FORDHAM J
This Judgment will be handed down remotely at 10am on 6.3.25 by circulation to the parties or their representatives by email and by release to the National Archives.
FORDHAM J:
Introduction
- The Appellant is aged 34 and is wanted for extradition to Hungary. That is in conjunction with a conviction Extradition Arrest Warrant (AW2) issued on 18.10.22 on which he was arrested on 9.2.23. He was released on bail on 12.4.23 and has been on bail with tagged-curfew (11pm to 4am) since then, a period of 1y 8m. AW2 relates to a conviction and 5-year prison sentence for an offence of extortion (blackmail) committed by the Appellant in Hungary between November 2012 and November 2013 aged 21/22. He was convicted in his absence on 11.7.16 and, after an appeal, the conviction and 5-year sentence became final on 28.11.17. There had been a previous conviction Extradition Arrest Warrant (AW1). It related to an offence committed in Hungary on 1.10.13, of preparing for robbery. It led to an unserved 6 month custodial sentence, which became final on 2.10.16. AW1 was issued on 31.3.22 and the Appellant was arrested on it on 10.10.22. AW1 was withdrawn, and the Appellant was formally discharged on it in July 2023. Discharge on AW1 would have followed from the qualifying remand (10.1.22 to 12.4.23) sufficing to extinguish the sentence (6 months).
- The Appellant's extradition on AW2 was ordered by SDJ Goldspring (the Judge) on 20.9.23 for reasons set out in the Judge's 73-paragraph judgment. The Judge called the Appellant the "RP" (requested person) and the Respondent the "IJA" (issuing judicial authority). The oral hearing before the Judge had taken place on 1.8.23. The Appellant had provided a proof of evidence (1.8.23), gave oral evidence and was cross-examined. Key points arising from that cross-examination were recorded in the judgment. The Appellant's partner of 6 years (the partner), who is now aged 28, had provided a witness statement (28.7.23) with supporting documents. She attended the hearing before the Judge so she could be cross-examined. But her written evidence was accepted and the IJA's advocate did not seek to cross-examine her. The Appellant has permission to appeal on all three of his grounds of appeal, granted at an oral hearing on 24.9.24. They relate to s.20 of the Extradition Act 2003 (retrial rights); s.14 (injustice or oppression by reason of the passage of time); and Article 8 (disproportionate interference with private or family life).
Retaking the Decisions
- There is a fresh evidence application, to adduce the partner's updating witness statement (27.1.25) and supporting documents. There is a significant change of circumstances. The couple are expecting the birth of their first child, a baby girl with a due date of 18.3.25. It is agreed that, in light of that change in circumstances, the High Court should "retake" the decision so far as Article 8 and s.14 (oppression) are concerned. Given the overlap between injustice and oppression, and where the hearing before the Judge was 18m ago, I have been persuaded by Ms Westcott to retake the s.14 (injustice) decision. Given that s.20 (retrial rights) involves objective consideration of official documents, and where the Judge's decision is postdated by two Supreme Court decisions, I am going to retake that decision as well. Retaking the decisions is a fresh look but not a clean sheet of paper. I decide correctness for myself, on all the available material. But I stand on the "platform" of the Judge's factual findings and description of factual evidence, except insofar as these have been undermined through submissions or overtaken by events.
The Index Offence
- AW2 includes a detailed description of the offence of extortion (blackmail) committed between November 2012 and November 2013. It includes the following. The victim was Mr Ligeti, who regularly gave agricultural work to the Appellant and other family members. As a result, he knew the Appellant (aged 21) and his sister T (aged 13). The Appellant decided to take advantage of Ligeti's acquaintance with T and obtain money through threats. He and accomplices would call Ligeti and threaten to report him for a sexual relationship with a minor, as well as threatening him with beatings if he did not pay. Identified sums of money were extorted starting with HUF 30,000 in December 2012 and, by November 2013 totalling HUF 500,000 (an equivalent of £3,000).
Retrial
- The Appellant denies the index offence. He has hired a lawyer in Hungary and has requested a retrial. On 24.2.23 the Prosecutor General's Office sent a notified motion for retrial. AW2 records that the Appellant "did not appear in person at the trial resulting in the decision". It states (Box (d) point 3.4, emphasis added):
the person was not personally served with the decision, but - the person will be personally served with this decision without delay after the surrender; and - when served with the decision, the person will be expressly informed of his or her right to a retrial or appeal, in which he or she has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed; and - the person will be informed of the timeframe within which he or she has to request a retrial or appeal, which will be 30 days.
