Jeno Zoltan Varga v Regional Court of Budapest, Hungary
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morris |
| Judgment Date | 09 February 2023 |
| Neutral Citation | [2023] EWHC 253 (Admin) |
| Docket Number | Case No: CO/414/2022 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 253 (Admin)
THE HONOURABLE Mr Justice Morris
Case No: CO/414/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
George Hepburne Scott (instructed by Lansbury Worthington Solicitors) for the Appellant
Amanda Bostock (instructed by CPS (Extradition)) for the Respondent
Hearing dates: 19 January 2023
Approved Judgment
This judgment was handed down remotely at 2pm on Thursday 9 th February 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives
This is an appeal against the decision of District Judge Pilling (“the Judge”) dated 31 January 2022 to order the extradition of Jeno Varga (“the Appellant”) to Hungary. Permission to appeal was granted by Hill J on 24 June 2022. The Respondent is the Regional Court of Budapest, in Hungary.
There are two grounds of appeal: first, in respect of one of the offences, the Judge was wrong to reject the argument that insufficient particulars of the Appellant's conduct were provided and/or the offence was not an extradition offence; and secondly, the Judge was wrong to have found that the public interest in extradition outweighed the Appellant's private and family life in the UK under Article 8 ECHR.
The Factual Background
The Respondent sought the extradition of the Appellant pursuant to an Arrest Warrant (AW) issued by the Respondent on 18 August 2021. The AW was certified by the National Crime Agency on 27 August 2021.
The Arrest Warrant
The AW seeks the Appellant's return to serve the outstanding 3 years, 8 months and 9 days of three sentences of imprisonment, totalling 3 years and 9 months. The sentences can be summarised as follows:
(i) A sentence of 1 year 6 months imposed on 5 September 2018 (affirmed on 20 June 2019 at second instance) — relating to the theft of a handbag and its contents from a pharmacist assistant at work on 31 August 2016 (I refer to this as Offence 1);
(ii) An 8 months suspended sentence imposed on 9 April 2014 (but activated by the sentence imposed on 5 September 2018) — relating to breaking a car window to steal a phone on 19 June 2013. (I refer to this as Offence 2);
(iii) A 1 year 7 months suspended sentence imposed on 11 November 2014 (also activated by the sentence imposed on 5 September 2018) — relating to the theft of cash and documents from a coat within an office on 2 January 2014. (I refer to this as Offence 3).
The Appellant was present in relation to the two earlier sentences which were initially suspended. In relation to the most recent sentence, he was present at first instance and accepted in evidence that he may therefore also have been present when the two earlier sentences were activated. The Judge found that he did not attend his appeal on 20 June 2019, but had been duly summonsed and was aware of it.
Offence 2
As regards Offence 2, the Appellant's involvement was described box (e) in the AW as follows:
“From among the accused persons the 1 st accused … broke the front right window of the Toyota Auris type passenger car… and from there he appropriated the Nokia 2680 type mobile phone owned by the victim… The 2 nd accused VARGA… assisted the action of the 1st accused… by generating an intention-confirming impact in the presence of the 1 st accused”
( emphasis added)
Importantly, Box (e) went on to state that Offence 2 was a conviction for:
“the misdemeanour offence of theft as an accomplice (which is classified in accordance with Ss. 370(1) and (2)b)bc) of the Criminal Code)” ( emphasis added)
Those provisions of the Criminal Code were further explained as containing the definition of the offence of theft and the various maximum sentences for that offence.
Box (e) then went on to define the term “accomplice” in the following terms:
“By virtue of section 14(2) of the Criminal Code, an accomplice is a person who knowingly and voluntarily helps another person to commit a crime”. ( emphasis added)
The nature of the Appellant's involvement was largely repeated in the Further Information dated 30 September 2021 (“the Further Information”), where the Respondent stated, in respect of Offence 2:
“The court acting in the basic case stated that the presence of the 2 nd accused VARGA… had an intention-enhancing effect on the 1 st accused,…” ( emphasis added)
It is common ground that, as a matter of language, the references to “intention-confirming” and intention-enhancing” mean that the fact that the 2 nd accused (i.e. the Appellant) assisted and/or was present supported the proposition that the 1 st accused had the relevant intent to steal.
