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

Mrs Justice Eady DBE: Introduction

1. This is my judgment on the appellant’s application to quash a costs order made on 20 September 2022 by the Senior District Judge (“SDJ”) at Westminster Magistrates’ Court (“the 2022 costs order”). The application is made within appeal proceedings brought under section 108 of the Extradition Act 2003 (“ the 2003 Act ”).

2. By an earlier order of 6 August 2024, made by consent within these proceedings, the appellant was granted permission to appeal against an order for her extradition, her appeal was allowed, the extradition order quashed, and the appellant discharged from the extradition request. The 6 August 2024 order also made provision for a defendant’s costs order in favour of the appellant. The question arises, however, as to the effect of the quashing of the extradition order on the 2022 costs order. Specifically, two issues have been identified as arising from the current application: (1) whether this court has jurisdiction in respect of the 2022 costs order; alternatively, should the court have such jurisdiction, (2) whether it should exercise that power to quash the 2022 costs order. Factual and procedural background

3. The appellant was the subject of extradition proceedings arising from an extradition request made by the Interested Party (“IP”). The appellant was former chair of a Mexican public authority known as the Integrated Family Development System; she has been accused of various frauds committed within and against that authority.

4. Proceedings before the Westminster Magistrates’ Court were commenced following the appellant’s arrest in October 2019; the proceedings were contested by the appellant. The case has been described as being both complex and politically sensitive, and it took some time to come on for hearing. The appellant was also seeking to pursue a claim for asylum, and I understand that a stay of the extradition proceedings was initially granted to allow time for that claim; subsequently, however, the extradition proceedings were progressed, in advance of any determination relating to the separate claim for asylum.

5. Although a number of matters were initially identified by the appellant as bars to extradition, by the time of the hearing before the SDJ, the disputed issues were two-fold: (i) whether there was sufficient evidence to make a prima facie case for the purposes of section 84 of the 2003 Act ; (ii) whether pre- and post-trial prison conditions would render extradition incompatible with article 3 of the European Convention on Human Rights (“ECHR”).

6. A hearing took place before the SDJ over a period of five days (in November 2021 and January 2022), at which two witnesses gave oral evidence and documents were referred to in bundles of some 5,000 pages. For the reasons explained in his 134-paragraph judgment, dated 16 February 2022, the SDJ found there was a prima facie case for the purposes of section 84 , and that, considering whether extradition would be compatible with rights afforded by the ECHR, as required by section 87 of the 2003 Act , the appellant was not at a real risk of being detained in contravention of article 3. Given those findings, the SDJ formally sent the case to the Secretary of State. The appellant did not seek to challenge the SDJ’s decision on appeal.

7. On 30 March 2022, under section 93 of the 2003 Act , the Secretary of State ordered the appellant’s extradition; implementation of that order was, however, suspended pending determination of the appellant’s claim for asylum.

8. An order for the appellant’s extradition having thus been made, the Crown Prosecution Service (“CPS”), acting for the IP, applied for costs, limited to counsels’ fees relating to the proceedings before the SDJ. On 20 September 2022, acting under the power afforded by section 133(2) of the 2003 Act , the SDJ made the 2022 costs order, requiring the appellant to pay costs of £67,853.79 to the CPS by 19 September 2023. I understand that, mindful of her on-going asylum proceedings, the appellant was afforded liberty to apply to lengthen the time for payment, but, in the event, no application for an extension of time was made and the 2022 costs order was neither challenged nor paid.

9. On 26 April 2024, the appellant’s asylum claim was determined. The appellant then lodged an appeal against the Secretary of State’s decision to order extradition. On 6 August 2024, by consent, Morris J granted the appellant permission to appeal and allowed the appeal, quashing the extradition order and discharging the appellant from the IP’s request for her extradition. Morris J’s order included provision for costs in favour of the appellant, in the following terms (“the 2024 costs order”) : “There shall be a defendant’s costs order pursuant to s134(1) (a) of the Extradition Act 2003 and s.16(5) of the Prosecution of Offences Act 1985 to be assessed.”

10. In correspondence in December 2024, the impact of the quashing of the extradition order on the validity of the 2022 costs order was debated. For the appellant, it was maintained that the former had extinguished the latter; the CPS (for the IP) disagreed, contending that the 2022 costs order remained valid and enforceable.

11. On 18 December 2024, the London Compliance and Collection Centre (“the LCCC”) issued a notice to the appellant to pay the amount due under the 2022 costs order; this was received by the appellant on 23 December 2024.