Unfortunately, the reference to "30 days" clear from the Hungarian version of AW2 had been mistranslated as "
days" in the English translation of AW2. Someone, when translating, had blocked and pasted the standard wording including the gap which an IJA has to fill out. The inclusion of "
days" led to submissions before the Judge, and in the grounds of appeal, that there was a "concerning omission" in Box (d) point 3.4. The IJA's failure to insert a specified number of days undermined the ability to rely on this communication of a right of retrial. Ms Westcott interrogated the Hungarian original of AW2 in the run up to the hearing of this appeal. She candidly drew attention to what she had found. She accepts that the IJA typed in "30 days" as "the timeframe" post-surrender for the Appellant to invoke the retrial right being described. That means "concerning omission" has become "reassuring insertion". There is no undermining, but a reinforcement, of the ability to rely on this communication of a right of retrial.
Deliberate Absence
- Where an extradition judge reaches the question in s.20(5), they must order the discharge of the requested person (s.20(7)) unless satisfied that the RP "would be entitled to a retrial or (on appeal) to a review amounting to a retrial". It was common ground that this retrial question was the proper focus of the s.20 ground of appeal. The Appellant was convicted in his absence (s.20(1)). Both Counsel submitted that the Judge could be taken impliedly to have found deliberate absence (s.20(3)). The Appellant's position was that deliberate absence was an unjustifiable finding. The Respondent chose not to contest that. It was no part of the Respondent's defence of this appeal that deliberate absence was justifiably found, nor that this Court should make its own finding of deliberate absence. I am not making, or upholding, any finding that the Appellant deliberately absented himself from his trial.
The Section 20 Appeal
- Ms Westcott submits that the entry seen at AW2 Box (d) point 3.4 is insufficient to satisfy the s.20(5) requirement ("the person would be entitled to a retrial"), to the criminal standard (s.206). Her argument has two stages. It runs as follows. At stage 1, there is a lack of clarity in AW2 itself. The lack of clarity is introduced by the fact that Box (d) points 3.1b and 4 record that:
3.1b. The person was not summoned in person but by other means actually received official information of the scheduled date and place of the trial which resulted in the decision, in such a manner that it was unequivocally established that he or she was aware of the scheduled trial, and was informed that a decision may be handed down if he or she does not appear for the trial;
4
. information about how the relevant condition has been met: Richard Balasz, approaching the end of the first instance proceedings before the Baja District Court, left for an unknown location. He was summoned by means of an announcement. His defence was provided by a legal representative appointed by the state.
This places the contents of point 3.4 in doubt. That qualifies the default position that Box (d) point 3.4 of itself obliges an extraditing court to conclude that an RP would be entitled to a retrial: Merticariu v Romania [2024] UKSC 10 [2024] 1 WLR 1506 at §26, approving Cretu v Romania [2016] EWHC 353 (Admin) [2016] 1 WLR 3344 at §41. It makes AW2 "confusing", because multiple boxes have been ticked "when the pro forma contemplates a series of four alternatives". True, that structural-confusion argument was rejected in Cretu at §38. But that passage from Cretu is wrong. It was not approved in Merticariu or its sibling Bertino v Italy [2024] UKSC 9 [2024] 1 WLR 1483; while other Cretu passages were referenced and approved. That absence of approval puts Cretu §38 in doubt. In any event, the IJA has here provided "further information" (FI) which can and should be taken into account: see Merticariu §27, approving Cretu §37. The further information itself leaves the position in doubt. That is stage 1.
- At stage 2, the further materials emanating from the IJA leave the position on retrial rights in doubt and incapable of satisfying the criminal standard. Here is why. There is a prosecutor's motion (24.2.23) which includes this ("Be" is the Civil Code):
I am sending the notified motion for retrial
I propose that the tribunal
order a retrial and send the case to the first instance court that acted in the originally case for the purpose of the repeated procedure
Justification:
Due to his location was unknown the proceedings, both in the first and second instance was carried on in his absence
The motion for retrial is well-founded. The reason specified
there is room for a retrial if the main case was concluded in the absence of the accused, in which case pursuant to §637 paragraph (5) the retrial is mandatory if the defendant is available
According to Be §639(3), the reason-based renewal of the motions may be submitted by the defendant and the defence counsel within one month from the day on which they became aware of the entry into force of the final decision ending the main case.. [T]he date of becoming aware of the final decision ending the main case must be established. The final custodial sentence imposed on the accused in the main case has not yet been adopted in Hungary, so the detailed rules for the implementation of imprisonment
has not yet been accepted, so at the time of the submission of the motion for retrial, consequently, the Be §639
limitation period written in paragraph (3) has not passed. Since all the legal requirements are met
there is reason to order a new trial.
The CPS sent this prosecutor's motion to the IJA, asking:
[Q1] Please can you confirm that it [the document]is genuine? [Q2] The document indicates that Mr Balazs will have a retrial in relation to the offence referred to in [AW2]. In these circumstances, please can you indicate whether Mr Balazs's extradition is still sought on [AW2]? Or will a new AW be issued?
