Bad actors [1, 2] lost the US

oday there’s some very strong and stubborn bird here, one that tries to prevent us shutting the doors by sticking the head inside or using the body to obstruct the door.

It’s risky, but this bird does not care.

We’ve already fed all the birds except Edwin and it wasn’t even 8AM yet. It’s getting colder.

Thankfully, Mr. Green no longer has the sneeze (recuperation).

Today we plan a little celebration, seeing a shift to the left in the US. We’ll have some drinks and I’ve written Rianne some cards. She always enjoys these.

We envisage a year of political ‘activism’ in the technical side/angle. There’s a growing likelihood we’ll take this to the Court of Appeal.

Last week a speech was made by Mr Justice Fordham. It’s at the front page of the “News and updates” at judiciary.uk.

This is a part that I can relate to:

Focus for any appeal

4. This is my second point: the Judgment of the EDJ is the essential focus for any appeal to the High Court. It is the essential focus in principle, and in practice. In principle, it is the key prism for the analysis. Because the appeal court has to ask whether it thinks the EDJ went wrong. This is not an appeal afresh, like some appeals from magistrates courts to crown courts. It is not a fresh start, with fresh evidence. The necessary focus is on what the EDJ made of the case. In practice, the Judgment of the EDJ will always be a key reference point for the appeal. Because the Judgment of the EDJ will gather together the relevant features of the case in one helpful place. The starting point will always be to ask what the EDJ said about any particular feature of the case, in the Judgment.

5. For these reasons – of principle and practice – the EDJ’s Judgment is the High Court’s focus when dealing with an application for permission to appeal. It is the focus when determining any substantive appeal. But that does not mean that the EDJ was writing the Judgment for the High Court. They were writing the official product for the parties. In writing the product for the parties, and discharging the professional judge’s duty, the parties in any appeal and the court dealing with the appeal can see those features: the relevant statutory scheme and how it was applied; the relevant evidence and how it was evaluated; what the key findings of fact were; what the applicable legal principles were; what the EDJ made of the key arguments; what the EDJ’s key conclusions were; and key reasons for those conclusions.

6. Let me put you in the place of the Extradition High Court Judge. Here are the appeal papers in a new extradition case. There will be a bundle. There will be perfected grounds of appeal. There will be a respondent’s notice incorporating submissions. In the run up to a hearing, there will be skeleton arguments. There may be putative fresh evidence. There will be all the primary materials in the case. There will be the extradition request or warrant, perhaps supplementary information or further information. Statements and documents and reports and medical records and assurances and all the rest. Our hypothetical appeal Judge can see all of that. But their quest is for something else. Our High Court Judge is scanning the index to the bundle. There is one document which any High Court judge dealing with any extradition appeal will search for, will start with, will put at the front of a printing queue, will extract it from a hardcopy bundle. It is the golden document. It is the Judgment of the EDJ. That, in principle, is the prism for considering the appeal. That, in practice, is the reference-point for the features of the case.

7. In my experience, whenever any party to any appeal wants to make a point about a feature of the case, it is always helpful to know the answer to this question: what did the EDJ say about this point in the Judgment? My own practice, whenever I am preparing an extradition appeal ahead of a hearing, is to make notes on a single piece of A4 paper. I will try to note the key features of the case, as relevant to the issues in the appeal. They may be documents with dates, or relevant events. They may be people or the key evidence they gave. They will include facts as found by the EDJ. They will include the relevant law, with the key statutory provisions, and key passages from key authorities. In noting the key features of the case, I will annotate my notes using red numbering, to identify where in the Judgment of the EDJ this feature is to be found. To do this is to use the Judgment of the EDJ as a reference-point for the appeal. Sometimes, an appeal will involve issues or materials which were not addressed in the Judgment of the EDJ. There may be putative fresh evidence, including any relevant updating evidence. Or it may be said that there has been some change in circumstances which warrants the introduction of a fresh issue. But in those situations it is important to recognise that a point was not argued before the EDJ, or certain evidence was not relied on before the EDJ.

8. Sometimes, in extradition appeals to the High Court, advocates are unable to resist the temptation to try and put the Judgment of the EDJ to one side, and argue the facts and law “from scratch”. It is as though the appeal starts with a blank sheet, like an appeal afresh (“de novo”). Perhaps they cannot resist blocking and pasting written submissions which they used below, or perhaps some stock submissions on the Article 8 caselaw. Questions on an appeal, which relate to evidence and fact, will always need to be addressed having regard to what the EDJ said about the evidence, and found as to the facts. For questions of law, there is no need to reinvent the wheel. The Judgment of the EDJ will be the reference-point. It is the focus for the parties to pinpoint any error or omission of law which they say has occurred, if that is what they are saying. The position is illustrated by something I said about the Judgment of the EDJ in a recent case (Hojka v Polish Judicial Authority [2026] EWHC 2400 (Admin) at §2):

The Judge set out the law … in great detail and with great care. 16 principles were identified by the Judge over the course of 3 pages in the Judgment, citing 20 authorities. As [Counsel] rightly recognises, the clear focus and reference-point for the appeal can and should be the Judge’s analysis of the law. Nowhere is it said on behalf of the Appellant that the Judge was wrong in his description of the law. No misdescription or omission is identified. Rather, this case concerns the application of the established principles from the leading authorities.

9. So – in principle because it is the relevant prism, and in practice because it is the key reference point – the Judgment of the EDJ is the essential focus for an appeal.

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