. A comparison between the text of the Warrant and the text of the Request shows that this offending is described in almost identical terms, as is the role played by Mr Coelho, and the offending covers the same period.

Both documents refer to around 10 billion personal identifiable information records being offered for sale through the RaidForums website. The Warrant specifies various acts carried out by Mr Coelho as part of the RaidForums operations, including, for example, the facilitation of the purchase and sale for $200,000 of lists of personal information belonging to a major telecommunications operator providing services in the USA. The detail of these matters appears to be derived directly from the Request, where each is the subject of a separate count on the proposed indictment.

The money laundering charge in the Warrant was plainly collateral to the RaidForums activity. It only concerned the proceeds obtained from that activity over the period of the charges, said to have been around €634,502.97 in total, which Mr Coelho allegedly transferred to platforms which traded crypto assets and then from those platforms to his personal Santander bank account in Portugal. Approximately €259,000 has been frozen from that account and a related savings account, but other assets in Portugal, including a car, have also been seized.

Whilst there is no separate charge of money laundering in the Request, Ms Townshend pointed out that there is a “Forfeiture Notice” annexed to the Request, which notifies Mr Coelho that upon conviction he shall forfeit to the USA “any property constituting, or derived from, proceeds the defendant obtained directly or indirectly, as the result of [the cybercrimes]” and any personal property used or intended to be used to commit the offences. Within the Forfeiture Notice there is a request for “a money judgment for not less than $215,571, representing proceeds the defendant obtained as a result of the violations described in this Indictment.” [Emphasis added.]

Accordingly, both States are concerned to recover what Mr Coelho gained in monetary terms from the same criminal activity, the difference being that in Portugal the act of transferring that money into online trading platforms and then into his personal bank account is charged as a separate criminal offence, and, of course, that account is located in Portugal. As Ms Foot pointed out, the value of the receipts identified in the Portuguese claim is higher than the amount claimed in the US proceedings, though the latter is expressed as a minimum figure. In any event, the total monetary gain Mr Coelho made from RaidForums cannot differ depending on the jurisdiction in which he is tried. It will be a figure which is capable of objective assessment.

The Warrant goes on to say that “it’s noted that Diogo Santos Coelho has never been fiscally registered for engaging in any business activities and has not submitted any income tax declarations.” A separate charge of tax fraud is included. Ms Townshend accepted that the tax matter is specific to Portugal, but submitted that it, too, is parasitic upon the same core conduct, i.e. the lucrative criminal activity carried out through RaidForums. That submission appears to be well-founded, because after the judgment, Portugal responded to a request for further information in which it said that: “with regard to tax evasion, it was understood that it could not be punished separately, for legal reasons, which does not invalidate the fact that tax evasion is also considered part of the preceding unlawful factual context. Hence, the Portuguese indictment expressly refers to the fact that Mr Diogo Santos Coelho did not submit tax returns.” [Emphasis added]. So, the complaint appears to be that, as part and parcel of his general offending behaviour in connection with RaidForums, Mr Santos Coelho did not pay tax on his ill-gotten gains of €634,000, which would amount to around €145,000. However, the tax is a percentage of what was received in consequence of the criminal activity. If the proceeds are forfeited, presumably the tax will be subsumed in the recovered amount – Portugal could not recover both sums.

The error in what the Minister was told lay in describing the offences that are the subject of the Warrant and the Request as “identical”, which they clearly are not, though there is a very extensive overlap between them (possibly greater than the Judge appreciated). Indeed, it is now clear that both the extra offences charged in the Warrant are integrally bound up with the key offending behaviour, in that they could not have existed independently of it. Given that, as the Judge acknowledged at [148], the correct version of Annex B to the Submission to Minister does expressly refer in paragraph [8] to the additional money laundering and tax charges, there is some difficulty in understanding how the Minister could have been misled by statements made to him that the offences were identical. But the Judge was aware of the contents of that paragraph, and expressly took it into account.

It seems clear from the Judge’s reasoning at [149] that he was concerned that the mistake in the way in which matters were presented to the Minister could have led the Minister to think that he could not make the decision purely on the basis of relative seriousness (indeed, he was advised that it was “impossible” to do so). I cannot say that the Judge was “plainly wrong” about that, though I accept that there is at the very least a respectable view that the money-laundering and tax allegations add little or nothing to the substance of what is at the heart of the complaint about Mr Coelho’s activities. Mr Coelho would have had no earnings to hide from the tax authorities and pay into a bank account in Portugal but for his criminal behaviour in respect of RaidForums. Portugal has now confirmed that he would not, indeed could not, have been charged separately with the tax offence. If the Judge had known this, it is possible that he may not have placed so much weight on his understanding that the Request would not necessarily lead to the disposal of all the criminality alleged against Mr Coelho.

However, whilst it is by no means certain that a correction of the error would lead to a different conclusion about the comparative seriousness of the alleged offending, a different conclusion would at least have been open to the decision maker on an accurate presentation, and that is enough to justify quashing the decision. The key point is that the Minister was not afforded the opportunity of assessing for himself whether the additional charges in the Warrant had any bearing on the comparative seriousness of the offences, because he was told that it was impossible to find that the criminal activities alleged in one request were more serious than those alleged in the other. Moreover, I agree with the Judge that the concentration upon the cybercrime and minimal references to the additional charges in the Warrant meant that two connections with Portugal – the location of the money laundering through the Portuguese bank account and the role of the Portuguese State as a victim of the tax evasion – were either overlooked or downplayed.