In response, the IJA's FI (20.4.23) says this:
The court confirms the prosecution's motion is genuine, which was based on the request for retrial submitted by the defence counsel of Richard Balazs. Based on the motion, the Kecskemet Regional Court is currently only examining the admissibility of retrial. The repeated proceedings can be continued, if Richard Balazs is available, that is, he can actually appear before the court. The condition for this is that the transfer takes place based on the effective arrest warrant. No new arrest warrant will be issued and the court continues to request the transfer of Richard Balazs based on the arrest warrant under case number 1.Szv.1677/2017.
These materials leave the position in doubt, because: (i) the position in the prosecutor's motion is the position only of the Hungarian prosecutor and not of the Hungarian court; (ii) the CPS question [Q2] presupposed that the Appellant would have a retrial, instead of asking whether he would; (iii) the fact that the regional court is "examining
admissibility" revealingly indicates that there are criteria to meet; (iv) those criteria could involve non-satisfaction of a limitation period (discussed in the prosecutor's motion); (v) alternatively, those criteria could involve something else (missed by the Hungarian prosecutor but needing to be addressed by the Hungarian court), such as jeopardy faced by the Appellant from the IJA's position on deliberate absence (AW2 Box (d) points 3.1b and 4) or from the appeal which led to the decision of 28.11.17, either of which could impede the retrial right. The criminal standard is not met. The Appellant must be discharged. That is the s.20 argument.
Discussion
- I am unable to accept these submissions. Retaking the decision, I agree with the Judge about the Appellant's s.20(5) post-surrender entitlement to retrial. I will start by assuming in the Appellant's favour that the structural-confusion argument was correct in Cretu and the ticking of point 3.1b as well as point 3.4 introduces uncertainty which justifies looking at other material. Even on that most favourable premise, the material from the IJA is nevertheless clear, as is the picture overall. There is in the Appellant's case a right of retrial. Retrial is "mandatory". The Appellant must be "available", which means "he can actually appear before the court". This is post-transfer. The "condition" is "that the transfer takes place". There is a period of "one month", but time has not started yet. This is the "30 days" expressly inserted within AW2 Box (d) point 3.4. These are the Appellant's rights. The request for retrial has already been made, but it remains "only" at the "admissibility" stage, in circumstances where the condition of transfer and physical presence awaits fulfilment, and the month (30 days) has not started. I am sure to the criminal standard that the materials are clear about an unimpeded post-surrender retrial right. It follows that the s.20 (retrial rights) point cannot succeed.
- Having assumed the structural-confusion point in the Appellant's favour, I return to it. In my judgment, it is not a well-founded point. The fact that "the pro forma contemplates a series of four alternatives" (Cretu §38) is something that arises under the pro forma, by reference to the underlying 2009 Framework Decision (Merticariu §21; now Trade and Cooperation Agreement Art 601(i)). Those governing provisions say that the "executing judicial authority may
refuse to execute" an Extradition Arrest Warrant "unless [it] states" (a) "or" (b) "or" (c) "or" (d)". These are framed as alternatives. That is because any one of them is sufficient. It is not because only one of them can be true. Ms Westcott, rightly, accepts that there could, in principle, be both Box (d) point 3.1b summons and nevertheless also point 3.4 retrial rights. That was what Burnett LJ was saying, 8 years ago, in Cretu at §38. Nothing in Merticariu or Bertino brings that into doubt. An IJA can tick all boxes which are "applicable". Point 3.4 is not inconsistent with point 3.1b. It has been filled out with the relevant "30 days" time frame. The Appellant needs to have been transferred, and needs to be in Hungary, so he can be present before the Hungarian court. The position is spelled out in point 3.4 and that, in my judgment, standing alone would have been sufficient. I would accept that the FI is available and can be considered. It would be a concern if it introduced a contradiction. But it does not. The position is clear, at Stage 1; and again and in any event at Stage 2.
Section 14 and Article 8
- Under s.14, a requested person's extradition is "barred by reason of the passage of time" if "it would be unjust or oppressive to extradite [them] by reason of the passage of time since [they are] alleged to have (a) committed the extradition offence (where [they are] accused of its commission), or (b) become unlawfully at large (where [they are] alleged to have been convicted of it)". This is a conviction case, and it is agreed that the s.14 passage of time starts from 28.11.17 when the Appellant is said to have become unlawfully at large. It is also a retrial-rights case, and the "safety net" of Article 8 allows consideration of the passage of time back to the date of the offending: Konecny v Czech Republic [2019] UKSC 8 [2019] 1 WLR 1586 at §§55, 57. Under s.21(2), the RP's discharge must be ordered if the extradition "would be incompatible with the Convention rights" (s.21(1)), which in this case involves asking whether (ECHR Article 8) extraditing the Appellant would be a disproportionate interference with the right of himself, the partner or their new baby to respect for their private and/or family life. Given the overlap of relevant factors between s.14 and Art 8, both Ms Westcott and Ms Hill addressed them together and invited me to do the same, examining each key theme to inform conclusions on (i) s.14 injustice (ii) s.14 oppression and (iii) Art 8 proportionality. I agree with that approach and will adopt it. I do so keeping in mind the concepts of "injustice", "oppression" and "proportionality" addressed in the key authorities cited by the Judge. A helpful overview is Grange and Niblock, Extradition Law: A Practitioner's Guide (LAG, 3rd ed) at §§5.37 to 5.49 (s.14) and §§6.44 to 6.54 (Art 8). I will deal with each key feature of the case in turn. I do not repeat points already made, for example about the 1y 8m on tagged-curfew and about the index offence. I have considered all the circumstances, including interrelationships and cumulative effects.