12. On 7 January 2025, the appellant’s solicitors wrote to the CPS stating their view that the 6 August 2024 consent order, quashing the extradition order, had removed the legal basis for the 2022 costs order, which should similarly be quashed, per Bizunowicz v Poland [2015] 1 WLR 2341 , at paragraphs 63-64.

13. On 27 January 2025, the appellant made her application to quash the 2022 costs order . The respondent does not object to that application, but it is resisted by the IP. On 20 March 2025, the appellant applied for an order suspending enforcement measures by the LCCC in respect of the 2022 costs order. Taking the view that the court had an inherent power to make that order, and that it was appropriate to do so, on 12 May 2025, Kerr J granted the appellant’s application to suspend enforcement and directed that the application to quash the 2022 costs order was to be determined at an oral hearing. The legal framework Extradition proceedings under Part 2 of the 2003 Act

14. The IP is a designated Part 2 territory; as such the extradition proceedings relating to the appellant were, and are, governed by Part 2 of the 2003 Act .

15. Under Part 2, the SDJ (as the “appropriate judge”) had first to be satisfied that the requirements specified by section 78 were met, and there were no bars to extradition for the purposes of section 79 (having regard to the interpretive provisions at sections 80-83E); if so, as the appellant had not been convicted, section 84 required that the SDJ had also to be satisfied that there was evidence sufficient to make a case requiring an answer by the appellant. If the SDJ was so satisfied, section 87 then required him to reach a decision as to whether the appellant’s extradition would be compatible with her rights under the ECHR. If that question was decided in the affirmative, by section 87(3) , the SDJ was mandated to send the case to the Secretary of State for a decision on whether that person was to be extradited; on doing so, section 92 required the SDJ to inform the appellant of her right to appeal to the High Court, albeit that any such appeal would not be heard until the Secretary of State had made her decision.

16. The right of appeal against the appropriate judge’s decision is provided by section 103 of the 2003 Act , which provides (relevantly) as follows: “(1) If the judge sends a case to the Secretary of State under this Part for his decision whether a person is to be extradited, the person may appeal to the High Court against the relevant decision. ... (3) The relevant decision is the decision that resulted in the case being sent to the Secretary of State. (4) An appeal under this section— (a) may be brought on a question of law or fact , but (b) lies only with the leave of the High Court. (5) If an appeal is brought under this section before the Secretary of State has decided whether the person is to be extradited the appeal must not be heard until after the Secretary of State has made his decision. (6) If the Secretary of State orders the person’s discharge the appeal must not be proceeded with. .... (9) Notice of application for leave to appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is 14 days starting with the day on which the Secretary of State informs the person under section 100 ... of the order he has made in respect of the person. ...”

17. Similar provision is made for an appeal against the decision of the appropriate judge where that has resulted in an order for the person’s discharge, albeit the 14-day time limit for such an appeal runs from the day on which the order for the person’s discharge was made (see section 105 of the 2003 Act ).

18. The powers of the High Court on an appeal from the decision of the judge under Part 2 are set out at sections 104 (appeals under section 103 ) and 106 (appeals under section 105 ). Section 104 provides: “(1) On an appeal under section 103 the High Court may— (a) allow the appeal; (b) direct the judge to decide again a question (or questions) which he decided at the extradition hearing; (c) 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 judge ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question in the way he ought to have done, he would have been required to order the person’s discharge. (4) The conditions are that— (a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; (b) the issue or evidence would have resulted in the judge deciding a question before him at the extradition hearing differently; (c) if he had decided the question in that way, he would have been required to order the person’s discharge. (5) If the court allows the appeal it must— (a) order the person’s discharge; (b) quash the order for his extradition. (6) If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person’s discharge. (7) If the judge comes to the same decision as he did at the extradition hearing on the question that is (or all the questions that are) the subject of a direction under subsection (1)(b) the appeal must be taken to have been dismissed by a decision of the High Court. ...”

19. Where a case has been sent to the Secretary of State, section 93 specifies matters that would prohibit an order for extradition pursuant to sections 94-96A: if the Secretary of State decides that the extradition of the person in question is prohibited under any of these provisions, an order must be made for that person’s discharge; otherwise (save for particular specified circumstances), the Secretary of State must order the person to be extradited to the territory to which their extradition is requested ( section 93(4) ). If a person’s extradition has thus been ordered under Part 2, by section 100, the Secretary of State is required to inform the person concerned of the extradition order and of their right of appeal to the High Court.