I should make it clear that, if and to the extent that he did so, the Judge should not have proceeded on an assumption that the case alleged against Mr Coelho in Portugal was necessarily more serious than the case against him in the USA just because of the additional offences charged in the Warrant. When a new decision is taken, any views expressed by the Judge (or indeed by me) on matters which are entirely within the remit of the decision maker must be disregarded. The comparative seriousness of what is being alleged in the two requests for extradition is not a matter for the Court; it is a matter of value judgment for the decision maker. It would be at least rationally open to that person to take the view that the additional offences add little or nothing in terms of weight to the overall seriousness of what is alleged; nothing in the judgment of the lower court should be taken as mandating otherwise. Likewise, nothing in this judgment should be taken as precluding the decision maker from concluding that they do add to the overall seriousness, if that is the view he or she forms.

Given that the Judge was entitled to find that this error was material, the appeal must fail on Ground 3 regardless of the other complaints made under that Ground. I will therefore address Ms Townshend’s other points more succinctly. So far as the location of victims and witnesses is concerned, the Judge rejected the argument that any confusion or error was immaterial, though, as he said, after some hesitation. On this aspect I respectfully part company with his assessment. In my judgment the inaccuracies identified, such as they were, were immaterial, at least when taken in isolation. I can, however, see that when added to the first error that they lend weight to the Judge’s conclusion that the decision should be quashed.

Although there was room for confusion, reading the documents as a whole, it seems obvious to me that the Minister would have understood from what he was being told that all the identified victims of the fraudulent activity are based in the USA, including all the entities from whom data was stolen, but there are some as yet unidentified (individual) victims in other (unspecified) locations around the world. The “stated” victims are those referred to in the Request and the Warrant, and it is true that all the victims of the fraud referenced (i.e. identified) in the Warrant are based in the USA. The people whose personal data was obtained were said to be in the USA and “abroad”. I do not consider that the Minister could possibly have been misled into thinking that none of those individuals whose personal data was stolen lived outside the USA and, even if he was, the unknown locations of unknown victims could not possibly have made a difference to the decision insofar as it was based on the known location of victims and witnesses.

Despite the fact that a considerable amount of additional information has been obtained since the judgment below, it is still not known whether there were any individual victims in Portugal. That has been confirmed in the latest information from Portugal. I cannot see how any of that information, if spelled out more clearly, would potentially move the dial towards giving precedence to Portugal as the Judge thought it did. Nor do I understand the relevance of the distinction the Judge sought to draw at [156] between evidence that there were no victims in Portugal, and evidence that no victims had been identified in Portugal. The location of unidentified victims or the hypothetical possibility that there may be some in Portugal would not change the fact that the preponderance of known victims is in the USA.

Whilst it is true that the Portuguese State was not mentioned as a victim, its role only relates to the tax issue, which it has now been confirmed is parasitic upon the fraud (and is a claim to tax on the money received from the illicit activities). I question whether “victim” is truly an appropriate description for a State which is complaining that it did not receive the share of the proceeds of the defendant’s crimes to which it would have been entitled had they been income derived from a lawful business. Be that as it may, the fact that Portugal was the “victim” of Mr Coelho’s failure to pay tax on his unlawful receipts will no doubt be taken into account when the new decision is taken. I do, however, find it difficult to see how that factor could ever, in and of itself, outweigh the location of the numerous identified victims of the criminal activity carried on through RaidForums, whose systems were attacked, or whose personal data was stolen.

The Judge said at [157] that even if this error, in respect of the location of the victims, had not been material taken in isolation, the two errors taken in combination were material. I do not dissent from his conclusion that the combination of errors could have made a difference to the decision. I do, however, respectfully disagree with his view that the essential error made by the author of the Submission to Minister was to “overlook the significance of the additional charges on the Warrant.” The error lay in failing to mention them, or at least in failing to draw the Minister’s attention to the fact that they provided two further connecting factors to Portugal. The significance of that information should not be assumed. It was a matter for the decision maker to determine, after the facts were accurately presented to him. The key error might perhaps be better expressed as overlooking the potential significance of the additional charges.

Ms Townsend’s third complaint was that in assessing materiality the Judge mentioned other connections with Portugal, but failed to make reference to the other factor which influenced the outcome of the decision, namely, that the Request pre-dated the Warrant by some 2 years and the Request had reached the advanced stage where there was a decision to extradite which was being challenged on appeal.

I do not accept that as a valid criticism; the Judge was asking himself the right question, namely, did the inaccurate information have an influence on the overall decision, or could it have done so? Unless it could be said that the two-year difference in timing between the two requests was always going to be a trump card (which has not been suggested) there was no reason for him to factor it into that assessment. In fact, it would be well-nigh impossible to say how the timing point would have been weighed in the balance if the Submission to Minister and Annexes had contained entirely accurate information about the additional charges in the Warrant, had made it clear that there were unidentified victims of the fraud living outside the USA and had expressly drawn the Minister’s attention to the fact that the Portuguese State was the “victim” of the tax evasion charge.

For these reasons, I would allow the appeal on Grounds 1 and 2, and to the extent that the Judge upheld a rationality challenge based upon the failure of the SSHD to take into account the interests of Mr Coelho, but dismiss it on Ground 3. It follows that when a new decision is taken, the SSHD or the Minister (whichever is taking the decision) will be under no legal obligation to receive or to take into account representations on behalf of Mr Coelho.

I agree.

I also agree.