Non-Fugitivity
- The "test for fugitive status" is "subjective" and asks whether the requested person knowingly placed themselves beyond the reach of a legal process: see eg. De Zorzi v France [2019] EWHC 2062 (Admin) [2019] 1 WLR 6249 at §48. It precludes invocation of s.14 and must be established to the criminal standard (De Zorzi §46vii). It is common ground that the Judge made no finding that the Appellant left Hungary in 2016 as a fugitive. It is no part of the Respondent's defence of this appeal that I should make a finding of fugitivity. The absence of a fugitivity finding means reliance can be placed on s.14 (injustice) and s.14 (oppression). It is also significant in Article 8 terms, by contrast with the presence of a fugitivity finding, for well-established reasons. It tends to reduce the weight of the considerations in favour of extradition, including ideas about safe havens and perceived safe havens. It also tends to increase the weight of the considerations against extradition.
Knowledge of the Ligeti Legal Process
- The Appellant did not leave Hungary in 2016 knowingly to place himself beyond a legal process. However, I can be quite sure that he left in 2016, and arrived in the UK in September 2016, knowing that there was a legal process being pursued in Hungary in relation to the extortion (blackmail) matter regarding Mr Ligeti. The Appellant's proof of evidence (adopted by him at the hearing before the Judge) included this:
In respect of 166/2017 the Warrant states that I am wanted to serve a 5 year sentence as a result of a Judgment of the Baja District Court dated 11 July 2016, made final and binding on 28 November 2017 by a decision of the Kecskemet Regional Court, for an offence of blackmail/ extortion. I was never made aware of the court hearings in the 166/2017 matter and I was found guilty in my absence. When I left Hungary in 2016 I had not been given a hearing date for this matter, although I was aware that there was going to be a court case about this matter at some time in the future.
The proof of evidence also said:
In January 2014 I returned to Hungary and I was questioned by the police about a number of crimes which the police tried to blame me for, including a bank robbery for which I took a lie detector test which showed I was not involved. This humiliated the police as they had got the wrong person. I then served time in prison for other matters, from January 2014 to May 2015, which I accept that I had committed. When I was released from prison I was not given any date to attend court for the case involving Mr Ligeti. I then left Hungary sometime in 2016 and travelled first to Switzerland and then to the UK, where I arrived in September 2016. When I left Hungary, I was not aware about any court proceedings that had commenced in the "Ligeti case" and I travelled openly on my Hungarian ID Card.
- The Judge carefully recorded what the Respondent's advocate (Ms Beaven) elicited in cross-examination. This is verbatim from the Judge's judgment:
He was cross examined and said the following :- I remember things about it but obviously not very clearly and I try my best to be a precis in my recollection as I can. What I remember is when I was taking into the police station in Jan 2014 and I was a suspect in a robbery matter, on the same day they brought along a lie detector that proved my position, that I have nothing to do with the robbery. On the same day after the questions about the robbery, after that fell away, I stayed in the same room and thy put some questions to me about Mr Legheti but it wasn't a proper interview, just questions put to me, but not in the format of an interview. I can't tell you exactly when I has been charged but I was already here in the UK. Finding out that I was charged, I don't often talk to my ex, but at one point she made points that I should go on this portal, and I might find my name there, which I did, and I found my name. the hearing started regarding the robbery matter and then somehow almost son after the next day, there was hearings about the Legheti matter, it is also possible because these things are blurred in my mind, but I might have gone to some of these hearings, but I don't want to mislead you. I am pretty certain that it was only over her when I was already over here that I found out I was convicted and sentenced in that matter, and I got 5 yrs. What I have been saying, there is a possibility that I was there at some of the hearings, if I was it would've been at the beginning of proceeding, if my Hungarian lawyer is now asking for a retrial for me, on the basis I was absence at proceedings she must of looked that up or have something to back that up to be asking on my behalf for a retrial. Just because I turned up at the first hearing, it doesn't mean that I really knew what evidence that could have been against me, if I had turned up it would've been in the secure knowledge of not doing it, I didn't even suspect that I might possibly get 5yrs for it. If I was there, it's possible I knew that I was charged. There were a whole string of hearing following each other, and I cannot be sure that I was there at the first hearing, but if I was then I must have been aware that I was accused of something. I didn't return to Hungary for my mother's funeral. I couldn't because I had lost y id card and then covid came, and during covid I had no means of getting it replaced and I haven't not been back in Hungary since 2016. I haven't seen my children since then, they live there
- Ms Westcott accepts that "the Appellant accepted some knowledge of the Hungarian case" and "so he was not lulled into a straightforward false sense of security". The Judge's finding was that: "The RP had knowledge of the proceedings against him." I am confident in recording the following as facts. The Appellant knew from 2014 that the Ligeti extortion matter was under investigation. He knew when he left Hungary that there were proceedings against him in relation to that matter. He was able to find out about his cases by accessing a portal. Using the portal he found out from the UK about his conviction and 5-year sentence in the Ligeti matter. There was no false sense of security, straightforward or otherwise. As Ms Hill pointed out, the facts of this case are very different from a case like Eason v USA [2020] EWHC 604 (Admin). There on unchallenged evidence a May 2011 full FBI interview with the later-RP accompanied by a lawyer had led to the belief that the matter was at an end, such that the lawyer's files had later been disposed of (§§8-12).