20. I pause to note that, by section 93 (6A) it is provided that the Secretary of State may order the discharge of the person in question if they (a) have been recorded by the Secretary of State as a refugee within the meaning of the Refugee Convention, or (b) have been granted leave to enter or remain in the United Kingdom on the ground that it would be a breach of article 2 or 3 ECHR to remove them to the territory to which extradition is requested.

21. Where, however, a person is informed of an extradition order made by the Secretary of State, section 108 of the 2003 Act provides that they may appeal to the High Court against that order. Conversely, where the Secretary of State has made an order for the person’s discharge, section 110 provides that an appeal to the High Court may be brought on behalf of the category 2 territory against that decision. The High Court’s powers on appeal in either case are set out at sections 109 and 111 respectively. Section 109 provides: “(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.” Costs under Part 2

22. Costs in relation to Part 2 proceedings are addressed, under a separate sub-heading, at sections 133 (where extradition is ordered) and 134 (where discharge is ordered). Section 133 provides (relevantly): “(1) This section applies if any of the following occurs in relation to a person whose extradition is requested under this Part— (a) an order for the person’s extradition is made under this Part; ( aa) the High Court dismisses an application for leave to appeal to it under section 103 or 108; (b) the High Court dismisses an appeal under section 103 or 108; ... (2) In a case falling within subsection (1)(a), the appropriate judge may make such order as he considers just and reasonable with regard to the costs to be paid by the person. (2A) In a case falling within subsection (1)(aa), the High Court may make such order as it considers just and reasonable with regard to the costs to be paid by the person. (3) In a case falling within subsection (1)(b) by virtue of section 104(7), the judge who decides the question that is (or all the questions that are) the subject of a direction under section 104(1)(b) may make such order as he considers just and reasonable with regard to the costs to be paid by the person. (4) In any other case falling within subsection (1)(b), the High Court may make such order as it considers just and reasonable with regard to the costs to be paid by the person. ... (6) An order for costs under this section— (a) must specify their amount; (b) may name the person to whom they are to be paid.” As paragraph 374 of the Explanatory Notes to the 2003 Act explains: “This section allows for an order for costs to be made against a person who unsuccessfully challenges proceedings held under this Part of the Act . ...”

23. Where an order for the person’s discharge is made under Part 2 of the 2003 Act , section 134 allows the appropriate judge to make an order for costs in favour of that person. Mirroring section 133 , in such circumstances, the order can be made by the appropriate judge whether the order for the person’s discharge has been made by that judge or whether it has been made by the Secretary of State. Bizunowicz v Poland

24. The first question identified in the IP’s response to the present application is whether this court has jurisdiction in relation to the 2022 costs order. A similar question was considered by the Divisional Court in Bizunowicz v Poland [2015] 1 WLR 2341 , albeit that case concerned extradition proceedings under Part 1 of the 2003 Act . In Bizunowicz , the Divisional Court was clear: section 26 of the 2003 Act (the equivalent to section 103 under Part 2) did not provide a direct right of appeal against a costs order imposed by the appropriate judge under section 60(1)(a) and (2) where an order for extradition had been made (the Part 1 equivalent to section 133(1) (a) and (2)); but, equally, an indirect means of appealing against such a costs order could not be derived from the High Court’s costs powers under section 60(3) (the equivalent to section 133(3) and (4) under Part 2). Indeed, the Divisional Court considered that allowing for such an indirect means of appealing against an order for costs would be anomalous, giving: “57. ... an indirect right of appeal on costs to those who challenged the Magistrates’ Court decision but not to a person who did not but who felt aggrieved just by the costs order. ...” This, it was felt, would: “... encourage hopeless appeals on the merits just in order to be able to pursue what might be a reasonable appeal on costs.”

25. Observing that a person who wished to challenge such a costs order could still seek to do so by means of judicial review, albeit that would be cumbersome, time consuming and costly, the Divisional Court concluded: “61. ... the High Court does not have jurisdiction to vary or quash a costs order made by the DJ pursuant to section 60(1)(a) and (2) whether there has been an unsuccessful appeal on the substantive order for extradition or whether there is simply an attempt to challenge the costs order made, but no Judicial Review proceedings have been brought in respect of the costs order.”

