Kalman Nemeth v Hungary
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 28 March 2023 |
| Neutral Citation | [2023] EWHC 692 (Admin) |
| Docket Number | Case No: CO/1439/2021 |
| Year | 2023 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 692 (Admin)
Mr Justice Fordham
Case No: CO/1439/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Louisa Collins (instructed by Taylor Rose MW Solicitors) for the Appellant
Amanda Bostock (instructed by CPS) for the Respondent
Hearing date: 8.3.23
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Introduction
This is a case about whether extradition is barred by reason of “absence of prosecution decision”, pursuant to s.12A of the Extradition Act 2003. The leading case on s.12A is Puceviciene v Lithuania [2016] EWHC 1862 (Admin) [2016] 1 WLR 4937 (DC 22.7.16). The Appellant is aged 29 and is wanted for extradition to Hungary. That is in conjunction with an accusation Extradition Arrest Warrant (“ExAW”) issued on 24 September 2019 and certified on 21 February 2020, on which he was arrested on 18 June 2020. After an oral hearing on 18 March 2021, District Judge Rimmer (“the Judge”) on 15 April 2021 ordered the Appellant's extradition. Among the issues addressed in the Judge's judgment (“the Judgment”, in which the Appellant is “RP” for requested person) was the s.12A bar. The question on this appeal is whether the Judge ought to have decided that question differently, ordering the Appellant's discharge (see s.27(3) of the 2003 Act). The alleged index offence, for which the Appellant's extradition is pursued, was identified in the Judgment as follows:
The conduct is described as an offence of knifepoint robbery committed on 17 November 2016 at 01.10 hours in Budapest. The RP acted with an accomplice to rob the complainant, Gary Russel Thomson, of cash in the street at night. They asked the complainant for money to pay for [a] bus ticket. The victim took out 1,000 HUF (then equivalent to approximately £2.76) from a money clip. When he tried to put the money clip back into his pocket, the RP pulled out a 7cm long knife and pointed it towards the victim's abdomen from half a metre away. The RP and his accomplice took a total of 40,000 HUF (then approximately £100). When the victim tried to recover the money, the RP “stabbed towards” the complainant and ran away. The accomplice then punched the complainant in the face causing him to fall over. The monies were not recovered .
At the oral hearing before the Judge the Appellant gave evidence and was cross-examined. He claimed to have come to the UK from Hungary a few days before 17 November 2016, the date of the alleged offence. The Judge rejected that evidence.
Section 12A
Section 12A is headed “absence of prosecution decision” and provides as follows:
(1) A person's extradition to a category 1 territory is barred by reason of absence of prosecution decision if (and only if): (a) it appears to the appropriate judge that there are reasonable grounds for believing that: (i) the competent authorities in the category 1 territory have not made a decision to charge or have not made a decision to try (or have made neither of those decisions), and (ii) the person's absence from the category 1 territory is not the sole reason for that failure, and (b) those representing the category 1 territory do not prove that: (i) the competent authorities in the category 1 territory have made a decision to charge and a decision to try, or (ii) in a case where one of those decisions has not been made (or neither of them has been made), the person's absence from the category 1 territory is the sole reason for that failure .
In this case, Hungary – the requesting state in the extradition proceedings – is the “category 1 territory”. The Judge was “the appropriate judge”.
As Lord Thomas CJ explained in Puceviciene at §6:
In essence, the s.12A bar to extradition only operates if (1) there are reasonable grounds for believing that one or more of the required decisions have not been made, and not made for a reason other than the requested person's absence from the requesting state, and then (2) the requesting judicial authority fails to establish, to the criminal standard of proof, that in fact both required decisions have been made or that the only reason for both of them not having been made is the requested person's absence from the requesting state .