A "Location Unknown" to the Hungarian Authorities
- As AW2 records (Box (d) point 4), at a time "approaching the end of the first instance proceedings", the Appellant left Hungary "for an unknown location". The Judge recorded this as a finding. I am confident in recording, as findings of fact, that the Appellant's whereabouts in the UK was to the Hungarian authorities an "unknown location"; and that he knew that. Having said that he "travelled openly on his Hungarian ID card", he accepted that he has not been back to Hungary since 2016, including after his ex-wife and two children returned to Hungary in March 2019, and after his mother died in Hungary in 2019. His evidence was that he could not attend her funeral having lost his ID card. Ms Westcott relies on the fact that on 3.10.22 he made an appointment at the Hungarian Consulate in London for a new Hungarian ID card, which was issued on 4.10.22. His proof of evidence says that was based on information from the UK authorities about eligibility for settled status, needing up to date documents for that purpose. On the evidence I was shown, this was the first point in time at which the Appellant disclosed his whereabouts and address to the Hungarian authorities. As Ms Hill points out, he was arrested (on AW1) 6 days later.
The Passage of Time Overall
- The offending is old. It took place between November 2012 and November 2013. That is now 11y 3m to 12y 3m ago. Even from the date of the Appellant being unlawfully at large (s.14), the passage of time is now 7y 3m. The Appellant has been in the UK since September 2016: 8y 5m. These are long passages of time. Especially when viewed as portions of the Appellant's adult years. He has a caution for shoplifting here aged 26 (14.9.16) and a community sentence for battery here aged 28 (10.9.18). These can properly count against him. On the other hand, his last offending was 6y 5m ago. The overall passage of time does in this case reduce to some degree the weight of the considerations in favour of extradition. It does in this case significantly increase the weight of the considerations against extradition. There are longer links and ties, which are stronger links and ties. Significant things have happened. As to considerations against extradition, whose weight is in part a function of the passage of time, these include the following. The Appellant began putting down private life roots, and establishing private life ties, to the UK in September 2016. He has worked here, enabling him to support himself and send money for his two children who in March 2019 left the UK with their mother (his ex-wife) to return to Hungary. He and the partner met in 2018 and became a couple in 2019, cohabiting since then. Their family life together was established (3y) prior to his arrest (10.10.22), and has continued to deepen with the passage of time. They had by 2022 become engaged to be married, and in July 2023 the partner had a miscarriage.
The Period 2013 to 2016
- Ms Westcott submits that the period from November 2013 to 11.7.16 (2y 8m) should have been found by the Judge, and should now be found by me, to be a period in which the Hungarian authorities were "dilatory" in dealing with the Ligeti matter. I do not accept that submission. Mr Ligeti reported the extortion to the authorities at some time in or after November 2013. The Appellant was questioned in 2014. He says he was in prison for other matters from January 2014 to May 2015. The Ligeti offending involved multiple dates and multiple defendants. By the time the Appellant "left" Hungary in 2016, the Ligeti matter was "approaching the end" of the "first instance proceedings". There were various hearings. The trial culminated in a conviction on 11.7.16. I cannot agree that this passage of time is unexplained; still less that it is dilatory.
