England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		17th December 2009

1. MR JUSTICE TUGENDHAT: The only issue remaining in this appeal arises under section 20 of the Extradition Act 2003. Appeals against other decisions by District Judge Purdy on 18th September 2009 were advanced but have been abandoned.
2. In his judgment of that date, the District Judge held that the appellant is entitled, under Hungarian law, to a re-trial in respect of one offence, for which he was tried in his absence, and at that re-trial he will be entitled to representation at public expense.
3. The Europe Arrest Warrant in this case requests the surrender of the appellant in respect of his conviction of some 16 different offences committed between 1996 and 2002. These convictions, in due course, resulted in the appellant being sentenced twice: first, a consolidated sentence of 4 years and 7 months, given on 30th June 2005; and, second, a sentence given on 13th June 2001 of 1 year and 10 months.
4. The offences included theft, assault, possession of firearms and explosives, and forgery. The appellant has been convicted of all but one of them in his presence. The issue in this case arises only in respect of that one conviction, which, it is agreed, was in his absence, namely an offence alleged to have been committed in January 2003. It is alleged in the European Arrest Warrant that the appellant tried to persuade the alleged victim, and witness, to an offence committed in 2002 to lie to the police.
5. On 8th February 2005 the appellant was sentenced to 1 year in custody for this offence and that was confirmed on appeal on 18th May 2009, but on 30th June that sentence was consolidated with a sentence of imprisonment of 4 years and 4 months to make the reduced consolidated total of 4 years and 7 months referred to above.
6. Section 20 of the 2003 Act reads as follows:

"20. Case where person has been convicted

(1) If the judge is required to proceed under this section (by virtue of section 11) he must decide whether the person was convicted in his presence.

(2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 21.

(3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.

(4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21.

(5) If the judge decides that question in the negative he must decide whether the person would be entitled to a re-trial or (on appeal) to a review amounting to a re-trial.

(6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 21.

(7) If the judge decides that question in the negative he must order the person's discharge.

(8) The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a re-trial or a review amounting to a re-trial, the person would have these rights—

(a) the right to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required;

(b) the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."

7. It is common ground that the appellant was absent from the proceedings on 8th February 2005 and 18th February 2009 but that he did not deliberately absent himself. So the issues that arise are under section 20(5), namely whether the appellant would be entitled to a re-trial and, if so, under section 20(8), namely whether at the re-trial he would have the rights there set out.
8. The evidence before the court on these two questions was in the form of two letters from Dr Németh, a judge of the Hungarian judicial authority. The first letter, dated 12th June 2009, included the following:

"The concerned party was not summoned personally, neither was he informed in any other way of the date and place of the trial, as a result whereof decisions were taken in his absence, but after providing the convict with the said sentences, he shall be entitled to the following legal guarantees:

By virtue of Section 408(1)e.) of the Act XIX of 1998 on the Code on Criminal Procedure, in case of an act adjudicated by the definitive sentence of a court, a re-trial may be requested, if the sentence in the first instance case was passed at a trial held in absentia of the convict pursuant to Chapter XXV of the Act."

9. The second letter from Dr Németh is dated 2nd July 2009 and it includes the following:

"2. In accordance with previous information, the convict may exercise all guaranteed rights in the re-trial, included defence, viewing of court files, submission of an appeal against procedural orders, et cetera.

3. For re-trial purposes, a re-trial petition must be filed for the defendant's benefit, there is no deadline for the submission of the petition. Such petition may be filed by the defendant's relatives, brothers and sisters, spouse or civil partner after his death.

The re-trial shall be governed by the same procedural rules as the first-instance proceedings. The court will conduct the full evidentiary procedure according to the re-trial petition.

4-5. The convict may file his defence, whether in person or through authorised counsel, and further evidentiary motions (witnesses, documents, new experts, objects, inspection of locations, et cetera), and may apply for witness confrontations."

10. Mr Middleton, for the appellant, submits, on the point under section 20(5), that the letter of 12th June states no more than that "a re-trial may be requested" and not that the request must be complied with if made. On the point under section 20(8), he submits that the letter does not state that the appellant would be provided with free legal representation if the interests of justice so required. He accepts, however, that there is no evidence that Hungary would not apply the standards required by the European Convention on Human Rights and, in particular, Article 6, which sets out what are the requirements (repeated in section 20(8)).
11. Mr Middleton (sic), in a helpful skeleton argument, referred us to a number of cases to establish the following propositions. First:

" Section 85(5) [that is in terms similar to the terms of section 20(5)] requires the judge to decide whether a convicted person who has not deliberately absented himself from his trial would be entitled to a re-trial et cetera in which he would have the rights specified in section 85(8). 'Entitled' as a matter of ordinary language must mean 'has the right under law'. It is the law of the requesting state which either confers or does not confer that right. It is a right which must be conferred, not merely the possibility of asking the court to exercise a discretion. Free of authority, I would hold it is neither necessary nor right to examine what a requesting state does in practice. Its law will either provide clearly for the relevant entitlement or it will not."