26. Having, however, allowed Mr Bizunowicz’s appeal against the extradition order made in his case, the Divisional Court returned to consider what power would be available to the High Court to quash or vary a costs order made by the appropriate judge under section 60(1) in such circumstances. It recorded that counsels’ researches in that case had produced two alternative answers: “63. ... that the court has an inherent jurisdiction to quash such an order for costs made by the DJ. In the alternative, counsel suggested that the High Court retains a supervisory jurisdiction which permits it to issue quashing orders, quashing a decision that has become void. In that case, it is argued, once the DJ's decision to order the person's extradition is successfully appealed and the High Court has ordered his discharge and quashed the order for extradition, pursuant to section 27(1) and (5)(a) and (b) [the Part 1 equivalent to section 104(1) and (5)(a) and (b)], then the High Court must exercise its supervisory jurisdiction to quash the costs order. That is because the basis on which the costs order was made, viz. that there has been an order for the person's extradition by the DJ, no longer exists, so there is no basis on which the costs order can be made.” The Court considered that the latter analysis was correct: “64. ... Once the basis for the costs order made under section 60(1)(a) and (2) has disappeared because the High Court has quashed the extradition order pursuant to section 27(5)(b), there is no basis on which the costs order could be made by the DJ. The very basis for the costs order under section 60(1)(a) and (2) has gone. We think that a power in the High Court to quash the costs order must be inferred into section 27(5)(b) as being a necessary consequence of quashing the extradition order on which the costs order was based. It would be the grossest injustice if it were otherwise.”

27. Although it was considering proceedings under Part 1 of the 2003 Act , the Divisional Court in Bizunowicz considered that sections 26 to 29, 34, 60 and 61 were equivalent to sections 103 to106, 133 and 134 under Part 2 (see the observations made at Bizunowicz paragraph 37). Thus, in referring to section 27(5) (b) of the 2003 Act , the Court appears to have understood this to be equivalent to section 104(5)(b) under Part 2. The parties’ arguments The appellant’s case

28. It is the appellant’s case that there is no material distinction in this court’s jurisdiction over costs below where there is a successful appeal in a Part 2 case (as here) and Bizunowicz , which fell under Part 1. U nder Part 2 of the 2003 Act , sending a case to the Secretary of State (pursuant to section 87(3) ) gave rise to no power to order that that person pay costs; that power only existed once an order for extradition was made pursuant to section 93(4) : whether under Part 1 or Part 2, any order for costs was thus wholly tied to the order for extradition (or discharge, however that had arisen). Given the jurisdictional basis for making costs orders in extradition proceedings was the same under both Part 1 and Part 2 of the 2003 Act – that is to say either consequent upon an order for extradition, or upon an order for discharge – it was apparent that the approach in Bizunowicz must apply mutatis mutandis to proceedings under Part 2.

29. Moreover, where the basis for the costs order no longer exists (because the High Court had quashed the order for extradition), the appellant says it will rarely be appropriate for the High Court to refuse to quash the costs order unless there was some compelling reason for not doing so, such as where there have been findings that challenges to extradition were raised improperly (rather than where challenges were simply rejected). The appellant says that no such compelling reasons existed in this case, and no unfairness arose given that the prosecuting authority (the CPS) had consented to the order allowing the appeal and quashing the extradition order. On the other hand, the appellant observes that, if enforced, the costs order would penalise her for seeking to defend herself in the extradition proceedings against the actions of a state which the UK government had accepted she reasonably feared to be persecuting her. Submissions for the IP

30. On the question of jurisdiction, the IP places emphasis on the two stages under Part 2 of appropriate the 2003 Act : (1) the judicial stage, and (separately) (2) the stage before the Secretary of State. That was to be contrasted with Part 1, where all issues to be decided were vested in one person (the judge). In this context, the IP contends that the reasoning in Bizunowicz could not apply to a Part 2 case except at the judicial stage; once sent to the Secretary of State, that stage was over. In the present case, the appeal - disposed of by Morris J’s consent order - was against the Secretary of State’s decision under section 108 ; because the appeal was allowed, the appellant had the benefit of a defendant’s costs order in respect of her section 108 appeal but that could not flow back to the 2022 costs order; the appellant was impermissibly seeking to use the order made on her section 108 appeal as a vehicle to attack a costs order made in another process. The appellant could have lodged a section 103 appeal against the SDJ’s sending decision, and, had she done so, the reasoning in Bizunowicz would apply; absent such an appeal under section 103 , however, the remedy in respect of the 2022 costs order must be either to apply to the SDJ to set it aside (under provisions in the Criminal Procedure Rules) or to seek a judicial review (albeit that would now be out of time).