The Period 2017 to 2022
- Ms Westcott submits that the period (4y 11m) from 28.11.17 (unlawfully at large) to 18.10.22 (AW2) should have been found by the Judge, and should now be found by me, to be a period of "culpable" delay by the Hungarian authorities. I do not accept that submission. Ms Hill accepts that what happened after 28.11.17 has not been explained in AW1, AW2 or in any FI. Delay weighs more heavily in the balance if it is found to be culpable. However, being unexplained does not make delay culpable. I have described how the Appellant's whereabouts in the UK were to the Hungarian authorities an "unknown location". The Appellant knew that to be so. The first point at which it is said on behalf of the Appellant that he had any contact with the Hungarian authorities was 3.10.22. But the Hungarian authorities had not given up. In the context of AW1 and a conviction which became final on 2.2.16, they had issued AW1 on 31.3.22. They issued AW2 on 18.10.22. I cannot see a proper basis for characterising as "culpable" delay on the part of the Hungarian authorities the period to 2022. Linked to this, it could not be said that it is the responsibility of the Hungarian authorities that he was not brought to justice earlier, and that his private life deepened from 2016 and his family life from 2019, in circumstances which engages some responsibility still less causative responsibility on the part of the Hungarian authorities. As to the period after October 2022, the pursuit of the Appellant has been clear on AW1 and then AW2, and the passage of time (a period of 3y 4m) has arisen during extradition proceedings and then appeal proceedings, in which the Appellant has been invoking his due process and substantive rights.
The Partner's Knowledge (10.10.22) of the Extradition Risk
- None of the written evidence indicates that the partner was for her part aware, ahead of his arrest on AW1 (10.10.22), of any Hungarian criminal matters in respect of which the Appellant was or might be wanted. They had been together as a couple, and cohabiting, since 2019. There is no indication from the judgment that the Appellant was cross-examined on this. The decision was made by the IJA not to cross-examine the partner. There is no basis for any finding of fact that the partner was aware of the shadow of a possible extradition ahead of 10.10.22; including ahead of the couple becoming engaged to be married. Ms Hill was right not to invite one.
The Partner's Health
- The partner was born with a hole in the heart. She experiences chest pains, which the clinicians have assessed (23.5.22) are not cardiac in origin. Medical documents from 2019 record a mental health condition (depression). Her unchallenged witness statement, recorded in the Judge's judgment, said (27.7.23)
Although I have had some cleaning work in the UK, I am limited in what I can do because of my health condition. I was born with a big hole in my heart in Hungary and I nearly died and I had to have a big operation which has left me with a weakness in my heart ever since. If I do too much, or get stressed, like I am from Richard`s extradition case, I need to sit down and rest for a long time. I also get chest pains and high blood pressure, and when Richard was in the prison I was not sleeping properly because I was so worried about him. I am still very worried about what could happen to him if he were to be extradited, and I currently prescribed propranolol and amtryptaline for my depression and anxiety. For treatment I am under the care of a heart specialist and GP in the UK.
The Appellant's proof of evidence referred to the partner's "panic attacks" (4-5 times in the previous month) and said (as the Judge's judgment records): "when I am by her side, I can help her. I see when an attack is coming on, I get her water and she knows I'm there for her". Like the Judge, I was given no basis for rejecting any of this evidence. I accept it. The Judge went on to make these findings: that the Appellant's partner "has ongoing health issues which have persisted during his time in custody in the UK"; that she "has a medical condition (hole in the heart and depression)"; that no medical evidence gave "a prognosis of a deteriorating position"; that "her conditions are not such that she requires constant care"; and that "she is not so unwell as to be unable to work". Nothing before me has undermined those findings. I accept the evidence on this topic.
The Impact and Implications of the 6m Custody (10.10.22 to 12.4.23)
- In the context of the partner's health, the Judge found that "she coped independently while he was in custody". The Judge also recorded the Appellant's evidence that: "During the time in prison in the UK in these proceedings, my partner has been in work". I have described, and accepted, the evidence then "when Richard was in the prison I was not sleeping properly because I was so worried about him"; and that "when I am by her side, I can help her" and "she knows I'm there for her". There was other evidence: that it was "very hard for both of us when he was arrested and remanded in custody"; that "I missed him all the time, even though I saw him once a week in the prison, and he called me up to four times a day"; that "I could no longer afford to stay in the flat" and "moved twice"; that "the six months when I was in custody were very difficult for both of us"; that "she found it difficult to manage financially [and] had to move to cheaper accommodation"; that "she has become more anxious and has had more panic attacks". Like the Judge, I was given no basis for rejecting any of this evidence. I accept it all.
