Central District Court of Buda (Hungary) v Marina Horvath

This is an appeal brought, with permission granted by Fordham J, by the Central District Court of Buda against the decision of a district judge sitting at Westminster Magistrates' Court to order the discharge of the respondent, Marina Horvath, under section 21A(4) of the Extradition Act 2003, on the basis that the respondent's extradition to Hungary would not be compatible with the rights contained in the European Convention on Human Rights; specifically, in this case, the right to respect for family life contained in Article 8 of the Convention.

The relevant background is as follows. The respondent's surrender is sought pursuant to an EAW dated 30 July 2019. This was certified by the National Crime Agency on 28 August 2019. It seeks the respondent's return to Hungary to stand trial in relation to her “leading role”, as it is described, in an organised crime group (or “OCG”) which was engaged in defrauding 12 elderly victims in what are termed “grandchild fraud offences”. Those offences and the harm which they have caused to elderly victims are fully set out in the materials that were before the district judge. They disclose a serious piece of organised criminality, which has caused national concern in Hungary.

The way in which the conspiracy worked was as follows. Elderly individuals were located and then contacted by telephone. The respondent, it is said, or another, would then pose as the victim's relative or as an individual with whom the victim's relative was said to have been in a road accident. The victims were told that the damage from the accident was considerable and sometimes even that a child had been injured. They were told that they needed to send money immediately to pay for damages; or in some circumstances to avoid police involvement; or, in others, to avoid their grandchild being hurt. In fear, the elderly victim would hand over cash or valuables to a lesser individual within the OCG. That individual would be waiting outside the premises of the elderly victim. This was to avoid the victim having any time to seek help or advice.

The equivalent of over £40,000 was stolen from the 12 elderly individuals and the money sent to the respondent and her fellow organisers. This is said to have been to fund their lifestyles in the United Kingdom.

The respondent is also sought for a thirteenth offence of laundering the equivalent of some £7,200 of the proceeds, through bank accounts in her name.

According to the Hungarian authorities, the respondent is said to have been at the top of the OCG, controlling the offending from the United Kingdom, whilst conspiratorially instructing others living in Hungary and ranked lower in the hierarchy to recruit perpetrators in that country, who would collect the cash from the victims in the way I have described.

The operation is said to have been meticulously planned and repeated. The fact that it is described as particularly unpleasant offending, targeting elderly and vulnerable people, seems to me to speak for itself.

The maximum sentence which could be imposed upon the respondent is ten years' imprisonment. A domestic warrant was issued for her arrest on 22 July 2019.

The district judge produced a very detailed judgment. It runs to some 208 paragraphs. The judgment dealt not only with the respondent but also with her now estranged husband, who was also alleged to be a leading member of the OCG involved in defrauding the elderly victims.

The district judge considered the husband to have had the prime role in this regard. The husband's challenge to extradition was unsuccessful.

The reason why the respondent's case succeeded before the district judge was because of the district judge's findings on the effect that the respondent's extradition would have on her daughter. This daughter was born on 3 December 2018 and was aged some two years and four months at the date of the judgment. At para.119 of the judgment, the district judge found “the balance to have been a fine one – exercised, just, in favour of” the respondent and her daughter.

The appellant says that there are multiple errors in the district judge's judgment and that, as a result, his conclusion, finely balanced as it was, has to be wrong and that this court should so find, pursuant to section 29(2) and (3) of the 2003 Act.

There is an application by the respondent to admit new evidence in this appeal. Much of this evidence would, I find, be admissible in the event that the district judge's Article 8 analysis was found by this court to be defective. This is because in such a situation it would fall to this court to undertake the Article 8 balancing exercise based upon the position as it is now. If having done so, this court's conclusion would be that extradition would be a disproportionate interference with Article 8 rights, then the condition in section 29(3)(a) of the 2003 Act would not be satisfied and so the appeal would be dismissed.

The new evidence comprises, in the main, a report from Dr Sharon Pettle. She is a consultant clinical psychologist. Amongst other things, this report comments on two expert reports prepared for the respondent by Dr Peter Corr. He, too, is a consultant clinical psychologist. His reports were prepared before the time of the hearing in Westminster Magistrates' Court, but they were not used by the respondent and so were not before the district judge. The district judge, accordingly, was faced with a paucity of objective evidence on the critical issue of the effect of the respondent's extradition on her daughter.

There is also new evidence comprising a letter from a social worker at Sheffield City Council, in whose area the respondent and her daughter reside. The letter describes the respondent's relationship with her daughter, the latter's enrolment in nursery school and the fact that the respondent's 17-year-old nephew now lives with them. It appears that the nephew is the child of other members of the alleged OCG.

There is also a death certificate, with translation, confirming the death of Rudolf Lakatos. He is the respondent's father.

At the hearing, I admitted the new evidence de bene esse. I have, in the event, taken it all into account.

There is no dispute as to the relevant case law, nor that the district judge was well aware of it. The judgment is careful to make reference to the leading cases on Article 8 in the extradition context. In HH and Others v. Deputy Prosecutor of the Italian Republic[2012] UKSC 35, Lady Hale said at para.8:

“It is likely that the public interest in extradition will outweigh Article 8 rights of the family unless the consequences of the interference with family life will be particularly severe.”

Likewise, at para.132, Lord Judge said:

“The extradition process involves the proper fulfilment of our international obligations rather than domestic sentencing principles. So far as the interests of dependent children are concerned, perhaps the crucial difference between extradition and imprisonment in our own sentencing structures is that extradition involves the removal of a parent or parents out of the jurisdiction and the service of any sentence abroad, whereas, to the extent that with prison overcrowding the prison authorities can manage it, the family links of the defendants are firmly in mind when decisions are made about the establishment where the sentence should be served. Nevertheless for the reasons explained in Norris the fulfilment of our international obligations remains an imperative. ZH (Tanzania) did not diminish that imperative. When resistance to extradition is advanced, as in effect it is in each of these appeals, on the basis of the article 8 entitlements of dependent children and the interests of society in their welfare, it should only be in very rare cases that extradition may properly be avoided if, given the same broadly similar facts, and after making proportionate allowance as we do for the interests of dependent children, the sentencing courts here would nevertheless be likely to impose an immediate custodial sentence: any other approach would be inconsistent with the principles of international comity. At the same time, we must exercise caution not to impose our views about the seriousness of the offence or offences under consideration or the level of sentences or the arrangements for prisoner release which we are informed are likely to operate in the country seeking extradition. It...