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
		17 January 2012

1. MR JUSTICE MADDISON: This is an appeal pursuant to section 26 of the Extradition Act 2003 of Istvan Kocsis, against the ruling of District Judge Caroline Tubbs at the City of Westminster Magistrates' Court on 28 October 2011, ordering his extradition to Hungary to be tried by the Pecs City Court, the requesting authority, on two criminal charges.
2. These extradition proceedings are governed by Part 1 of the 2003 Act, Hungary having been designated as a category 1 territory.
3. It is submitted that District Judge Tubbs wrongly decided, pursuant to section 10(2) of the 2003 Act, that the offences referred to in the European Arrest Warrant, issued on 2 February 2011 and certified by the Serious Organised Crime Agency on 27 September 2011, were extradition offences; and that the judge should therefore have ordered the appellant's discharge pursuant to section 10(3). No other point is taken on this appeal.
4. The offences are described in the European Arrest Warrant in the following terms:

"This warrant relates to in total: 2 felonies

1 count of the felony of violation of personal freedom for a malicious motive contravening Section 175(1) and qualified by subsection (3)(a) of the Hungarian Criminal Code.

1 count of the felony of rape contravening Section 197(1) of the Hungarian Criminal Code."

5. The circumstances in which the offences are said to have been committed are also described in the European Arrest Warrant, where the victim of the offences is referred to by name. In the following citation I will refer to her simply by her initials NT:

"In August 2010 victim [NT] together with Istvan KOCSIS left Pecs for England for the purpose of obtaining work abroad. Istvan KOCSIS took [NT] to the Netherlands, where he assaulted the victim and forced her to prostitution against her will, and took the gains thus obtained for himself. In the first two weeks in the Netherlands [NT] was forced to prostitution in the city of Enshede, and then for approximately one month in Hague. On 2 October 2010 the victim managed to escape to Hungary with the help of foreign prostitutes and the police officers of the Amsterdam Airport."

6. The first matter that requires consideration is the factual basis on which the appellant's case should be considered. On the appellant's behalf, Mr Fidler submits that the correct interpretation of the circumstances related in the European Arrest Warrant is that the appellant and NT travelled together from Hungary to England and then at some later time to the Netherlands. Mr Harbinson, on behalf of the respondent, submits that the correct interpretation is that the appellant and NT travelled directly from Hungary to the Netherlands and did not enter the United Kingdom. The passage which I have cited should, submits Mr Harbinson, be read as if the words "but instead" appeared at the beginning of the second sentence.
7. The resolution of this issue affects the application to this case of certain provisions of section 64 of the 2003 Act, which defines what is an extradition offence for the purposes of section 10. This is not an issue which was raised or foreshadowed in the grounds of appeal as I understand them. It is not there suggested, for example, that the District Judge should have found that part of the conduct relied on in the European Arrest Warrant occurred in the United Kingdom. Nevertheless, the issue now having been raised, it is necessary to address it.
8. In the course of her judgment, District Judge Tubbs recited the circumstances of the offences as set out in the European Arrest warrant and a little later said as follows:

"The conduct describes that the defendant allegedly 'took' [NT] to the Netherlands. They had both been in Hungary initially and then they left in August 2010 and the conduct describes the offending behaviour in the weeks following, and up to, 2 October 2010 when she 'managed to escape' to Hungary. There is the clear inference that the defendant formed the intention, and embarked, on this alleged conduct of forcing this woman into prostitution in the Netherlands before they both left Hungary. The conduct all took place within a few weeks. It is an ongoing course of conduct which can properly be described as occurring in the Category 1 Territory even if part of the events occurred in the Netherlands."

9. It is clear to me from this passage that District Judge Tubbs adopted the interpretation of the European Arrest Warrant for which Mr Harbinson contends. The District Judge never referred to the applicant or to NT ever being in the United Kingdom. The general tenor of her remarks is, in my view, consistent with a journey from Hungary directly to the Netherlands. Moreover, in my judgment, the judge was entitled to adopt that interpretation. Certainly it has not been shown that she was wrong to do so. For what it is worth, that is how I myself read the relevant passage in the Warrant when I first saw it. Nowhere in the passage is it said that the appellant or NT ever arrived at, or set foot in, England. One would have expected this to have been said had it been alleged, not least given the reference to the two leaving Pecs for Hungary. In my judgment, the general tenor of the passage points to a journey directly from Hungary to the Netherlands. I propose to consider the remaining submissions in that light.
10. District Judge Tubbs' first finding was that conduct described in the warrant constituted extradition offences within the meaning of section 64(2) of the 2003 Act. This provides as follows:

"The conduct constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied-

(a) the conduct occurs in the category 1 territory and no part of it occurs in the United Kingdom."

