This judgment was handed down remotely at 10.30am on 9 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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MRS JUSTICE FARBEY :
Introduction
- The applicant is a Hungarian national. He is wanted by the respondents (the Tribunal of Gyor and the Regional Court in Veszprem) for criminal offences set out in "conviction" arrest warrants. His extradition hearing took place before District Judge Grace Leong ("the DJ") at Westminster Magistrates' Court between 13 and 16 March 2023 and then again on 14 and 15 June 2023. The DJ heard the case of his partner, Ms Timea Erdelyi, at the same time.
- In a written judgment handed down on 26 June 2023, the DJ ordered that Ms Erdelyi be discharged, primarily on mental health grounds, but that the applicant be extradited. This is my judgment in relation to three out of four of the grounds of appeal advanced in the applicant's renewed application for leave to appeal against the DJ's decision. For reasons to which I shall return, the parties have agreed that the fourth ground of appeal should be adjourned to a further hearing.
- Although the respondents are appellate authorities in Gyor and Veszprem, the underlying criminal convictions, before the respondents took appellate decisions, were the result of decisions of the District Court of Sopron and the District Court of Pápa. For present purposes, the name or nature of the judicial authorities seeking the applicant's extradition has no bearing on the issues.
The applicant's grounds of appeal and documents
- On behalf of the applicant, Ms Louisa Collins (who did not appear below) adopted perfected grounds of appeal (drafted by previous counsel) that run to nearly 30 pages. The perfected grounds are supported by Ms Collins' skeleton argument and her "submissions on psychiatric report". The grounds of appeal may be summarised as follows:
i. Ground 1: Information in the fourth arrest warrant ("AW4") and dual criminality: The DJ was wrong to find that AW4 contained adequate particulars of offences of "abuse of a minor." The information about those offences was inadequate and breached section 2(2)(b) read with section 2(6)(b) of the Extradition Act 2003 ("the Act"). Further, the DJ was wrong to find that the conduct founding those offences met the test for dual criminality, under section 10(2) read with section 65(3)(b) of the Act, because such conduct would not constitute an offence under English law.
ii. Ground 2: Extraneous considerations: The DJ ought to have found that extradition was barred under section 13 of the Act by reason of extraneous considerations, namely the applicant's Roma ethnicity.
iii. Ground 3: Prison conditions: The DJ was wrong to find that the assurance made by the Hungarian Government as to minimum personal space in prison would be effectively implemented and monitored if the applicant were extradited to Hungary. More generally, the state of prison conditions in Hungary would give rise to a breach of article 3 of the European Convention on Human Rights ("the Convention").
iv. Ground 4: Article 8 of the Convention: The DJ was wrong to conclude that the applicant's extradition would be a proportionate interference with his right to respect for private and family life under article 8 of the Convention.
- The applicant relies on the following bundles of documents:
i. A Core Bundle running to 637 pages;
ii. Bundle B1 running to 710 pages;
iii. Bundle B2 running to 223 pages;
iv. Bundle B3 running to 742 pages;
v. Medical records running to 178 pages.
- The applicant seeks to rely on fresh evidence that was not before the DJ, which I shall itemise for ease of reference:
i. Item 1: A psychiatric report by Dr Frank Farnham dated 8 May 2024.
ii. Item 2: The applicant's medical records up to 21 February 2025.
iii. Item 3: The report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ("CPT") to the Hungarian Government dated 3 December 2024; and the Hungarian Government's Response of the same date.
iv. Item 4: Three reports by the Hungarian Helsinki Committee ("HHC"), namely: (a) Response to the FRANET Service Request no 17 – Criminal Detention in the EU: Conditions and Monitoring (6 May 2024); (b) The Last Piece of the Puzzle? Assessing the Performance of Hungary's National Human Rights Institution (2024); and (c) a letter from the Co-Chair of the HHC to the Council of Europe dated 22 January 2025, about the case of Gabor and Varga v Hungary.
v. Item 5: A statement dated 30 September 2024 by Mr Maurice O'Leary who describes his experiences in prison in Hungary following his extradition from the United Kingdom to Hungary on 23 August 2022. I was informed by Ms Collins that the statement was written for the purposes of another case.
vi. Item 6: A statement dated 17 February 2025 by Dr Martí Kofalvi who is the applicant's lawyer in Hungary. I have also been provided with an email from Dr Kofalvi dated 3 June 2024, about the operation of the applicant's sentence, and a judgment of the District Court of Pápa dated 18 October 2023. These various documents show that the applicant's sentence will be served in prison and that he may be released on licence after serving two-thirds of his sentence.
vii. Item 7: A statement dated 11 June 2024 by the applicant's daughter Bernadett Berki. This brief statement was made for the purpose of the applicant's bail application. It describes the family's financial situation and other matters relevant to the question of bail.
viii. Item 8: Other miscellaneous evidence comprising: (a) an NHS record sheet showing that Bernadett Berki went to hospital with a painful wrist on 5 June 2023; (b) a letter advising Bernadett Berki of a physiotherapy appointment on 13 June 2023; (c) a GP letter dated 22 June 2023 saying that Bernadett Berki was Ms Erdelyi's carer while the applicant was in prison; and (d) a letter from the Department for Work and Pensions dated 14 March 2024 stating that Ms Erdelyi's rate of Personal Independence Payment was rising.
- The applicant's representatives (who were responsible for the bundles) gave little consideration as to whether such voluminous documentation was necessary. There was little consideration as to how the material in the bundles could be organised so as to enable the court to deal efficiently with the application.
Respondents' position and documents
- On behalf of the respondents, Ms Hannah Burton resisted the application on all grounds. She relied on her written submissions dated 29 August 2023, together with a skeleton argument and submissions on Dr Farnham's report. The respondents have provided various items of further information in response to the grounds of appeal and the fresh evidence. In the event, it has not proved necessary for me to deal with the further information in detail.
Facts
The applicant's circumstances
- The DJ's judgment runs to 140 pages but does not contain a comprehensive account of the facts that she found proved. Neither of the parties provided this court with a comprehensible account of the applicant's circumstances. The following account is based on my understanding of the documents which I have had to piece together.
- The applicant was born in 1977. Ms Erdelyi is his longstanding partner. They have one son Tamas, who is now aged 26, and four daughters, namely Barbara (aged 27), Nikoletta (aged 24), Bernadett (aged 19) and Szimonetta (aged 18). Barbara lives in Hungary with her two children. Tamas has left home and leads an independent life in England. Nikoletta (who appears still to live at home) has a young child of her own.
- The applicant came to the United Kingdom in 2009, in order to work. He returned to Hungary after a few months. At some stage he came back to the United Kingdom. In September 2014, he was required to attend Sheffield Magistrates' Court in relation to an offence of the possession of criminal property, namely £19,000 held in his bank account. However, he absconded and returned to Hungary.
- The applicant was in prison in Hungary between 2 October 2014 and 8 June 2015. He returned to the United Kingdom on 13 January 2017.
- On 11 January 2022, the applicant was located by armed police and found hiding in the insulation of the loft at an address in Leicester. He was arrested for the extradition offences. On 12 January 2022, there was an initial hearing at Westminster Magistrates' Court in relation to extradition. The applicant was subsequently sentenced to ten months' imprisonment for the English offence.