31. The justification for this approach was apparent when considering the costs in question: the appellant could have consented to extradition and rested her case against removal on her (then pending) asylum application; the costs incurred by the IP in successfully resisting her opposition to extradition would not then have been incurred. This point also went to the question whether the 2022 costs order should be quashed in the event that the court considered it had jurisdiction to determine the application: the IP had successfully overcome the appellant’s vigorous resistance to extradition, succeeding in a contested application that the appellant should pay a proportion of the CPS’s incurred costs. The appellant had had a year to pay, until 19 September 2023, but had not challenged the 2022 costs order. It was only subsequent to the determination of the appellant’s claim for asylum, on 26 April 2024, that a late appeal was brought and disposed of by Morris J’s consent order. Analysis and conclusions

32. In addressing the jurisdictional question raised on this appeal, it is helpful to first set out what is not in dispute. Although it is common ground that the Divisional Court in Bizunowicz was concerned with proceedings under Part 1 of the 2003 Act , it is accepted that the principles laid down in that case should be held to apply to corresponding provisions under Part 2. Thus applying Bizunowicz so as to straightforwardly read across to Part 2 of the 2003 Act , the following propositions are not in dispute: (1) there is no direct right of appeal against a costs order made under section 133(1) and (2); (2) the costs jurisdiction provided to the High Court under section 104, applicable to an appeal brought under section 103 , cannot be construed to afford an indirect ability to challenge a costs order made under section 133(1) and (2); (3) where, however, a person who is subject to an extradition order successfully appeals the appropriate judge’s decision under section 103 , a power for the High Court to quash a costs order made under section 133(1) and (2) must necessarily be inferred into section 104(5)(b); (4) where there has been an unsuccessful appeal under section 103 , or where there is solely an attempt to challenge a costs order made under section 133(1) and (2), the High Court would not have the power to quash a costs order unless that had arisen by way of application for judicial review of the costs decision in issue.

33. The appeal in Bizunowicz had come before the Divisional Court under section 26 of the 2003 Act , and was thus solely concerned with a decision made by the appropriate judge. Allowing that the High Court retains a supervisory jurisdiction permitting it to quash a decision that has become void ( Bizunowicz , paragraph 63), the Divisional Court concluded that a power to quash a costs order made in the extradition proceedings must be inferred when the High Court has allowed a section 26 appeal and has then (as it would be bound to do) exercised the power afforded it under section 27(5) (b).

34. On the IP’s case, a material point of distinction thus arises in the present proceedings, which relate to an appeal brought under section 108 , against a decision made by the Secretary of State. The IP contends that, while the principle laid down in Bizunowicz can be applied to a corresponding Part 2 appeal against the appropriate judge’s decision under section 103 , the same reasoning does not apply to an appeal under section 108 ; that, it submits, relates to a separate process under Part 2, which has no counterpart in Part 1 of the 2003 Act (and was, accordingly, not referenced in Bizunowicz ), and which cannot be used to provide a means of challenge to a costs order made in the entirely distinct (judicial) stage of the process before the appropriate judge.

35. At first sight, there is a superficial attraction to the distinction that the IP seeks to draw. It is a distinction that arises from what can be seen to be a two-stage process under Part 2 of the 2003 Act , and in respect of which there are two avenues to an appeal to the High Court: section 103 (which relates to the sending decision) and section 108 (which arises only when the Secretary of State has made her decision). The appeal process under Part 1, in contrast, relates solely to the decision of the appropriate judge. Described in this way, the IP’s objection can seem to have some force: given there is no appeal before it under section 103 (relating to the decision reached at the judicial stage of the process), when allowing an appeal under section 108 (against a decision made by the Secretary of State), why should the High Court retain any supervisory jurisdiction in respect of costs before the appropriate judge?