(See Da An Chen v The Government of Romania [2006] EWHC 1752 (Admin) at paragraphs 8 and 20).

12. Second, it is for the respondent to establish compliance with section 20 (see Murtati v Government of Albania [2008] EWHC 2856 (Admin) at paragraph 22).
13. Third, there is the following passage from the decision of the House of Lords in Gomes and Goodyer v Government of Trinidad and Tobago [2009] 1 WLR 1038; [2009] UKHL 21 at paragraphs 35-36:

"35... Council of Europe countries... present no problem. All are subject to Article 6 of the Convention and should readily be assumed capable of protecting an accused against an unjust trial — whether by an abuse of process jurisdiction like ours or in some other way...

36... The extradition process, it must be remembered, is only available for returning suspects to friendly foreign states with whom this country has entered into multi-lateral or bilateral treaty obligations involving mutually agreed and reciprocal commitments. The arrangements are founded on mutual trust and respect. There is a strong public interest in respecting such treaty obligations. As has repeatedly been stated, international co-operation in this field is ever more important to bring to justice those accused of serious cross-border crimes and to ensure that fugitives cannot find safe havens abroad."

14. As my Lord pointed out in the course of submissions, a similar point had arisen in relation to a European Arrest Warrant from Spain in the case of Ruiz and Others v Central Court of Criminal Proceedings No 5 of the National Court of Madrid [2007] EWHC 2983 (Admin); [2008] 1 WLR 2798.
15. At paragraph 37 of his judgment my Lord said this:

"There is no evidence before us that the Spanish court would not faithfully seek to apply Article 6. The position in Spain is no different from that described by Keene LJ in relation to France. As Scott Baker LJ said in Hilali v Central Court of Criminal Proceedings No 5 of the National Court, Madrid [2006] 4 All ER 435, paragraph 77:

'the courts should give great weight to the fact that Spain is a western democracy, subject to the rule of law, a signatory of the European Convention on Human Rights and party to the Framework Decision; it is a country which has and which applies the same human rights standards and is subject to the same international obligations as the United Kingdom. These are surely highly relevant matters which strongly militate against refusing extradition on the grounds of the risk of violating those standards and obligations."

16. Accordingly, Mr Middleton submits, where the burden on the respondent is prima facie satisfied, and no expert or other evidence is called on behalf of the appellant to seek to demonstrate that a trial in the requesting state would not comply with that state's obligations under Article 6 of the Convention, then this court may find that the burden on the respondent has been satisfied. Such was the case in Murtati at paragraph 23.
17. Hungary is, of course, a signatory to the European Convention on Human Rights and so one of the Council of Europe countries referred to in Gomes and Goodyer. It follows that the words of the letter of 12th June must, so it is submitted, be interpreted in the light of the guidance of the house of in Gomes and Goodyer and the dictum of my Lord in Ruiz.
18. The letter of 2nd July refers, in paragraph 2, to "the re-trial". The law to which the letter of 12th June 2009 refers should be read as giving the requested person a right to a re-trial which would be granted if applied for, but a re-trial will not take place unless it is requested.
19. Mr Lloyd distinguishes the case of Da An Chen, referring to paragraph 9 of the judgment in that case, which records that there was evidence of Romanian law, which is specific, and is of a kind that is absent from the two letters of Dr Németh. That is true as a statement of fact. It does not follow that it is a requirement in all cases that such evidence should be put before the court by the judicial authority. Mr Lloyd submits that the words used in the two letters from Dr Németh are equivocal and that the ambiguity should be resolved in favour of the appellant.
20. In my judgment, the submissions of Mr Middleton are to be preferred. Hungary is a Council of Europe country and the two letters that have been addressed to the court by the judicial authority are sufficient prima facie evidence to satisfy the burden of proof in this case. We must construe the letters in the light of Hungary's obligations under the European Convention on Human Rights. If an appellant is to displace such a prima facie case, it is for him to adduce evidence to the contrary. He has not attempted to do that in this case.
21. On the material before us, I cannot conclude that there is a real risk that Hungary will be in breach of its obligations under the Convention. Accordingly, I would dismiss this appeal.
22. LORD JUSTICE DYSON: I agree.
23. MR MIDDLETON: My Lord, I have no instructions as to how the appellant might wish to proceed further. May I reserve my position on the issue?
24. Can I ask the court for legal aid taxation?
25. LORD JUSTICE DYSON: Yes.
26. MR LLOYD: May I ask for one minor correction? I think my Lord said that it was I who tried to distinguish Da An Chen, when in fact it was --
27. MR JUSTICE TUGENDHAT: I am so sorry. It was certainly not you.
28. LORD JUSTICE DYSON: Thank you both very much.