Functus officio? The unresolved question of the Home Secretary’s power to withdraw or amend extradition orders: Lloyd [2025]

For those few interested in the procedural niceties surrounding extradition orders made by the Secretary of State under Part 2 of the Extradition Act 2003, last Wednesday’s judgment in Lloyd v Secretary of State for the Home Department [2025] EWHC 656 (Admin) leaves two questions unanswered:

1. What impact do mistakes on the face of an order have on its presumptive validity?
2. Does the Secretary of State for the Home Department (“SSHD”) have a power to amend, withdraw or replace an extradition order, once made?

However, the case does stand to emphasise the court’s reluctance to allow disputes over technicalities to obstruct the expeditious disposal of extradition requests, particularly where there is no risk of injustice.

The Appellant, Carol Lloyd, is a Canadian fraudster who had been previously extradited to Canada in 2021, but subsequently returned to the UK in breach of her Canadian bail. Predictably, a new extradition request was made by the Canadian authorities and, in January 2023, the SSHD made a fresh extradition order for the Appellant’s return (“the first order”). That order, however, contained two notable mistakes: most significantly, it cited an incorrect date for the underlying Canadian extradition request.

In an attempt to rectify this, the SSHD made a second order, accompanied by a letter explaining that the first order was ‘invalid’ because it referred to an extradition request that did not exist. The Appellant appealed against this second order, centring her substantive argument on two points:

1. it was not for the SSHD to decide whether the first order was valid: this is a judicial function. Consequently, the first order remains presumptively valid until it is set aside by a court; and
2. once a (presumptively valid) extradition order is made (under s.93 Extradition Act 2003), the SSHD is functus officio and has no further power to set aside or vary the order. Therefore, the SSHD had no power to make the second order.

When making these arguments, the Appellant placed a body of case law before the court relating to the issue of public bodies being rendered functus officio.

Rebutting this, the SSHD (“the Respondent”) first contended that, to be valid, an extradition order must relate to an identifiable extradition request. As such, the first order was not valid and the SSHD was entitled to make a second, valid order.

In the alternative, the Respondent argued that – even if the first order was presumptively valid – the SSHD was not rendered functus officio following the making of the order. The SSHD has numerous ongoing responsibilities throughout the extradition process, and the case law recognises an implied power on the part of the SSHD to set aside extradition orders (e.g. R (McKinnon) v Home Secretary [2009] EWHC 2021 (Admin) at [64]-[66]). In this context, it was submitted, the SSHD was entitled, even obliged, to remedy the defect in the first order by making the second order.

In the instant case, Johnson J would not be drawn into this substantive dispute.

The Appellant’s appeal was advanced under two alternative provisions: (1) s.108 Extradition Act 2003 (“EA 2003”), applying the conditions in s.109(4); and (2) the court’s supervisory jurisdiction under s.31 Senior Courts Act 1981 to quash the decision of the SSHD.

Johnson J dismissed the appeal under ss.108-109(4) EA 2003 on the basis that the condition in s.109(4)(b) was not met. s.109(4)(b) requires that a new issue before the court (here, the validity of the first extradition order) would have resulted in the SSHD deciding one of the questions in s.93(2) – which the SSHD must consider before she makes an extradition order – differently. The Appellant, however, accepted that the SSHD’s answers to the s.93(2) questions were correct.

Johnson J further refused to exercise the court’s supervisory jurisdiction, citing the lack of any formal application for judicial review and the lack of any identifiable injustice requiring a remedy. Indeed, Johnson J even indicated that – were he to accept the Appellant’s submissions – the absence of bad faith, unfairness or injustice meant that there was no reason for the court to choose to exercise what is a discretionary remedy.

As a consequence, the substantive issues in this case continue to await clarification. The latter of these issues – that is, whether the SSHD has an implied power to withdraw (or, indeed, amend) an extradition order – is in particular need of this, given the reference in several authorities to the SSHD’s ability to ‘reconsider’ extradition in Part 2 cases (e.g. McKinnon v United States of America [2007] EWHC 762 (Admin) at [63] and Taylor v Governor of HMP Wandsworth [2009] EWHC 1020 (Admin) at [12] and [32]). However, the key takeaway from Lloyd [2025] is the court’s reluctance to allow technical or procedural errors to obstruct an otherwise lawful extradition, particularly where such an extradition does not give rise to an injustice in need of remedy.

James Cox is a barrister at 2 Hare Court and accepts instructions across extradition law, crime, and professional discipline. For full details of his practice, click here.