36. The difficulty with the IP’s approach, however, is that it fails to engage with the way in which the 2003 Act places emphasis not on the separate stages of the decision-making process but on the making of the extradition order. Thus, although proceedings under Part 2 involve two decisions (the sending decision; the extradition decision), by two decision-takers (the appropriate judge; the Secretary of State), as in Part 1 of the 2003 Act , there is only one substantive determination: whether to make an order for the extradition of the individual in question or to order that person’s discharge. The point is made good by the individual statutory provisions relevant to appeals and costs under Part 2, as follows: (1) although section 103 provides for a right of appeal to the High Court against the sending decision by the appropriate judge, time only starts to run for bringing such an appeal after the Secretary of State has made an order in the case ( section 103(9) ); (2) where an individual nevertheless seeks to bring an appeal against the sending decision before the Secretary of State has determined whether or not they are to be extradited, the appeal will not be heard until the Secretary of State has made her decision ( section 103(5) ); (3) and, where the Secretary of State has ordered the individual’s discharge, no appeal can be pursued under section 103 ( section 103(7) ); (4) where the High Court allows an appeal brought under section 103 , it must order the appellant’s discharge and quash the order for extradition (section 104(1)(a) and (5)(a) and (b)); (5) the position is the same on an appeal to the High Court under section 108 : where the appeal is allowed, the court must order the appellant’s discharge and quash the order for extradition (section 109(1)(a) and (5)(a) and (b)); (6) notwithstanding a decision by the appropriate judge to send the case to the Secretary of State, no order for costs can be made unless and until the Secretary of State has made an order for the extradition of the individual in question: section 133 does not distinguish between the different stages of the decision-making process under Part 2, but simply makes provision for costs “ where extradition is ordered ”; as the explanatory notes make clear, the power to make an order for costs relates to the unsuccessful challenge to “ proceedings held under this Part of the [2003 Act] ” (not to any specific stage within “ this Part ”); (7) where an extradition order has been made, it is the appropriate judge who “ may make such an order [for costs] as he considers just and reasonable with regard to the costs to be paid by the person ” ( section 133(2) ), no distinction is made between the different stages of the decision-making process, or the different decision-takers, in this regard; (8) similarly, where a person has been discharged from the extradition request, it is the appropriate judge who has the power to make a costs order, pursuant to section 134 of the 2003 Act , which may relate to costs incurred at any stage of the Part 2 proceedings.

37. Thus paying attention to the structure of Part 2, and to the language of the relevant statutory provisions, it is clear that the approach of the Divisional Court in Bizunowicz not only reads across to appeals brought under section 103 of the 2003 Act , but also to those falling under section 108 . Once it is accepted that the same supervisory jurisdiction arises on a successful appeal under section 103 as on a successful appeal under section 26 , there is no reason, as a matter of construction or principle, why that would not also be the case where the High Court allows an appeal brought under section 108 . The decision is the same in both instances: the appellant is discharged and the extradition order quashed. In either case, the costs order will have been made under the same provision ( section 133(1) and (2)), by the appropriate judge, and will relate to the earlier unsuccessful challenge to proceedings under Part 2 of the 2003 Act . Whether considered as an appeal under section 103 or under section 108 , the reasoning that underpins the point of principle identified in Bizunowicz applies: the basis for the costs order having been the extradition order, once the latter has been quashed there is no basis for the former, and the High Court’s supervisory jurisdiction thus comes into play enabling it to quash a decision that has become void.

38. Thus, as a consequential matter in these proceedings, arising from Morris J’s order allowing the appeal and quashing the extradition order, I am satisfied that this court has jurisdiction to determine the appellant’s application to also quash the 2022 costs order, the basis for which (the extradition order) has now gone.

39. As the appellant has accepted however, the fact that the court has jurisdiction to quash the 2022 costs order does not mean that it must necessarily do so. Although the Divisional Court in Bizunowicz considered it would be the “ grossest injustice ” if the High Court was unable to quash a costs order when it had quashed the underlying extradition order on which it was based ( Bizunowicz , paragraph 64), as part of the supervisory jurisdiction of the High Court, it cannot be ruled out that circumstances might exist in which the court would decline to do so.

40. Thus acknowledging my residual discretion in this regard, I must nevertheless recognise that the basis for the making of the 2022 costs order was the extradition order: that was the event from which the 2022 costs order flowed, and, absent that event, the 2022 costs order would not – and could not - have been made. That the IP incurred costs when successfully resisting particular points of dispute raised by the appellant does not detract from the fact that it ultimately failed to secure the extradition order it sought. Although the order was discharged on an appeal against the Secretary of State’s decision, the consequence was the same: the basis for any costs order was removed. Analysed in this way, the point is really one of timing: had the asylum decision been made earlier, that could have fed into the Part 2 decision making process; no extradition order would have been made, and there would have been no power to make a costs order under section 133(1) (a). On this basis, it is hard to see that there is a proper basis for refusing to quash the 2022 costs order. The position might have been different, had it been found that the appellant had taken points in the extradition proceedings that were vexatious and/or wholly without merit (and there may be other circumstances in which there would be good reason to decline to quash a costs order, notwithstanding the quashing of the extradition order on which it was based), but that is not this case. Disposal

41. For the reasons provided, I therefore grant the appellant’s application in these proceedings and duly quash the 2022 costs order.