11. The remaining provisions do not fall to be considered in the context of this appeal.
12. In relation to section 64(2)(a), Mr Fidler submits on the appellant's behalf, first, that part of the conduct occurred in the United Kingdom and thus that (a) is not applicable. For the reasons that I have explained, that submission I reject, the District Judge having been entitled to find, as she plainly did, that neither the appellant nor NT ever entered England at any relevant time.
13. Moreover, it is submitted on behalf of the appellant that the conduct described did not occur in Hungary, and for that second reason, therefore, (a) did not apply. In my judgment, however, part of the conduct described in the European Arrest Warrant did take place in Hungary. It was in Hungary that the appellant "took" the victim to the Netherlands. In my view, the District Judge was right to infer that the appellant did so with a view to forcing the victim into prostitution in the Netherlands since this is what happened when they arrived there, the original intention having apparently been to travel to England to seek work. Thus, in my judgment, the count of violation of personal freedom for a malicious motive was committed, at least in part, in Hungary.
14. The judge did not expressly find that any alleged rape took place in Hungary but she did so by implication when, at the foot of page 3 of her judgment, she referred to offences in the plural when making the finding "that the conduct constitutes extradition offences within the meaning of section 10 and section 64(2) of the Act." In my judgment, however, the District Judge would have been wrong to conclude that any conduct constituting rape occurred in Hungary. There is no evidence of any relevant act of intercourse in Hungary and the appellant's taking the victim from Hungary to the Netherlands to force her into prostitution there would not, in my view, constitute the offence of rape in Hungary.
15. I conclude, therefore, in relation to section 64(2)(a) that the provisions were met in relation to the first of the two offences referred to in the European Arrest Warrant but not in relation to the second offence, namely the offence of rape.
16. Alternatively, District Judge Tubbs found that if the conduct described occurred outside Hungary it would constitute extradition offences within the meaning of section 64(5) of the 2003 Act. This provides as follows:

"The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied-

(a) the conduct occurs outside the category 1 territory and no part of it occurs in the United Kingdom;

(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom;

(c) the conduct is so punishable under the law of the category 1 territory (however it is described in that law)."

17. In relation to section 64(5)(a), the appellant again submits that part of the conduct concerned occurred in the United Kingdom, but for the reasons I have already explained, I would reject that submission.
18. In relation to section 64(5(b), the District Judge found that the conduct in the Netherlands described in the European Arrest Warrant would amount, if committed in the United Kingdom, to the offence of false imprisonment. She again relied on the allegation that the appellant "took" the victim to the Netherlands and there assaulted her and forced her into prostitution. The judge also relied on the allegation that the victim "managed to escape". In addition, the judge found that the appellant's conduct in the Netherlands would also constitute an offence contrary to section 57 of the Sexual Offences Act 2003, namely trafficking into the United Kingdom for sexual exploitation. These offences carry maximum sentences considerably in excess of the 12 months referred to in section 64(5)(b). Indeed, in my judgment, not only were these conclusions correct but the applicant's conduct in the Netherlands as described in the European Arrest Warrant, if that conduct had occurred in England, would also constitute other offences, including causing a person to engage in sexual activity without consent, contrary to section 4 of the Sexual offences Act 2003, which carries a maximum sentence of 10 years; causing or inciting another person to become a prostitute for, or in the expectation of, gain for himself or a third person, contrary to section 52 of the Sexual Offences Act 2003, an offence carrying a maximum penalty of 7 years; and trafficking within the United Kingdom for sexual exploitation, contrary to section 58 of the 2003 Act, which carries a maximum penalty of 14 years.
19. The District Judge did not refer expressly to the allegation of rape in the context of section 64(5), but in my view the conduct referable to that allegation as described in the Warrant occurred entirely in the Netherlands. It is accepted that such conduct would render the appellant liable to conviction of rape and to imprisonment for life in the United Kingdom.
20. Accordingly, in my judgment, the provisions of section 64(5)(b) were met and it is accepted that the provisions of section 64(5)(c) were also met.
21. In my view, therefore, the provisions of section 64(5) were satisfied in relation to both of the offences specified in the European Arrest Warrant.
22. For the sake of completeness, I should add that submissions have been addressed to us on behalf both of the appellant and the respondent in relation to section 64(4) of the 2003 Act, but having regard to my conclusion in relation to section 64(2) and (5), I do not think it necessary to address the submissions that have been made in respect of section 64(4).
23. I should add that in writing reliance has also been placed, on the appellant's behalf, on article 4(7)(b) of the European Framework Decision, which provides that a judicial authority may refuse to execute a European Arrest Warrant if it relates to offences committed outside the territory of the issuing Member State and the law of the executing Member State does not allow prosecution for the same offences when committed outside its territory. However, in this case, the warrant has in fact been executed, and for the reasons I have sought to explain, the first of the offences in the European Arrest Warrant was committed, at least in part, within Hungary.
24. By way of conclusion, therefore, the District Judge was, in my view, right to conclude in relation to the offence of violation of personal freedom for a malicious purpose, that the provision of section 64(2) and (5) were satisfied; and in relation to the rape, that the provision of section 64(5) were satisfied.
25. Accordingly, in my judgment, the judge was right to order the appellant's extradition in respect of both offences specified in the European Arrest Warrant and I would therefore dismiss this appeal.
26. LORD JUSTICE AIKENS: I agree.
27. MR JUSTICE MADDISON: Thank you very much indeed, Mr Fidler and Mr Harbinson.