- Little picture emerges of how the applicant has spent his time in the United Kingdom, other than his offending, the lengthy period of his absconding and his claim to have worked as a self-employed painter and decorator. In an unsigned and undated proof of evidence which he adopted at the extradition hearing, he says that, since living in the United Kingdom, he has kept out of trouble. In light of his serious criminal conviction, that assertion falls to be rejected. The applicant has applied to the Home Office for pre-settled status.
The arrest warrants
- There were four arrest warrants before the DJ. The first warrant ("AW1") was issued by the first respondent on 7 February 2018 and certified by the National Crime Agency ("NCA") on 8 October 2021. AW1 relates to 18 offences which can be broadly and compendiously described as fraud in relation to the acquisition of vehicles in 2008, 2009 and 2011.
- The second arrest warrant ("AW2") was issued by the first respondent on 7 February 2018 and certified by the NCA on 11 January 2022. It relates to five offences which may again be broadly and compendiously described as fraud relating to the acquisition of vehicles in 2008 and 2009.
- The third arrest warrant ("AW3") was issued by the second respondent on 27 June 2018 and certified by the NCA on 13 October 2021. It relates to six offences including offences of "the abuse of a minor" under section 195(1) of the Hungarian Criminal Code ("the Code").
- The DJ described two incidents of abuse of minors, as follows, referring to the applicant as AB:
"45. Incident 1: AB decided to steal iron materials from a paper mill. On the 6th July 2012, he organised 3 other people including two juveniles to accompany him in his vehicle and trailer to steal. The group of 4 went to the premises and gained entry by removing a gate. AB and others entered and gathered 15 pieces of iron of 6 metres in length before they were disturbed by the owner who arrived at the site. The group fled without stealing anything…
46. Incident 2: on the 15th April 2013, AB and his 3 daughters, Nikoletta (12), Bernadett (7) and Szimonetta (6) went into a Lidl store. He persuaded his children to steal 4 cartons of cigarettes. The children tried to open the entry door of the supermarket but it could not be opened from the inside. AB went outside and entered using the door that children had tried. AB ensured that his children could leave the store with the stolen cigarettes. In getting his children to commit an offence, he had abused their mental, emotional and moral development".
- AW3 also covered the burglary of a warehouse in 2005, which was described by the DJ as follows:
"47. On the 19th December 2005 at about 10.00pm, AB and 5 other co-defendants arrived in a truck and a car at the gated premises of a metal warehouse… and demanded of the guard that they be let into the premises. The guard was told that if he did not open the gate, there would be problems. The frightened guard agreed and went into the office to operate the gate. Two of the co-defendants had already climbed into the premises. AB stayed with the guard while the co-defendants forced entry into the warehouse and stole 350 kg of yellow brass… as well as 90 kg aluminium castings… before leaving the premises".
- AW4 was issued by the second respondent on 1 April 2019 and certified on 13 October 2021. It relates to five offences concerning the abuse of minors and a separate fight at a hospital in April 2012. The DJ describes these offences as follows:
"61. AB and TE [Ms Erdelyi] failed to ensure that the 3 younger children attended school resulting in persistent and prolonged absences from school and a disrupted education.
62. AB and TE failed to provide adequate accommodation for their children as their house was in a state of disrepair.
63. AB and TE failed to allow medical treatment for Bernadett where she required medical intervention and speech therapy for a voice generation issue.
64. AB and TE failed to cooperate with welfare services upon two of their daughters being placed under the protection of the District Guardian Office.
65. AB and TE failed to ensure that the children comply with 'misdemeanour procedures' after they were caught stealing from others …
66. On the 15th February 2012, AB and TE went into the Interspar department store with their 3 younger children. AB and ET placed 4 bars of salami into a shopping basket. TE went to a different section of the store where Nikoletta removed the salami from the shopping basket and returned the basket to her mother. Nikoletta made her way out of the store without the items and when the security started to run after her, AB shouted to his daughter to run away. Nikoletta threw the salami outside of the store. AB, TE and the remaining children left the store while Nikoletta escaped on foot…
67. On the 6th April 2012, AB and others visited a patient at a hospital. The group then became involved in a fight outside the hospital exchanging punches with one another. A large number of unknown people rushed to the scene. Two persons were injured during the fight and treated in hospital. AB sustained minor injuries that healed within 8 days. The fight involved at least 4 persons and caused alarm and indignation in other people".
- At the time of the hearing before the DJ, the applicant faced various sentences for the various offences in the warrants. On 3 March 2023, the applicant's Hungarian lawyer applied to the Hungarian judicial authorities to amalgamate the sentences. In further information dated 27 January 2025, the second respondent confirmed that, as a result of the amalgamation proceedings, the applicant's overall sentence was 9 years 11 months and 20 days' imprisonment. The sentence of 3 years 4 months imposed for the offences in AW4 could not be amalgamated and formed a discrete part of the overall sentence.
- After I had reserved judgment and then circulated a draft written judgment to the parties, the applicant's solicitor provided me with a copy of an order made by an Administrative Court lawyer on 15 April 2025 under delegated powers. The lawyer quashed the order for the applicant's extradition made by the DJ in respect of AW1 and AW2, and ordered that the applicant be discharged in relation to those warrants pursuant to section 42 of the Act. It follows that AW1 and AW2 were extant at the time of the hearing before the DJ, and at the hearing before me, but now fall out of the picture. The other warrants (AW3 and AW4) remain in force and remain the subject of the grounds of appeal.
Assurance from the Hungarian Government
- The Hungarian Ministry of Justice has provided an assurance about the extent of the personal floorspace which the applicant will be afforded in prison. The purpose of the assurance is to prevent the United Kingdom from breaching article 3 of the Convention by exposing the applicant to prison overcrowding that is so severe that it would amount to at least degrading treatment.
- The assurance is summarised by the DJ in her judgment, as follows:
"111. On the 31st January 2022, Dr Forman, the head of department at the Department of International Criminal Law at the Ministry of Justice states that a binding assurance is provided to guarantee that AB surrendered from England and Wales will be detained in conditions that will guarantee at least 3 square metres of personal space regardless of the regime or custody facility that he will be detained in. The requested person will at all times be accommodated in a cell in which he will be personally provided with the guaranteed personal space and should any temporary reduction in minimum personal space becomes necessary, the conditions will remain compatible with Article 3 of the European Convention on Human Rights.
112. The assurance states that as at 1st January 2015, Hungary has signed, ratified and implemented the Optional protocol to the UN Convention against torture and designated the General Ombudsman as its National Preventive Mechanism. The General Ombudsman will monitor compliance with this assurance."
- The Hungarian Government has therefore stated both that the applicant will be assured at least three square metres of personal space and that the General Ombudsman will monitor compliance with the assurance. The General Ombudsman (also known as the Commissioner for Fundamental Rights) is Hungary's National Preventive Mechanism under the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. The Ombudsman is also Hungary's National Human Rights Institution ("NHRI") under the United Nations Paris Principles. Those principles require NHRIs to be independent in law and to operate independently in relation to membership, operations, policy and control of resources.
