Laszlo Feledi v Regional Court of Miskolc (Hungary)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 16 July 2020 |
| Neutral Citation | [2020] EWHC 1931 (Admin) |
| Date | 16 July 2020 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/448/2020 |
[2020] EWHC 1931 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Fordham
Case No: CO/448/2020
Jonathan Swain (instructed by McMillan William Solicitors) for the Appellant
The Respondent did not appear and was not represented
Hearing date: 16 July 2020
Judgment as delivered in open court at the hearing
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
Note: This judgment was produced for the parties, approved by the Judge, after using voice-recognition software during an ex tempore judgment in a Coronavirus remote hearing.
Introduction
This is an application for permission to appeal in extradition proceedings. It proceeded by Skype for Business conference hearing, at the request of the appellant's representatives, to avoid unnecessary travel to and physical appearance in the court room. It was a remote hearing which took place in accordance with the current High Court arrangements, during what is now a Covid-19 post-lockdown period. The hearing and its start time were published in the cause list, as was the fact that any person wishing to observe the hearing could contact my clerk (using a published email address) and do so, themselves without having to travel to or attend physically in a court room. I heard oral submissions just as I would have done had we all been sitting in the court room. I am satisfied of the following: this constituted a hearing in open court; the open justice principle was secured; no party was prejudiced; and insofar as there was any restriction on any right or interest it was necessary and proportionate.
The appellant is wanted for extradition to Hungary. He is wanted in conjunction with a European Arrest Warrant (EAW) dated 13 October 2018. That warrant relates to a sentence of the Hungarian court imposed on 31 January 2014, when a sentence of one year's custody was imposed, following a conviction on 6 counts from a 7 count indictment. The sentence became final on 13 June 2014. This is therefore a conviction warrant case. There was an oral hearing before the district judge. By agreement between the parties, following a concession, the warrant was discharged in relation to 2 of the 6 offences. Extradition was ordered by the district judge in relation to the remaining 4 offences. Permission to appeal to this court was refused on the papers by William Davis J in an order communicated on 5 June 2020. As is customary in renewed applications for permission to appeal in extradition cases, there has been no appearance before me by on behalf of the respondent. The respondent has confirmed that it relies on the submissions attached to its respondent's notice.
Section 2
The first ground on which permission to appeal is sought relates to section 2 of the Extradition Act 2003. The point is a short one. Mr Swain points out that box (e) “offences” in the EAW contains a description of 7 offences including offence number 2 which was the offence in relation to which the appellant was acquitted in the Hungarian criminal court. Mr Swain submits that that should not have been included in the EAW as part of the matters on which surrender is sought. He submits that that problem could be cured only by the district judge spelling out on the face of the court order that the appellant was not being extradited in relation to the matter on which he had been acquitted. The respondent's answer is that the EAW itself clearly spells the position out. William Davis J was, moreover, satisfied that the judgment of the district judge itself, on its face, also spelled the position out and that nothing more was required. I agree with them both. I am quite satisfied that there is absolutely nothing in this point. It is, in my judgment, already fatal that on the face of the EAW itself box (e) “offences” begins with the words “this warrant relates to in total: 6 (six) offences”. The number “6” and the word “six” are both in bold type. Nobody could conceivably be misled by the fact that there was a description of the 7 indictment offences including offence number 2. No sooner does the reader encounter that offence than they see, again in bold type, that the EAW states on its face that the court acquitted the appellant in relation to that matter, which explains – beyond any doubt or confusion – why it is that the warrant relates only to “6 (six) offences”.
Section 10: dual criminality
The next ground relates to dual criminality and section 10. There are two limbs to dual criminality when one is considering whether that which is alleged and set out on the face of an EAW ‘matches up’ to an equivalent crime under UK domestic law. Although the cases do not always distinguish between accusation and conviction EAWs it is, in my judgment, always worth keeping this in mind. This case is not a description of the case against someone is who is being accused and would be standing trial. This case is a description of charges which led to a conviction and sentence. The first limb relates to the elements of the crime on the face of whatever provisions set out the legal constituent elements of the crime. If, on the face of the statute book or other material, it is clear that the Hungarian crime involves the relevant and disputed elements then that is sufficient. The reason for that is obvious. If, as a matter of Hungarian law, something was required to be proved and the individual has been convicted, the element can be taken to be satisfied. If, as a matter of Hungarian law in an accusation case, an element is required to be proved and the person is accused of that crime, the court can take it that that element is necessarily part of the case against the individual. Where the first limb is not satisfied, the second limb arises. Where the court cannot be satisfied in relation to the matching elements of the offence as prescribed, the court then looks at the conduct that is being described in the individual case. In doing so, the content of the description needs to impel the inference that the matching element is present, in the individual case: for that proposition, Mr Swain cited Cleveland [2019] EWHC 619 (Admin) at paragraph 59.
Mr Swain addressed me in relation to all 4 of the relevant offences. He submits that neither the prescribed element of the crime, nor the inference from the substantive description, can satisfy the requisite dishonesty which would be required of a domestic UK crime. The respondent's notice submits that are under both limbs there is a dual criminality required: first, which is sufficient, as elements on the face of the crime; and secondly, as an alternative and in any event, on the face of the description of the conduct. The district judge was satisfied on the face of the description of the conduct by reference to the second limb. The respondent has subsequently produced supplementary information, which I am quite satisfied the court on an appeal would admit. Indeed, Mr Swain relies on it, because he says the question has squarely been asked as to whether dishonesty is an element of the offences in Hungarian law and he submits that the answer that has come back is either ‘no’ or certainly not clearly ‘yes’. Mr Swain's submission focuses, in particular, on the description in that further information that “unfair conduct does not constitute a legal element in the facts of cases of the felony of secreting assets covering a debt or the felony of embezzlement”. “Secreting assets covering a debt” is the relevant offence in relation to the first matter and “embezzlement” is the offence described in relation to the other three. The conclusion that dishonesty is not a part of these Hungarian crimes, as it seems to me, necessarily carries with it the conclusion that the Hungarian crimes are “strict liability” offences. So, for Mr Swain's purposes, his logic – as I think he accepted in essence – is that it is or may be the position, at least reasonably arguably, that one or other of these offences are “strict liability” offences. That same logic is recognised into Polish cases cited by the respondent Kazimierczuk [2011] EWHC 3228 (Admin) at paragraph 15 and Goldewski [2016] EWHC 2404 (Admin) at paragraph 11.
In my judgment, it is clear based on the further information that the statement “unfair conduct does not constitute a legal element” is not and cannot be read as meaning that these are “strict liability” offences not requiring a guilty mind. The language from the criminal code itself is indicative, in my judgment, of a guilty mind element. But, in my judgment, what puts the flaw in the appellant's logic beyond even reasonably arguable doubt is the fact that the same further information goes on later to spell out that the mere act of “refusing to return property or failing to make a settlement concerning it” is something which “only ha[s] civil law consequences”, and does not constitute the crime of “illegal appropriation”. In my judgment, it must logically follow from that, that “illegal appropriation” is not a “strict liability” offence is a matter of Hungarian law. Otherwise, that distinction would not arise and the mere act of “refusing to return” something or “failing to make a settlement concerning it” would constitute the crime, which it does not. On the basis of that, the statement that “unfair conduct does not constitute a legal element” cannot mean, and cannot reasonably be understood to mean, that there is no need for mens rea (a guilty mind).
Even if that were wrong, I am also at fully satisfied by...
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