The New Baby
- The fresh evidence is that the partner is expecting what will be the couple's first child, with a due date of 18.3.25. It is common ground that extradition would not mean the Appellant's absence from the birth of the baby. His bail conditions have been varied to allow his attendance with the partner at hospital. The IJA has confirmed it would agree with this Court (pursuant to s.36(3)(b)) a deferred transfer window of 7 days after 1.4.25. The evidence about the new baby is what had triggered this Court retaking the decisions, because the facts and circumstances and the impacts and implications of extradition are materially different. There is now a further "victim" whose "Convention rights" are under consideration; that the extradition would interfere with the baby's Article 8 rights; and that the child's best interests are for this Court a primary consideration. The new baby also means the nature and implications of the extradition-interference with the Appellant's and the partner's Article 8 rights are different and involve important new features and layers.
- Ms Hill reminds me that it has been a "choice" on the part of the Appellant and the partner to have a child. It is right to recognise this pregnancy as different from one arising in circumstances of a false sense of security. But it has not been suggested by the RJA that this is "a deliberate attempt to improve [the parents] position in the proceedings", and in any event that would be a point "in no way diminishing the weight to be given to the child's interests": HH v Italy [2012] UKSC 25 [2013] 1 AC 448 at §§77-89. Ms Hill did not seek to dissuade me from agreeing, as I do, with Kerr J in Prisacariu v Romani [2022] EWHC 538 (Admin) (where it was the RP who had become pregnant) at §106:
I do not think it would be right to hold against the appellant the fact that she conceived and bore a child while under the cloud of the extradition proceedings. A young person of childbearing age cannot be expected to put her life on hold for year on year to await the outcome.
Other Aspects
- Ms Westcott invited the Court to have close regard to the following, and I have done so:
i) Future Delay. I was shown the Interim Resolution adopted by the Committee of Ministers (CM/ResDH(1024)119) in relation to the Gazso Group of cases (48322/12) decided by the Strasbourg Court, concerning "the structural problem of excessive length of civil, criminal and administrative proceedings and the lack of effective domestic remedies". There is the objective concern about the right of retrial and a retrial taking involving excessive delay. There are the subjective concerns about this, on the part of the Appellant and the partner. There is the problem legal and practical of whether the Appellant would secure bail. However, alongside this, it is also right to have in mind general presumptions as to ECHR Art 5 and Art 6 compliance; and Trade and Cooperation Agreement Art 601(3) which address detention-interruption and a retrial beginning "within due time". It is right also to have in mind that the Hungarian prosecutor's office acted promptly in making the motion for the retrial, and that no criticism or concern can arise from the fact that the retrial has not commenced, since retrial is contingent on surrender and physical presence.
ii) Defending a retrial. Ms Westcott relies on the difficulties which will inevitably arise in the Appellant presenting or disputing evidence in a retrial, in light of the lengthy period of time that has elapsed since 2012/2013. She points to the fact that Eason was a ten year passage of time. However, Eason was a very different case. In this case, the Judge made two findings, with which I agree. First, that the Appellant did not "specify" a basis on which surrender would be unjust. Second, that the Appellant "will be able to put forward his defence" at his post-surrender retrial.
iii) Discrimination. I was shown the Resolution of the European Parliament on 1 June 2023 on breaches of the rule of law and fundamental rights in Hungary, including its references to a self-assessment involving a national Roma inclusion strategic policy framework; and to strong concerns about the further deterioration since September 2022. There is the objective concern that the Appellant described by the partner as half-Roma may face discriminatory ill-treatment; and the subjective concerns about this, on the part of the Appellant and the partner.
iv) Threats. Ms Westcott relies on the partner's unchallenged evidence to the Judge about texts and phone calls received by her from the Appellant's ex-wife "to kill Richard if he is sent back to Hungary"; and that the ex-wife "also made threats to harm me in the UK". Alongside this, the Judge explained (by reference to Articles 2 and 3) that there was no demonstrated ECHR failure of "reasonable protection against such a risk" by the Hungarian authorities. There is the objective concern that the Appellant may face harm, albeit not an ECHR violation; and the subjective concerns about this, on the part of the Appellant and the partner.
v) Family support. Ms Westcott relies on the absence of family support for the partner in the UK; and the limited family members for the Appellant in Hungary. The Appellant's proof of evidence said he does not "have any real family in Hungary"; his mother having died; his father being resident in the Netherlands; being estranged from his ex-wife; and his sister "planning a move to the UK". I was told that there is no family in the UK on which the partner could rely.
vi) Relocation. Ms Westcott relies on the unlikelihood, on the evidence, that the partner would go to Hungary if the Appellant were extradited. The partner has an 8 year old son from a previous relationship, living in Hungary with the partner's mother. The Appellant told the Judge in cross-examination that the partner "said she would like to come if I am going". However, the partner's latest witness statement which is unchallenged and which I accept says "I would not willingly go to Hungary"; that "my pre-settled status is due to renew for another two years"; that "Hungary is not safe for us"; and that "this is my home".
vii) Family finances. I have described the evidence regarding the position while the Appellant was remanded in custody for 6 months. The partner's latest witness statement which is unchallenged and which I accept says that the couple has "serious money problems", that universal credit was suspended and a cost of living payment faces recoupment; that the partner has no savings and owes a bank £500; and that the Appellant cannot work at present due to immigration-related issues. She tells me of her hope to return to work, around the Appellant's employment, with the couple taking turns with the baby.