The DJ's findings
- The DJ's findings may be summarised as follows:
i. The respondents are judicial authorities within the meaning of section 2(2) of the Act and each of the warrants was sufficiently particularised under section 2(6) of the Act. The warrants were, therefore, validly issued.
ii. The applicant's extradition would not give rise to a breach of article 5 of the Convention (right to liberty) or article 6 of the Convention (right to a fair trial).
iii. The "dual criminality" test was met in relation to each of the offences within each of the warrants, so that the offences for which the applicant's extradition was sought were "extradition offences" under section 10 of the Act.
iv. Extradition was not being sought for extraneous considerations – such as the applicant's Roma ethnicity – and so the bar to extradition under section 13 of the Act did not apply.
v. There was no bar to extradition by reason of the passage of time under section 14 of the Act.
vi. No issues relating to the prospects of retrial arose under section 20 of the Act.
vii. In light of the assurance provided by the Hungarian Government, the applicant's extradition would not give rise to a breach of article 3 of the Convention.
viii. The applicant's extradition would not give rise to a disproportionate interference with his article 8 rights. As a factor weighing in favour of extradition in the article 8 balance, the DJ found that the applicant is a fugitive from justice in that he returned to the United Kingdom in order to avoid the Hungarian criminal justice system.
- In reaching these conclusions, the DJ considered the evidence given by the applicant, Ms Erdelyi and Bernadett Berki. She also considered the written and oral evidence from expert witnesses called on behalf of the applicant. Dr Ivóna Bieber gave evidence about relevant aspects of the operation of the Hungarian criminal justice system, the treatment of the Roma community within the criminal justice system, and the question whether the assurance given by the Hungarian Government would be effectively monitored by the General Ombudsman. Dr Bieber is a member of the Budapest Bar and a permanent contracted attorney-at-law at the HHC.
- The DJ received written and oral evidence from Professor Michael Stewart, who is Professor of Social Anthropology at University College London. Professor Stewart describes himself as "the leading expert in the UK and one of the leading European experts on Romany experiences in eastern Europe." The perfected grounds of appeal say that he was called to give evidence on "the numerous and complex ways discrimination operates to the detriment of the Roma population, including within the criminal justice system."
- The DJ was provided with the applicant's medical records up to 28 March 2023. Her judgment notes that, before he was remanded in custody, the applicant had no occasion to see a doctor with regard to any ailment. In custody, he had complained of headaches for which painkillers had been prescribed. He had been worried about the welfare of his family and had complained of not being able to sleep. He was referred for minor hospital treatment for an ear problem.
- The DJ's judgment notes that the applicant suffered an anxiety attack in the dock during one day of his extradition hearing and was taken to hospital.
Fresh medical evidence
Dr Farnham's report
- Dr Farnham is a consultant forensic psychiatrist. He gave neither written nor oral evidence to the DJ. He assessed the applicant on 25 March 2024 at HMP Wandsworth, where the applicant had been remanded in custody. His report indicates that there was no record of the applicant having a mental disorder before he was remanded in custody. Prison medical records showed that he had complained of chronic problems with sleep. In early 2023, he had complained about "seeing things" and incontinence. He had suffered in prison from panic attacks and anxiety.
- Dr Farnham noted that the applicant's presentation during the assessment was unusual and bizarre. The applicant was "regressed" and almost "childlike." He gave an account of experiencing auditory hallucinations involving his parents. He maintained that his parents were with him but that he was actually dead and in a morgue. He stated that that he was experiencing symptoms of depression and anxiety constantly.
- Dr Farnham concluded that the applicant was "exaggerating some of his symptoms" or that he could be malingering. According to Dr Farnham's report, any exaggeration was likely to "represent a factitious disorder" but, in Dr Farnham's opinion, the applicant's account of his own mental state did not "appear to be reliable enough to allow a clear and unequivocal diagnosis to be made." Dr Farnham's "preliminary view" was that the applicant was suffering from a generalised anxiety disorder, with episodes of panic, and a depressive illness; but he was possibly suffering from Ganser syndrome which Dr Farnham described as "a rare and controversial condition" that may be viewed as a "dissociative pseudomania."
- Dr Farnham's report states that it is "difficult to provide a clear prognosis." His report continues:
"It seems to me that the stress of imprisonment is implicated in the deterioration in his mental state. In my view he is genuinely suffering from generalised anxiety and depressive illness. If his nihilistic ideas are delusions then this would suggest that his condition is serious. However, it is not clear if he is simply exaggerating the symptoms… In my view [the applicant] should be started on an antidepressant medication, if he has already not already been, and be reviewed after two months to monitor any improvement.
…
In general terms, it seems to me, given [the applicant's] current mental state, that extradition is likely to lead to some further deterioration, even if he is exaggerating some of his symptoms. However, it is difficult to be precise about this as at the current time because of his apparent unreliability."
Medical records
- The applicant's medical records show that he has been prescribed an anti-depressant medication for many months. Among other things, the records state:
"Voices started since he has been in prison, hearing his dead mother and father telling him to go home to his family. He reported walking up and down his cell at night, not sleeping. He requested sleeping pills.
I can see he had promethazine in 28/12/ 23 and previously 11/ 11/ 13.
He is also requesting an assessment for depression and medication from the GP.
Risk: He denied any risk of harm to self or suicide. No evidence of self-harm observed. His protective factors are his family.
Impression: [The applicant] appeared low in mood, unable to hold his emotions, voice loud as he explains his mental condition at the moment."
- This entry to the records was made on 12 January 2024. The applicant was referred to HMP Wandsworth for psychotherapy on 25 January 2024 but declined to attend.
Legal framework
- By virtue of section 27(2) of the Act, an appeal may be allowed only if the conditions in section 27(3) or (4) are met, as follows:
"(3) The conditions are that—
(a) the appropriate 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 appropriate 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."
- The correct approach to appeals in extradition cases was summarised by Lord Burnett LCJ in Love v Government of the United States of America (Liberty intervening) [2018] EWHC 172 (Admin), [2018] 1 WLR 2889, para 25:
"… The appeal must focus on error: what the judge ought to have decided differently, so as to mean that the appeal should be allowed. Extradition appeals are not re-hearings of evidence or mere repeats of submissions as to how factors should be weighed; courts normally have to respect the findings of fact made by the district judge, especially if he has heard oral evidence. The true focus is not on establishing a judicial review type of error, as a key to opening up a decision so that the appellate court can undertake the whole evaluation afresh. This can lead to a misplaced focus on omissions from judgments or on points not expressly dealt with in order to invite the court to start afresh, an approach which risks detracting from the proper appellate function…
26. The true approach is more simply expressed by requiring the appellate court to decide whether the decision of the district judge was wrong. What was said in the Celinski case and In re B (A Child) are apposite, even if decided in the context of article 8. In effect, the test is the same here. The appellate court is entitled to stand back and say that a question ought to have been decided differently because the overall evaluation was wrong: crucial factors should have been weighed so significantly differently as to make the decision wrong, such that the appeal in consequence should be allowed."
- At this stage, the applicant must show that, on one or more grounds, he has a "reasonably arguable" case (CPR 50.17(4)(b)).