The Further Information
The Further Information stated, inter alia, as follows:
(1) The Appellant was not forbidden from leaving the territory but was under an obligation to notify any address change within 3 days. He became aware of this obligation from the second instance decision on 20 June 2019. The documents did not conclude that the Appellant did not meet this obligation (paras. 9 and 10).
(2) The Appellant personally received the summons to the hearing for the second instance court (to take place on 20 June 2019) ‘in his own hand’ on 23 May 2019 (para. 11). However the court received a document from him on the 25 June 2019 claiming that he had been in Scotland with his two minor children and, due to the distance and the fact that the post had not been delivered, he had not been aware of the date of that hearing i.e. 20 June 2019 (para. 12).
(3) After the court decision on 20 June 2019, the Appellant was summonsed to start and serve his sentences of imprisonment by 9 October 2019, but he did not attend. On 28 October 2019 an order was made for him to be brought to prison by 11 November 2019. This was not effective. An arrest warrant was issued on 29 July 2020. On 3 June 2021 the court was informed by the Hungarian police that the Appellant was abroad. On 23 July 2021 an EAW was issued, and a TACA warrant was issued on 18 August 2021, once it was known that the Appellant was in UK (para. 14).
Further facts
In addition to these convictions in Hungary, the Appellant has a conviction for two further theft offences for which he received a community order on 21 November 2018 and a conviction for public order offences from 12 July 2019 for which he received a fine.
The Appellant stated, and the Judge found, that he came to the UK in October 2019. The Appellant was arrested in the UK on 2 September 2021 from an Ibis hotel, having been provided with accommodation there through St Mungo's homeless charity. He was known to be a class A drugs user, without employment and with a methadone scrip at the time of his arrest. He has a caution for the possession of heroin on 8 March 2020.
The Appellant was brought before Westminster Magistrates' Court on the day of his arrest and remanded into custody where he has remained. The extradition hearing took place on 10 January 2022. Judgment was given and extradition ordered on 31 January 2022.
The Appellant's proof of evidence
In his proof of evidence for the extradition hearing, the Appellant stated that he had supplied his UK address to the Hungarian authorities. They were aware of his whereabouts because they had sent a letter to him there. He maintained that he had not been notified of the outcome of the appeal in June 2019. He said that at that time he was still in Hungary because he moved to the UK in October; “I had no awareness that a decision had been made and that I had a remaining sentence to serve in Hungary. My understanding was that my case was still at the appeal stage, and I would be informed of any changes”. He said that he left in October not knowing that the appeal process had been completed. This was not accepted by the Judge.
The Judgment
As regards findings of fact, the Judge found that the Appellant came to the UK in October 2019 and had been living openly. She accepted that he was not under any obligation to remain in Hungary nor that he had failed in any obligation to notify his address to the Hungarian authorities (§§12 and 13).
As regards fugitive status, the Judge found that the Appellant was present at the hearing in September 2018 and knew that the suspended sentences had been activated on that date (§14). At §15 she further found that the Appellant knew of the appeal hearing on 20 June 2019, in reliance upon the facts stated in the Further Information, per paragraph 11(2) above. The Judge further found that the Appellant chose not to attend the appeal hearing and wrote the letter hoping further to delay his summons to prison.
On these findings, she concluded (at §17):
“I am satisfied to the criminal standard that the RP was present when his suspended sentences were activated and that he left Hungary for the UK in 2019 in order to avoid serving that sentence of 3 years and 8 months and 9 days. As [a] result I find him a fugitive from justice”
Before the Judge, the Appellant contended that, in relation to Offence 2, the AW does not adequately provide the particulars of the conviction so as to comply with section 2 Extradition Act 2003 (“EA 2003”) and/or Offence 2 does not amount to an extradition offence because it does not satisfy the dual criminality requirement. In relation to that contention, the Judge concluded (at §§27 to 29) as follows:
“27. For the purposes of dual criminality, the requesting authority does not have to identify or specify in terms the relevant mens rea of the English offence. It is sufficient if it can be inferred by the court from the conduct spelled out in the warrant (and exceptionally, further information) ( Zak v Regional Court of Bydgoszcz, Poland [2008] EWHC 470 (Admin); Assange v...
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