I have taken account of all of these features of the case.
Seriousness
- The Appellant stands convicted by a Hungarian court of extortion (blackmail), committed aged 21/22, on multiple occasions across a twelve-month period with others to the tune of an equivalent of £2,400, extorted from a person who gave agricultural work to the Appellant and members of the family. I described the index offence at the start of this judgment. I return to it, because it is a matter whose seriousness must in my judgment weigh heavily. This is a conviction case. And the Appellant was sentenced to 5-years custody. That sentencing was informed by his previous offending, being sentenced as a "recidivist". He had committed ten offences involving dishonesty in Hungary, aged 18-21, between January 2009 and September 2011. This is also the degree of seriousness with which the retrial is concerned. It is highly relevant when considering s.14 oppression. And it falls alongside and serves to strengthen those weighty public interest considerations in support of extradition.
Public Interest Considerations in Support of Extradition
- The basic rationale for extradition is reflected in the way in which extradition judges describe the strong public interest considerations in favour of extradition. These, as I have recognised earlier, then need to be calibrated as to weight by features such as the passage of time and fugitivity/non-fugitivity. There is the public interest in upholding extradition requests and treaty obligations. There is the public interest in ensuring that there are no safe havens, for those avoiding prosecution or sentences, to which people may think they could flee or from which they may think they can avoid facing their responsibilities under criminal or penal due process. There is the public interest in according mutual confidence and respect to decisions and processes of relevant foreign judicial authorities. These are familiar and important and the Judge referred to them all. They weigh heavily in my consideration on this appeal.
Impacts and Implications
- For the Appellant, extradition will remove him from what for 8y 5m has been his home and home country, after fighting extradition for the last 2y 4m. He will leave behind the partner of 5y, to whom he is engaged to be married, and their new-born baby; without support and in perilous financial circumstances. For the partner, extradition removes her partner and the father of her new baby, at a time when she needs him most, to bring up a new baby single-handedly; facing the exacerbation of her mental and emotional conditions and their physical manifestations; without the support that would enable a return to work; and in financial circumstances inevitably involving reliance on welfare benefits. All for a substantial period of separation across borders, absent an invidious decision by the partner to take the baby to Hungary. For the daughter, extradition removes the support of a father, removes the prospect of a supported mother; denies the opportunity to form a bond with her father. All of this for what stands to be an extended period of time. As Ms Westcott puts it, the partner will clearly struggle practically and emotionally as a single parent, with a consequential damaging effect on the baby; being a serious impact of extradition on fiancιe and child. As Ms Hill acknowledges, it will be extremely difficult for the partner; and the child's loss of opportunity to establish a relationship with her father is a distressing feature of this case. They involve innocent third parties. The impacts and implications are serious. They involve real hardship. These weigh heavily in my consideration on this appeal.
Conclusions on s.14 and Art 8
- I have reflected on all of these features of the case, and all of the circumstances, individually and cumulatively. I am not going to repeat, or summarise, what I have said about each feature. I have been assisted by the submissions on both sides, and also by the Judge's judgment. I have looked at the case through the lens of s.14: "injustice" of extradition by reason of "the passage of time". I have looked again through the lens of s.14: "oppression" of extradition by reason of "the passage of time". I have done so remembering the room for overlap between these two ideas, and the composite idea recognised in the authorities that between them they should cover all cases where extradition would not be fair. I have looked at the case through the lens of the rights to be protected from disproportionate interference with private and family life: of the Appellant; of the partner; and of the child. I have considered those rights and impacts individually, and cumulatively. But, having done so, I have not been able to see that the Appellant's extradition is unjust, or oppressive, by reason of the passage of time. In fact, having regard to the facts and circumstances, I am entirely satisfied that it is neither of those things. Nor have I been able to see that extradition would be disproportionate, viewed in terms of private and family life of any, and of all, of the three individuals whose private and family lives are being interfered with. In fact, having regard to the facts and circumstances, I am entirely satisfied that the considerations in favour of extradition decisively outweigh the considerations which cumulatively weigh against it.
Outcome
- It follows that the appeal is dismissed on all grounds; with no order as to costs except that there be a detailed assessment of the Appellant's publicly funded costs. I will record within the Order the Court's agreement with the IJA (s.36(3)(b)) that the window for the Appellant's extradition should be 10 days from 1.4.25. That means the Appellant can be present for the birth of the couple's baby daughter. Then, however, he will be transferred to Hungary, to face legal due process in relation to the Ligeti matter.
6.3.25