- As regards the admissibility of fresh evidence on appeal, it was not in dispute that the test is to be found in The Szombathely City Court v Fenyvesi [2009] EWHC 231 (Admin), [2009] 4 All ER 324. In that case, the court held that the party seeking to rely on evidence must show that (i) the proposed fresh evidence was not available at the extradition hearing before the DJ and (ii) the proposed fresh evidence would be decisive. The test is a strict one, consonant with Parliament's intention in the Act "that extradition cases should be dealt with speedily and should not generally be held up by an attempt to introduce equivocal fresh evidence which was available to a diligent party at the extradition hearing" (Fenyvesi, para 32).
- The question whether evidence was available at the extradition hearing is a question of substance and not form. A report about prison conditions in the requesting state may be published after the extradition hearing so that the report itself would self-evidently have been unavailable to the DJ. Nevertheless, it will not constitute fresh evidence unless it states something new about prison conditions. It is the evidence that must be fresh, not the report in which the evidence is published. Otherwise, a person could resist extradition simply by filing speculative grounds of appeal and awaiting some further report about prison conditions. This sort of strategic delay would be inconsistent with section 27(3) of the Act, which expressly limits the scope for a successful extradition appeal and thereby promotes the expeditious progress of extradition requests.
Ground 1: Information in AW4 and dual criminality
Statutory provisions
- By virtue of section 2(2)(b) read with section 2(6)(b) of the Act, a conviction warrant must contain particulars of the conviction for the offence specified in the warrant. There is no need for an exhaustive description of the offence. Sufficient circumstances must be set out in order "to enable the requested state and the requested person to be able to ensure that any barriers to extradition, whether compulsory or optional, do or do not apply or can be relied on" (King v France [2015] EWHC 3670 (Admin), para 16).
- Section 10(2) of the Act provides that a DJ must decide whether an offence specified in an arrest warrant is an "extradition offence." If the DJ answers that question in the negative, he or she must order the person's discharge. Section 65(3)(b) of the Act provides that, in order to qualify as an "extradition offence", the conduct forming the offence must (among other things) constitute an offence under English law if it were to occur in England. In shorthand, there must be "dual criminality."
- In considering the question of dual criminality, the court's focus must be on the conduct giving rise to the offence in the requesting state and not on finding an equivalent offence with reference to the elements of the foreign offence (Norris v Government of the United States of America [2008] UKHL 16, [2008] 1 AC 920, paras 65 and 91). It does not matter that, in England, the conduct may be charged or prosecuted as one offence rather than another: what matters is that the conduct set out in the warrant would amount to an offence in English law (Balaz v District Court of Zvolen (Slovakia) [2021] EWHC 1862 (Admin), para 16; Lakatos v Four Hungarian Judicial Authorities [2024] EWHC 2452 (Admin), para 42).
- In Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin), para 57, the Divisional Court held that, in order to meet the dual criminality test, the conduct alleged in the warrant must include the necessary mens rea for an English offence:
"…it [is] not necessary to identify in the description of the conduct the mental element or mens rea required under the law of England and Wales for the offence; it was sufficient if it could be inferred from the description of the conduct set out in the EAW. However, the facts set out in the EAW must not merely enable the inference to be drawn that the Defendant did the acts alleged with the necessary mens rea. They must be such as to impel the inference that he did so; it must be the only reasonable inference to be drawn from the facts alleged. Otherwise, a Defendant could be convicted on a basis which did not constitute an offence under the law of England and Wales, and thus did not satisfy the dual criminality requirement. For example, an allegation that force or coercion was used carries with it not only the implicit allegation that there was no consent, but that the Defendant had no reasonable belief in it. If the acts of force or coercion are proved, the inference that the Defendant had no reasonable belief in consent is plain" (emphasis in the original).
Comparative provisions in Hungarian and English law
- As I have mentioned above, AW3 and AW4 contain offences of "abuse of a minor" under section 195(1) of the Code. According to the translation before me, section 195(1) provides as follows:
"A person who is in charge of the upbringing, custody or looking after a minor, who seriously violates its obligations arising from this task, and thereby endangers the physical, intellectual or moral development of the minor, is guilty of a felony punishable by imprisonment between one to five years" (emphasis added).
- Ms Collins focused her dual criminality submissions on AW4. The DJ determined that conduct alleged in AW4 would constitute child cruelty under section 1 of the Children and Young Persons Act 1933 ("the 1933 Act"), which provides (in so far as material):
"(1) If any person who has attained the age of sixteen years and has responsibility for any child or young person under that age, wilfully assaults, ill-treats (whether physically or otherwise), neglects, abandons, or exposes him, or causes or procures him to be assaulted, ill-treated (whether physically or otherwise)], neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering or injury to health whether the suffering or injury is of a physical or a psychological nature), that person shall be guilty of an offence, and shall be liable—
(a) on conviction on indictment, to a fine or alternatively, in addition thereto, to imprisonment for any term not exceeding 14 years;
(b) on summary conviction, to a fine…, or alternatively, in addition thereto, to imprisonment for any term not exceeding six months.
(2) For the purposes of this section—
(a) a parent or other person legally liable to maintain a child or young person, or the legal guardian of a child or young person, shall be deemed to have neglected him in a manner likely to cause injury to his health if he has failed to provide adequate food, clothing, medical aid or lodging for him, or if, having been unable otherwise to provide such food, clothing, medical aid or lodging, he has failed to take steps to procure it to be provided under the enactments applicable in that behalf".
- As the DJ set out in her judgment, the mens rea required for an offence under section 1 is found in the word "wilfully" in section 1(1). For present purposes, it is sufficient to note that a wilful act means a deliberate act, done by conscious decision (R v Shepherd [1981] AC 394 at 399D and 403C-D).
The parties' submissions
- Under Ground 1, Ms Collins submitted that the offences of "abuse of a minor" in AW4 were framed in vague terms, straying into the amorphous and controversial area of exactly what endangers "physical, intellectual or moral development" under section 195(1) of the Code. The particulars in the warrant were therefore inadequate under section 2 of the Act.
- Ms Collins further submitted that the conduct underlying the offences of abuse of a minor in AW4 would arguably not constitute an offence under English law, such that the "dual criminality" test was not met. She referred to the judgment of the District Court of Pápa which is fully set out in AW4. That judgment says that the applicant and Ms Erdelyi moved from a family home with "comfort services" to a house with no bathroom. At this new address there was "often a large quantity of household waste accumulated in the courtyard of the real estate, the window glasses were broken and covered with cardboard boxes and clothes." The applicant and Ms Erdelyi had music switched on at full volume so that their children could not rest or study properly at home. The children were frequently absent from school such that they did not have a proper education. Ms Collins submitted that these elements of the applicant's conduct showed no more than a family in poverty with parents struggling to get their children to school. She submitted that this sort of conduct could not possibly give rise to criminality in English law.
- Ms Collins conceded that the applicant's failure to secure his children's attendance at school was conduct of the sort that could be charged as an offence in English law under section 444(1) of the Education Act 1996, which makes it an offence for a parent not to ensure that a child of compulsory school age attends school regularly. She submitted, however, that other conduct described as abuse of minors in AW4 raised complaints relating to the family's living arrangements and to the applicant's and Ms Erdelyi's parenting abilities. These elements lacked the ingredients of a criminal offence.