Section 12A operates as follows. (1) There are two prosecutorial decisions required to have been “made” by the requesting state's competent authorities (the “Required Decisions”). The Required Decisions are (a) the “decision to charge” the requested person, and (b) the “decision to try” the requested person. (2) Where there is a relevant doubt (the “Relevant Doubt”) as to whether one or both of the Required Decisions has been made, there is a permitted excuse for that “failure” (the “Permitted Excuse”). The Permitted Excuse is that the requested person's “absence from the territory” is the “sole reason” for the failure. (3) Extradition is barred where there is a Relevant Doubt: (a) about whether one or both of the Required Decisions has been made; and (b) about whether the Permitted Excuse applies to that failure. (4) Deciding whether there is a Relevant Doubt involves two sequential stages. Each stage places an onus and poses a question. (5) At the first stage the onus is on the requested person and the question identifying the Relevant Doubt is whether they can point to “reasonable grounds for believing”. If not, the second stage is not reached. (6) At the second stage the onus is on the requesting state and the question identifying the Relevant Doubt is whether the requesting state can “prove” matters. That means to the criminal standard (s.206): beyond reasonable doubt.
Section 12A may come to be applied at “a single hearing at which all issues are resolved” with questions “identified well in advance” and all “questions and answers” provided ( Puceviciene at §35). That is so, “even though the section contemplates two different stages” (also at §35). Or there may be sequential hearings. There may be a hearing at which the first stage question is asked (“reasonable grounds for believing”) as a “preliminary hurdle”, with an adjournment following for “further information” to be elicited to “prove” the points at the second stage ( Puceviciene §17). Or there may be a “single hearing” which uses a “two stage inquiry” (§38). This could start by asking whether the requested person has established the first stage Relevant Doubt (“reasonable grounds for believing”) and, if not, going no further. In the present case, there was a single hearing before the Judge dealing with the s.12A issues, based on the evidence as a whole and having heard the arguments on both sides. In such a case, as it seems to me, the differently expressed formulations of the Relevant Doubt, at the two distinct stages, may merge into one. The absence, in the end, of “reasonable grounds for believing” could be because the requesting state has been able to “prove” matters beyond “reasonable doubt”. That may be expressed as the requested person failing to establish “reasonable grounds for believing”. If, having heard all the arguments and considered all the evidence, the court is satisfied that the s.12A bar does not apply, the questions at the two stages may thus become two sides of the same coin. If, in the end, what persist are “reasonable grounds for believing”, I cannot see how “reasonable doubt” can at the same time have been eliminated by proof. I can see that the question could then be whether to keep the emphasis on the first stage question being met, with an adjournment and a request for further information – or even a further adjournment and request – allowing the requesting state a (further) opportunity to meet the second stage question.
I will set out here some of the key propositions about s.12A which, as it seems to me, arise from Puceviciene:
i) The “purpose” of s.12A is “to ensure that individuals are tried expeditiously following their surrender” ( Puceviciene §4ii); to “ensure”, “before extradition can occur”, “that a case is sufficiently advanced in the issuing state”, meaning there is “a clear intention to bring the person to trial”; so that people “do not spend potentially long periods in pre-trial detention following extradition”, while the issuing state “continues to investigate the case” (§§11–12). The “mischief at which the section is directed is the possibility of a person being surrendered and then languishing in custody while the alleged crime continues to be the subject of lengthy investigation without [a] decision to charge and try having been made” (§73).
ii) The “relevant time”, for examining whether the Relevant Decisions have been made or whether the Permitted Excuse is applicable, is the present: the time of the Judge's decision or the decision of the High Court on appeal (§65).
iii) A “cosmopolitan interpretation” (§11) and “cosmopolitan approach” (§19) are called for (also §§38, 81): “which accommodates and reflects the criminal procedures of other countries, rather than those in the UK”, to “avoid emplacing significant but unintended barriers to extradition on a speedy basis, while still respecting the purpose of s.12A” (§11). It is necessary to take into account the “diversity of procedures” where “the procedure for bringing alleged criminals to justice varies very considerably between states” (§39), with “substantial differences” (§42). Although “systems for criminal procedure will have usually (i) a stage where investigation is the focus; (ii) a stage where the prosecutor with conduct of the prosecution in court considers whether to bring a charge, whether to proceed to trial and prepares for trial and (iii) a...
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