Hungarian Judicial Authorities v Fenyvesi

JurisdictionEngland & Wales
Judgment Date19 February 2009
Neutral Citation[2009] EWHC 231 (Admin)
Docket NumberCase No: CO/10114/2008
CourtQueen's Bench Division (Administrative Court)
Date19 February 2009
The Szombathely City Court/the Sopron City Court/the Municipal Court of Szombathely (Three Hungarian Judicial Authorities
Roland Fenyvesi
Kalman Fenyvesi

[2009] EWHC 231 (Admin)


Sir Anthony May

President of the Queen's Bench Division

The Honourable Mr Justice Silber

Case No: CO/10114/2008




Peter Caldwell/Ben Keith (instructed by CPS Special Crime Div) for the Appellants

Ben Brandon (instructed by Kamrans, Sols) for Roland Fenyvesi

Rosemary Davidson (instructed by Lawrence & Co, Sols) for Kalman Fenyvesi

Hearing dates: 21/01/2009

Sir Anthony May President of the Queen's Bench Division


This is the judgment of the Court:



In Barrow v Bankside Agency Limited [1996] 1 WLR 257, Sir Thomas Bingham MR said this at page 260:

“The rule in Henderson v Henderson (1843) 3 Hare 100 is very well known. It requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided (subject, of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise. The rule is not based on the doctrine of res judicata in a narrow sense, nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on for ever and that a defendant should not be oppressed by successive suits when one would do. That is the abuse at which the rule is directed.”

This passage concerns a rule of civil litigation which at first blush is somewhat removed from the central subject of this appeal. But the policy behind the rule in Henderson v Henderson has quite close affinity with the policy which lies behind authorities and statutes which regulate the admission on an appeal of evidence which one or other of the parties did not adduce at first instance.


It is normally incumbent on litigants in first instance courts or tribunals in which evidence is adduced to advance their whole case at first instance and to adduce all the evidence on which they want or need to rely. In most cases, the purpose and function of an appeal is to review the decision of the lower court upon the evidence which was adduced before the lower court. An appeal court is not generally there to enable a litigant who has lost in the lower court to advance their case upon new and enlarged evidence which they failed to adduce in the lower court. Litigation should normally be conducted and adjudicated on once only. It is generally neither fair nor just that the expense and worry of litigation should be prolonged into an appeal because a party failed to adduce all the evidence they needed at first instance. The same policy which underlies this contributes to the now very widespread requirement that an appeal or a claim for judicial review (which is appellate in nature) requires permission or leave. There are exceptions to this, of which perhaps the most obvious is an appeal to the Crown Court from a determination of a magistrates' court in a criminal matter, which may be brought without leave; at which fresh evidence may be adduced; and where the appeal is a full rehearing.


The policy that evidence should normally be received once only and at first instance is not unyielding, and a variety of rules has developed to guide the usually discretionary circumstances in which an appeal court will receive fresh evidence. The underlying policy often is that fresh evidence may be received when it is just to do so; or perhaps when it would be unjust not to do so. Thus section 23(1) of the Criminal Appeal Act 1968 enables the Criminal Division of the Court of Appeal to receive any evidence which was not adduced in the proceedings from which the appeal lies “if they think it necessary or expedient in the interest of justice”. This reflects a necessary perception of criminal justice that a conviction which is in truth unsafe should not be upheld for want of fresh evidence which may establish that it is indeed unsafe.


By contrast, rule 52.11(2) of the Civil Procedure Rules provides that the appeal court will not receive evidence which was not before the lower court unless it orders otherwise. This rule, taken alone, is unvarnished, but a civil appeal court's starting point will always be the overriding objective that the rules are a procedural code to enable the court to deal with cases justly.


The discretion to admit fresh evidence afforded by statute and rule in criminal and civil appeals respectively, although it remains a discretion, is not unregulated. Intrinsically the principles of justice would expect the court to ask why the evidence was not adduced at first instance, and whether there is a good reason or excuse for not doing so – for the policy is that litigants should normally adduce their whole case and evidence at first instance. The court would also be expected to ask what part the fresh evidence would play, if it were adduced; and in particular whether it is credible and whether it would or might lead to a different outcome of the case. The appeal court might also be expected to consider how it would itself deal with the fresh evidence if it were admitted. Would it hear the fresh evidence orally and subject to cross examination? Or would it make a paper assessment of the fresh evidence to judge how it fits in with evidence which was adduced at first instance, which, if that was oral evidence, the appeal court would not itself hear orally? Or would the appeal court, if it allowed the appeal, remit the matter to the lower court for rehearing or reconsideration? Or would the appeal court, exceptionally, itself conduct a full rehearing?


On these latter points, a civil appeal court will not receive oral evidence unless it orders otherwise (rule 52.11(2)); has power to hold a full rehearing, but rarely does so (rule 52.11(1)(b)) and see generally E.I. Du Pont Nemours v S.T. Du Pont [2006] 1 WLR 2793); and has power to order a new trial or hearing or to refer any claim or issue for determination by the lower court (rule 52.10(2)). The Criminal Division of the Court of Appeal from time to time hears oral evidence; and has power upon allowing an appeal against conviction to order a new trial upon a fresh indictment (sections 7 and 8 of the 1968 Act).


As to the more general considerations, section 23(2) of the 1968 Act reflects in particular form the expectations to which we have referred and includes in one of the particular matters to which, in considering whether to receive any evidence, the Court of Appeal is required to have regard “whether there is a reasonable explanation for the failure to adduce the [fresh] evidence” in the proceedings from which the appeal lies.


In civil appeals before the inception of the Civil Procedure Rules, the leading authority on admitting fresh evidence was Ladd v Marshall [1954] 1 WLR 1489, which again reflected in particular form the expectations to which we have referred. The Court of Appeal would only receive fresh evidence on special grounds, which included that the evidence could not have been obtained with reasonable diligence for use at the trial. In brief – for an extended exposition is not necessary here – since the inception of the Civil Procedure Rules, the principles reflected in Ladd v Marshall remain relevant, but the court is not placed in a straightjacket of previous authority – see Hertfordshire Investments v Bubb [2000] 1 WLR 2318, Hamilton v Al-Fayed [2001] EMLR 15 at paragraph 11. The Court of Appeal has also regarded it as against principle to admit fresh evidence, if to do so would require the court to conduct a new and very different hearing from that which occurred at first instance.


In both the criminal and civil jurisdictions, attention is paid to the question whether it appears to the court that the fresh evidence may afford any ground for allowing the appeal (section 23(2)(b) of the 1968 Act); or whether the fresh evidence would probably have an important influence on the result of the case ( Ladd v Marshall). In neither jurisdiction does the court have to decide, when it is considering admitting the evidence, that it would or would be likely to be decisive. There is a common practice sometimes adopted, if the court is unable at an early stage to judge the effect of the evidence, of hearing or reading the evidence contingently, and deciding later in the proceedings whether formally to admit it or not.


All this is very well known background to the question which is central to the present appeal which concerns the construction and effect of section 29(4) of the Extradition Act 2003.

The extradition hearing


Three Hungarian Judicial Authorities seek the extradition of Roland and Kalman Fenyvesi, the respondents, who are ethnically of Roma origin and culture, upon a total of 6 European Arrest Warrants. District Judge Purdy conducted hearings during the summer and early autumn of 2008 in the City of Westminster Magistrates Court at which each respondent gave oral evidence. There was written evidence from Dr Martin Kovats, an active academic whose doctoral thesis was entitled “Roma in Hungary”; evidence from Filip Hauzer, who is President of...

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