- Ms Collins submitted that the central element of the criminal conduct alleged in AW4 was teaching children the morals and values of the Roma community that were regarded as "wrong" by the Hungarian criminal justice authorities for discriminatory or at least subjective reasons. She submitted that the applicant's prosecution was the product of a discriminatory approach to the treatment of the Roma community in Hungary.
- In support of the submission that the convictions for abuse of minors were discriminatory, Ms Collins referred to passages in the Pápa judgment which:
i. Mention evidence before the District Court of Pápa to the effect that the problems of Szimonetta and Bernadett Berki could be traced to their "sociocultural background";
ii. Refer to the applicant's lack of "respecting the societal cohabitation norms" and his "work avoiding lifestyle" as causes of his children's problems; and
iii. Refer to the applicant's failure to establish a daily routine for his children; his failure to teach his children to respect others or engage in law-abiding behaviour; and his failure to instil a sense of responsibility in his children.
- On the basis of these aspects of the Pápa judgment, Ms Collins submitted that the finding of the District Court of Pápa that the applicant's behaviour endangered "the physical, intellectual or moral development" of his children was moralistic and had racial undertones. She submitted that the language of the Pápa judgment reflected systematic discrimination against the Roma community and that the judgment criminalised conduct linked to the applicant's Roma status which could not, and would not, be criminal under English law.
- Ms Burton submitted that AW4 contained a detailed description of the applicant's conduct over a prolonged period which gave rise to the offences in question. Particulars of the period of the offending, the location, the relevant conduct and the relevant legal provisions had been provided. Ms Burton submitted that the applicant can ascertain the offences that give rise to the request for his surrender under AW4. Accordingly, it was unarguably the case that the DJ was entitled to find that the conditions of section 2(2)(b) read with section 2(6)(b) had been met.
- Ms Burton submitted that the applicant's overall conduct plainly fell within section 1 of the 1933 Act. She submitted that the submissions made on behalf of the applicant relied on cherry-picking certain parts of the language of the Pápa judgment and failed to deal with the cumulative effect of the applicant's conduct over a prolonged period during which his children were ill-treated in a manner likely to expose them to physical and mental injury to health.
Discussion
- I shall deal first with dual criminality. Taken in isolation, the references in the Pápa judgment to matters such as "sociocultural background" and "societal norms" suggest racial bias. If breach of social, cultural or societal norms arguably formed any material part whatsoever of the reasons for the applicant's prosecution, I would grant leave to appeal.
- However, I agree with Ms Burton that the applicant has selected certain phrases from the Pápa judgment that do not reflect the overall reasoning of the District Court. By way of example, the reference to "sociocultural background" is part of a summary of the psychiatric evidence relating to Szimonetta Berki that was placed before the District Court. By contrast to selective phrases taken out of context, the overwhelming picture to emerge from the evidence before the DJ, and before me, is that the applicant deliberately mistreated his children. The nature and extent of that deliberate mistreatment would not be tolerated in English law.
- At paragraphs 192-193 of her judgment, the DJ held that the following conduct was clearly set out in AW4:
i. Both the applicant and Ms Erdelyi failed to ensure that their children went to school;
ii. They failed to provide adequate accommodation for their children;
iii. They failed to ensure that Bernadett Berki received medical treatment;
iv. They failed to co-operate with social services when their daughters were made the subject of the District Guardian's protection;
v. They failed to co-operate with the authorities after their children committed criminal offences; and
vi. They procured the commission of a shop theft by Nikoletta Berki.
- As regards the failure to ensure the children's attendance at school, the Pápa judgment lists in great detail the number of hours in each school year that the children were absent without justification. By way of example, Nikoletta Berki was absent for 308 hours in 2008/2009. Bernadett Berki was absent for 643 hours in 2012/2013. Szimonetta Berki was absent for over 235 hours in 2014/2015.
- As Ms Collins was bound to accept, the applicant's failure to secure his children's attendance at school could be charged in England as an offence under section 444(1) of the Education Act 1996. It is irrelevant that the Hungarian authorities treated this conduct as part of an offence of abuse of a minor: it is the conduct and not the description of the offence that counts (Norris, paras 65 and 91; Lakatos, para 42).
- As regards the other conduct described in paragraphs 192-193 of the DJ's judgment, the applicant's submissions fail to raise any reasonably arguable error of approach by the DJ. The squalid conditions in which the children lived could amount to a failure to provide adequate lodging under section 2(a) of the 1933 Act. There was evidence that the applicant failed to ensure that Bernadett Berki received adequate medical treatment which could amount in English law to a failure to provide adequate medical aid under section 2(a) of the 1933 Act. I see no grounds for concluding that the failure to co-operate with social services could not be the subject of criminal proceedings for child cruelty in England.
- As Ms Burton emphasised, the applicant was often neutral or supportive of criminal behaviour committed by the children. When "misdemeanour procedures" were instigated against the children, the applicant did not co-operate with the authorities. On the evidence before me and the submissions made to me, I am not persuaded that his overall conduct would not engage the English criminal law.
- AW4 makes plain that the relevant child protection authorities warned the applicant of the consequences of his conduct but that, despite the warning, he continued to act in a way that endangered the children. The DJ was therefore correct to conclude that the applicant's conduct was wilful for the purpose of establishing the mens rea applicable to child cruelty. She was correct to conclude that the evidence before her impelled such an inference.
- Ms Collins is correct to say that English child protection authorities might resort to the Family Court rather than instigate criminal proceedings. It does not follow that the English criminal law could not, or would not, be invoked. Nor does the decision by the Hungarian authorities to use the criminal law raise any arguable point under the 2003 Act.
- In short, there was ample evidence on which the DJ was able to conclude that both the actus reus and the mens rea of the English offence of child cruelty could be proved from the facts alleged in the warrant. There is no arguable error in relation to the question of dual criminality.
- As for the information in the warrant, I agree with the DJ that AW4 contains a detailed and particularised account of the offending that gave rise to the warrant. The conditions of section 2 of the Act are plainly met.
- Ground 1 is not reasonably arguable and so it fails.
Ground 2: Extraneous considerations
Statutory provisions
- Section 13 of the Act bars a person's extradition if it appears that:
"(a) the …warrant issued in respect of him (though purporting to be issued on account of the extradition offence) is in fact issued for the purpose of prosecuting or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinions, or
(b) if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions".
The applicant's submissions
- Ms Collins submitted that the DJ ought to have concluded that the applicant's prosecution and convictions were tainted by extraneous considerations in so far as the applicant had been prosecuted, convicted and sentenced to prison on account of his race. The gist of her submissions was that the DJ had given too little weight to Dr Bieber's evidence and had wrongly disregarded Professor Stewart's evidence of discrimination against the Roma community in the Hungarian criminal justice system. Ms Collins submitted that the expert evidence was consistent with the publicly available information about the systematic discrimination against the Roma community. On the basis of all the evidence, it was reasonably arguable that the test for extraneous considerations was met.
