Section 60(3) of the Extradition Act 2003 gave the High Court power, having dismissed an appeal against an extradition order, to review and, where considered appropriate, to vary any costs order made against the requested person by the first instance court under section 60(1)(a) of the Act.

King J, sitting in the Queen’s Bench Division, so held in (i) dismissing an appeal by the defendant, Krzyzstof Skraba, against the decision of District Judge McPhee sitting at Westminster Magistrates’ Court ordering his extradition, pursuant to a European arrest warrant issued under Part 1 of the 2003 Act by the respondent judicial authority, the Regional Court in Nowy Sacz, Poland, but (ii) allowing the defendant’s challenge to an order that he pay costs in the sum of £500, varying the amount to be paid to £100.

Section 60 of the Extradition Act 2003, so far as material, provides: “(1) This section applies if any of the following occurs in relation to a person in respect of whom a Part 1 warrant is issued— (a) an order for the person’s extradition is made under this Part; (b) the High Court dismisses an appeal under section 26 … (3) In a case falling within subsection (1)(b), (c) or (d), the court by which the application or appeal is dismissed may make such order as it considers just and reasonable with regard to the costs to be paid by the person …”

KING J said that the wider reasoning adopted by the Divisional Court in construing section 18(1) of the Prosecution of Offences Act 1985 in Hamilton-Johnson v RSPCA [2000] 2 Cr App R (S) 390, which was equally applicable to the construction of section 60(3) Parliament having expressly stated in the explanatory notes that the latter provision had been based upon the former, was compelling. The only sensible interpretation of the decision in Hamilton-Johnson was that the court was acknowledging that section 18(1) of the 1985 Act gave the appellate court power to interfere with the costs order made below. There was no reason why the same effect should not be given to section 60(3) in a case falling within subsections (1)(b)(c)(d) of the same section, and the defendant’s case fell within section 60(1)(b). That reasoning was not undermined by the absence of any alternative statutory source of such power as was the case in Hamilton-Johnson. There were compelling pragmatic reasons why the High Court when properly seized of an extradition appeal should be able to review, and where appropriate vary or even quash, the costs order made below; and a requested person who sought both to appeal the extradition order and to challenge any adverse costs order should not be forced to use the statutory route under the 2003 Act for the one, and to institute a claim for judicial review for the other.