Discussion
- In Hilali v Spain [2006] EWHC 1239 (Admin), the Divisional Court considered the conditions that need to be met in order to prove extraneous considerations under section 13 of the Act. The court held:
"62. The burden is on the appellant to show a causal link between the issue of the warrant, his detention, prosecution, punishment or the prejudice which he asserts he will suffer and the fact of his race or his religion. He does not have to prove on the balance of probabilities that the events described in s.13 (b) will take place, but he must show that there is a 'reasonable chance' or 'reasonable grounds for thinking' or a 'serious possibility' that such events will occur (Fernandez v The Government of Singapore [1971] 1 WLR 987)" (emphasis added).
- Ms Collins does not submit that the DJ misdirected herself in law or misunderstood the test in Hilali. The submissions made under Ground 2 amount only to a challenge to the weight that the DJ afforded to the evidence of the two expert witnesses.
- A party seeking leave to appeal in relation to the weight afforded to elements of the evidence needs to demonstrate that it is reasonably arguable that "crucial factors ought to have been weighed so significantly differently as to make the decision wrong" (Love, para 26). That threshold applies to expert evidence as much as it applies to other kinds of evidence; it is not met in the present case.
- Professor Stewart's evidence paints a shocking picture of entrenched discrimination against the Roma community in Hungary in multiple areas of life. However, the DJ did not have a free hand to discharge the applicant. Her duty under section 13 of the Act was to consider whether there was a causal link between (on the one hand) the Hungarian criminal proceedings and (on the other hand) the applicant's Roma status. Evidence of general discrimination against Roma people within Hungarian society – however serious – is not sufficient to show that the conditions of section 13 are met.
- Professor Stewart's report is lengthy and discursive. It does not concentrate on evidence that would have assisted the DJ to reach conclusions on the issues that arise under section 13.
- The DJ criticised Professor Stewart for making unwarranted assumptions, noting at paragraph 222 of her judgment:
"Professor Stewart cited an example of [the applicant's] fear of prejudice or [the applicant's] fear of his child being removed from him by saying that [the applicant] was scared to take his daughter into a separate room as it would have been the last time that he would see his daughter. There is no such evidence from [the applicant] either in his proof or while giving evidence in court. This is yet another example of the professor making an assumption which was unwarranted" (emphasis added).
There is no explanation as to why Professor Stewart chose to engage in speculation about the applicant's state of mind.
- Professor Stewart accepted in cross-examination that he had assumed, without clear evidence, that the children's social workers had arranged for the parents to be the subject of prison sentences after the social workers' efforts to take the children away from their parents had failed. His opinion appears to have been that the parents' prison sentences solved a problem for the social workers because the imprisonment of the parents would ensure that the children went into State care. I agree with the DJ that there is no basis in the evidence for Professor Stewart's opinion, which is no more than speculation.
- Ms Collins submitted that the DJ was wrong to reject the entirety of Professor Stewart's evidence when the nature and scope of his speculation was limited rather than pervasive. The problem with that submission is that Professor Stewart's speculations – whether about the applicant being in a state of fear or the supposed motivations of the social workers – cast light on his understanding of his duty as an expert. His duty was to provide independent assistance to the DJ by way of objective, unbiased opinion on matters within his expertise. Speculation is inconsistent with a proper understanding of that duty and undermines his reliability as an expert witness. The DJ was entitled to regard him as an unreliable witness and to reject his evidence.
- Dr Bieber was asked to give her opinion in her written report as to whether there were any specific concerns relating to the applicant that would or might affect his fundamental rights, following extradition, beyond the general material regarding the rule of law in Hungary. In addressing this topic, Dr Bieber set out some general concerns that go far beyond the Roma community but said that "[b]eyond these general concerns, the expert is not aware of specific concerns pertaining particularly to the requested persons regarding the deterioration of the rule of law pertaining to the judiciary in Hungary." Her opinion does not assist the applicant.
- In assessing the impact of the applicant's Roma ethnicity, Dr Bieber referred extensively to a 2014 report by the HHC entitled "Last Among Equals." She relied on the report to reach her opinion that statistical data indicate that the right to a fair trial might be infringed due to the Roma ethnicity of an alleged offender. As Ms Burton emphasised, the report was nine years old at the time of the DJ's judgment. It cannot be described as up to date and so the DJ was entitled to give little weight to this part of Dr Bieber's evidence.
- As set out in detail in the DJ's judgment, Dr Bieber accepted in cross-examination that steps can be taken during the trial process to ensure that a Roma defendant who may otherwise have been prejudiced can have a fair trial.
- These various aspects of Dr Bieber's evidence do nothing to advance the applicant's case. There is nothing else in Dr Bieber's written or oral evidence that has the probative value for which Ms Collins contended.
- I agree with Ms Burton that the DJ was unarguably entitled to conclude that the applicant had not met his burden of proving a causal link between general discrimination in society against the Roma community and prejudice to the applicant in criminal proceedings because of his Roma ethnicity. The DJ was unarguably entitled to conclude that nothing in section 13 was a bar to extradition in the applicant's case. This ground of appeal is not arguable and falls to be refused.
Ground 3: Prison conditions
Legal framework
- Ground 3 concerns whether the applicant is at risk of being subjected to prison conditions in Hungary that breach article 3 of the Convention. On well-established principle, the applicant must demonstrate substantial grounds for believing that there is a real risk that he will suffer treatment in Hungary that violates article 3.
- The risk of treatment in breach of article 3 may be dispelled, if necessary, by an appropriate assurance from a foreign State. As summarised by Julian Knowles J in Lakatos, para 74:
"In the case of a request by a judicial authority of a member state of the Council of Europe which is also an EU Member state, there is a strong, but rebuttable, presumption that it will comply with its obligations under Article 3. If cogent evidence is adduced that there is a real risk that it will not, ordinarily in the context of something approaching an international consensus to that effect, extradition must be refused unless the requesting judicial authority can give, and if necessary secure from the relevant authority of its state, an assurance sufficient to dispel that real risk: see Krolik v Polish Judicial Authority [2012] EWHC 2357 (Admin), [4]-[7]".
- It was not in dispute that an effective system in the foreign State for monitoring the implementation of an assurance may bring confidence that the assurance is adequate to dispel the risk of a breach of article 3.
The applicant's submissions
- Ms Collins submitted that the DJ was arguably wrong to conclude that the United Kingdom can rely on the assurance provided by the Hungarian authorities in order to avoid a breach of article 3. She submitted that the evidence before the DJ, or at the very least the fresh evidence before me, demonstrated that the United Kingdom cannot place trust in the Hungarian authorities either to honour the assurance about personal space in prison or to treat the applicant compatibly with his article 3 rights in general.
- As regards personal space, Ms Collins submitted that the General Ombudsman could not protect the applicant from breach of the assurance because the General Ombudsman is ineffective. In support of this submission, she emphasised that, in June 2021, the Sub-Committee on Accreditation of the Global Alliance of NHRIs recommended that the Ombudsman be downgraded from an A to a B status as an NHRI and that, in March 2022, the downgrading had become final. Ms Collins directed me to evidence that the revised status means that the General Ombudsman is assessed as showing only partial compliance with the Paris Principles. The General Ombudsman's downgrading reflects a lack of functional independence. In light of the downgrading, Ms Collins submitted that the General Ombudsman was no longer capable of providing an adequate system for monitoring the assurance about personal space.
- Dealing with the treatment of prisoners more generally, Ms Collins submitted that the fresh documents, particularly from the CPT and the HHC, amount, at least arguably, to cogent evidence that Hungary would not comply with its article 3 obligations in matters that go beyond personal space. She submitted that the time had now come for this court to conclude that the strong presumption that Hungary will comply with its article 3 obligations had been rebutted.
- In making this general submission about prison conditions, Ms Collins relied on the perfected grounds of appeal, which set out the evidence about prison conditions in Hungary in very general terms. In her oral submissions, she directed my attention to Items 3 to 5 of the fresh evidence (as enumerated above).
- Ms Collins referred to the CPT's account of allegations of physical ill-treatment by staff against prisoners in Tiszalök National Prison (described in Item 3 of the fresh evidence). She submitted that the Hungarian Government Response to the allegations had been inadequate (Item 3). She contended that efforts being made by the Government had failed to deal with the problem.
- Ms Collins submitted that the fresh evidence from the HHC (Item 4 of the fresh evidence) demonstrated systemic problems in Hungarian prisons. The HHC's May 2024 report demonstrated that notorious prison overcrowding continued.
- Ms Collins relied on Mr O'Leary's statement (Item 5 of the fresh evidence). Mr O'Leary is a former client of the applicant's solicitors. His statement says that he had to wait for five days from his arrival in a Hungarian prison before he received his prescription medication. He says that, even when he did receive it, he did not know whether he was given the correct dosage which (he asserts) led to serious danger to his health. At one stage, he was admitted to a prison hospital where he says that he was assaulted by a prison guard. When visiting hospitals outside prison and when making court appearances, he was forced to wear leg shackles. Ms Collins submitted that Mr O'Leary's evidence is relevant to the present case because the applicant has mental health problems which, like Mr O'Leary's physical health problems, would require medical treatment.
Discussion
- In order to avoid a breach of article 3, the United Kingdom authorities have in the present case sought and obtained the assurance on personal space that I have set out above. The assurance focuses on the provision of at least three square metres of personal space in prison. The need for such an assurance is set out in Zabolotnyi v Mateszalka District Court, Hungary [2021] UKSC 14, [2021] 1 WLR 2569, per Lord Lloyd-Jones JSC:
"6. In March 2015 in Varga v Hungary (2015) 61 EHRR 30 the European Court of Human Rights ('the ECtHR') upheld a number of complaints of inhuman or degrading treatment contrary to article 3 ECHR arising from prison conditions in Hungary, in particular relating to the lack of personal space in cells. The court considered that there existed a recurrent structural problem throughout detention facilities in Hungary. In view of the persistent nature of the problem, the large number of people it had affected and the urgent need to grant speedy redress at a domestic level, the court considered it appropriate to apply its pilot judgment procedure.
7. In other decisions the ECtHR has addressed the minimum requirement of personal space afforded to prisoners. In Ananyev v Russia (2012) 55 EHRR 18 it held that the relevant factors in assessing whether or not there had been a violation of article 3 on account of lack of personal space were that each detainee must have an individual sleeping place, at least three square metres of floor space and the overall surface of the cell must be enough to allow the detainees to move freely between the furniture. The absence of one of these elements created a strong presumption that the conditions amounted to degrading treatment in breach of article 3. Similarly, in October 2016, the court held in Muršic v Croatia (2016) 65 EHRR 1 that while it was not possible to specify the number of square metres that should be allocated to a prisoner in order to comply with article 3, because other relevant factors relating to the overall conditions of detention played an important part, the minimum standard was three square metres of floor space per detainee in multi-occupancy accommodation. If the detainee's personal space fell below this standard, there was a weighty but not irrebuttable presumption of a violation of article 3.
8. In order to maintain extradition in these circumstances where the presumption of compliance of prison conditions with article 3 ECHR may have been lost, EU member states have issued assurances to the executing judicial authorities guaranteeing compliance with article 3 in the case of the requested person, in accordance with the approach explained by the Court of Justice of the European Union ("CJEU") in Criminal proceedings against Aranyosi (Joined Cases C-404/15 and C-659/15PPU) [2016] QB 921.
9. Following the judgment in Varga v Hungary, on 1 June 2015 the Hungarian Ministry of Justice gave a general assurance in relation to all individuals extradited from the United Kingdom that they would be guaranteed three square metres of personal space and that they would be detained in conditions which complied with article 3. In GS v Central District of Pest, Hungary [2016] 4 WLR 33 the Divisional Court (Burnett LJ and Ouseley J) accepted that this assurance was a solemn diplomatic undertaking by which the Hungarian authorities considered themselves bound and that the real risks found by the ECtHR could, as a result, be allayed. The court considered that the presumption that the assurance would be honoured had not been displaced and that there was no basis for concluding that the assurance would not be honoured.
10. The Hungarian government subsequently pursued a programme of prison building and refurbishment. In May 2017 the Hungarian Ministry of Justice stated that assurances were no longer required in respect of extradition because of the improvements which had been made to prison accommodation. However, in April 2018 it acknowledged that one of the applicants in Varga had been detained in a cell with eight people with net space for each prisoner of 2.8 square metres. This led the Hungarian Ministry of Justice to acknowledge that specific assurances were required once again.
11. In Fuzesi v Budapest-Capital Regional Court, Hungary [2018] EWHC 1885 (Admin); [2018] ACD 99 the Divisional Court (Singh LJ and Carr J) observed that there could be no question that there was potent evidence before the court of general shortcomings in the Hungarian prison estate, which were not denied. That was why, although Hungary had at one time discontinued the practice of giving assurances, it was accepted that such assurances should be given for the time being. However, the court (at para 37) considered it crucial that there was no evidence that any assurance to the United Kingdom in respect of an individual had been breached and it held, on the basis of the renewed assurances in the same terms as the assurance considered in GS, that extradition to Hungary could continue."
- The background in Zabolotnyi is not in dispute. Ms Burton accepted that an assurance in respect of floorspace in prison is required for extradition to Hungary to be compatible with article 3 of the Convention. The key question is whether the assurance is adequate to dispel the risk of a breach of article 3. The effectiveness of the General Ombudsman, as the authority responsible for monitoring a floorspace assurance, is relevant to that question.
- The effectiveness of the General Ombudsman was considered by Fordham J in Nemeth v Hungarian Judicial Authorities [2022] EWHC 1024 (Admin). He considered what was then the recommendation that the General Ombudsman should be downgraded. He concluded:
"14… [There is] a recommendation of a downgrading of the General Ombudsman to 'partial compliance' with 'the Paris principles', giving 12 months to June 2022 for the General Ombudsman to 'provide the documentary evidence necessary to establish continued conformity with the Paris principles (§30). I was shown no evidence or material that suggests a shortcoming relating to the function of monitoring floorspace assurances given in extradition cases.
… [S]o far as concerns the materials relating to discriminatory ill-treatment of individuals of Roma ethnic origin, I was shown no material that supports the conclusion – even arguably – that there is a real risk of breach of Article 3 standards in relation to prison conditions, or a real risk of the General Ombudsman failing to monitor the minimum personal space assurances, in the case of a requested person who is of Roma ethnic origin, arising out of this feature of the case" (emphasis added).
- In Nemeth, Fordham J refused leave to appeal. The adequacy of an assurance by the Hungarian authorities was considered at a substantive appeal by Julian Knowles J in Lakatos. Julian Knowles J noted (at paragraph 78) the numerous earlier judgments of this court concerning Hungary in which arguments about article 3 had received comprehensive consideration and failed. He cited and agreed with Fordham J in Nemeth (paragraphs 82 and 83). He did not accept that the evidence demonstrated any specific risk to the appellant based on her Roma ethnicity or her sexual orientation, which were the two matters relied on (paragraph 82). There was no suggestion in Lakatos that the General Ombudsman was an inadequate monitoring mechanism. On the evidence available to the DJ, there is no reason for me to take a different approach or to reach a different view to Nemeth and Lakatos.
- Ms Collins emphasised the fresh evidence and submitted that the situation has changed since Lakatos (which was heard in July last year). I accept that the human rights situation in Hungary, as in any country, is not set in stone and that previous judgments of this court may become outdated in light of developments. I accept that on factual (as opposed to legal) questions, I am not bound to reach the same conclusions as were reached in other judgments.
- Nevertheless, the General Ombudsman was downgraded in 2022. The DJ was aware of the downgrading because Dr Bieber was asked about it. Dr Bieber holds herself out as an expert in detention conditions, access to justice in criminal cases, ill-treatment by law enforcement officials, and the rule of law in Hungary. She says in her written report that she has monitored numerous penitentiary institutions and has supervised legal advice for more than 1,000 inmates. She had both the experience and the opportunity to give her opinion to the DJ on the effect of the downgrading from A to B status. There are no grounds for treating the Ombudsman's revised status as fresh evidence.
- Some of the content of the HHC documents relates to the performance of the General Ombudsman in the time that has passed since the DJ's judgment. I was not, however, provided with any focused submission that would arguably suggest that the General Ombudsman would not monitor compliance with the assurance.
- The CPT Report (at page 13) gives the reasons for the downgrading as including "a lack of effort to address all human rights issues and concerns with respect to the selection and appointment process of the [General Ombudsman], and to co-operate with civil society." As in Nemeth, I was not shown any evidence or material that suggests a shortcoming relating to the function of monitoring floorspace assurances given in extradition cases.
- Mr O'Leary was extradited to Hungary in 2022 after an unsuccessful appeal against an order for extradition (see O'Leary v Hungary [2022] EWHC 3585 (Admin)). He challenged his extradition on the basis that it would be incompatible with article 3 of the Convention and unjust and oppressive as a result of his health contrary to section 25 of the 2003 Act. Those arguments failed.
- As in the present case, Mr O'Leary was given an assurance of three square metres of personal space in prison. As Ms Burton submitted, his witness statement does not assert that this guarantee was not complied with. While Mr O'Leary describes being detained in cramped conditions, he does not give any indication of the amount of personal space afforded to him during detention. The description of his conditions of detention in respect of space is not inconsistent with him being provided with three square metres which is a relatively small space by any reckoning. I accept Ms Burton's submission that his witness statement is not evidence that demonstrates a breach of the assurance provided to him. The statement is therefore not capable of undermining the assurance provided in this case.
- Mr O'Leary was not given an assurance in relation to his healthcare. As Ms Burton submitted, he received his medication. He had access to a prison doctor. He was transferred to the prison hospital and to a public hospital when necessary. His condition was, therefore, managed and treated while he was incarcerated. While his evidence suggests that there were delays and some shortfalls in the care provided, it does not amount to evidence of a systemic inability to provide appropriate medical care within the prison environment.
- Mr O'Leary makes assertions about the impact of his conditions of imprisonment on his health, having been assessed following his return to this jurisdiction. However, his claims have not been substantiated with supporting medical evidence. His evidence is therefore far from capable of giving rise to cogent evidence that the applicant in the present case would not receive appropriate treatment for his mental and physical health upon surrender.
- In relation to other aspects of Mr O'Leary's description of his time in prison, I agree with Ms Burton that his evidence is not capable, either alone or in combination with the other material before me, of rebutting the presumption of compliance with article 3. As Ms Burton emphasised, Mr O'Leary was able to make various requests to improve his conditions, which were acceded to. His claim that he was attacked by a prison guard was taken seriously, resulting in the prosecution and conviction of the perpetrator, which is consistent with other evidence that such violence is not tolerated.
- In short, the evidence in Mr O'Leary's witness statement (even taken at its highest) is not capable of undermining the reliability of the assurance about personal space given to the applicant. Nor is it capable of rebutting the presumption of compliance with article 3 in relation to prison conditions other than personal space.
- In addition to the evidence in his witness statement, Ms Collins told me on instructions that Mr O'Leary is pursuing a complaint against the authorities in Hungary. I was provided with no details of the complaint or how it is being treated. The mere fact that Mr O'Leary is making a complaint does not advance the applicant's case.
- Overall, as attractively as Ms Collins' submissions were made, they amount to no more than a disagreement with the findings of the DJ. No error of law or of approach by the DJ has been identified. Contrary to the approach in Love, this ground of appeal essentially asks the court to start afresh rather than to carry out an appellate function.
- Ground 3 is not reasonably arguable and so it fails.
Ground 4: Article 8 of the Convention
- Ms Collins submitted that Dr Farnham's report (Item 1 of the fresh evidence) and the applicant's medical records (Item 2 of the fresh evidence) weigh heavily against extradition. She referred in addition to: (i) the adverse effect that the applicant's extradition would have on Ms Erdelyi and the children; (ii) the age of the extradition offences; (iii) the fact that the seriousness of the extradition offences was not at the top end of the scale of criminality; and (iv) the lengthy time that the applicant has now spent on remand in custody which means that he has not gone unpunished. She submitted that, irrespective of the situation as at the date of the extradition hearing, the combination of these various factors arguably caused the balance to fall in favour of the applicant's discharge. Extradition would at least arguably amount to a disproportionate interference with his right to respect for private and family life under article 8 of the Convention.
- Despite Dr Farnham's caution as to the applicant's diagnosis and prognosis, I shall assume in the applicant's favour that he suffers from a psychiatric condition that would require him to continue with anti-depressant medication in Hungary. I accept too the parties' agreed position that the proper consideration of Ground 4 will now need to take into account that the applicant's extradition is no longer sought under two out of four of the warrants. It would be unfair to hand down judgment on Ground 4 without hearing further submissions from the parties on the effect of the section 42 order on the proportionality of extradition under article 8.
- For these reasons, I shall hear counsel on Ground 4 at a further hearing. While I was aware that a section 42 application had been made, I was not aware that it had been decided. I will hear counsel about how and why I was not promptly informed of the section 42 order.
Conclusion
- Accordingly:
i. As regards Grounds 1-3, I refuse to admit the fresh evidence which is either not genuinely fresh or is not decisive in relation to Grounds 1-3.
ii. I refuse leave to appeal on Grounds 1-3.
iii. I adjourn the consideration of Ground 4 and direct that a further hearing for submissions on Ground 4 is listed speedily.
iv. I adjourn the consideration of the admissibility of the fresh evidence, in so far as it may relate to Ground 4, to the further hearing.
