England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/02/2017

Mr Justice Nicol :

1. This is an appeal with permission of Lang J. against the decision of DJ Margot Coleman to order the extradition of the Appellant to Hungary in response to an accusation European Arrest Warrant ('EAW').
2. The EAW, which was issued on 10^th June 2014, sought the return of the Appellant for prosecution for fraud in connection with the grant of a subsidy for building housing. The amount of the subsidy obtained was the equivalent of about £10,300. The offence allegedly took place in September and October 2007.
3. The EAW was certified by the NCA on 27^th June 2015 and the Appellant was arrested on 18^th August 2015. The initial hearing at Westminster Magistrates Court took place the same day. The full extradition hearing occurred on 8^th April 2016. By then, the Hungarian Judicial Authority had provided two sets of further information.
4. The first further information was provided on 5^th November 2015. It said that the Appellant had been interrogated about the offence on 24^th February 2011. She was then told of the offence which she had allegedly committed. She was given the name of a public defender to act for her. On 23^rd January 2013 the prosecutor had postponed the indictment for 5 years and ordered supervised probation. She was required to visit the probation office at regular intervals and to report changes in her family circumstances. The letter from the Judicial Authority said 'This decision was not taken over by suspect Anita Budai in person, it was served by the prosecution office by way of an announcement.'
5. On 21^st October 2013 the probation officer had reported to the prosecutor that Ms Budai could not be located. The prosecutor learned that 5 of her children lived with their grandmother who said that Ms Budai was living in London. Ms Budai's sister informed the prosecutor that she did not keep contact with her children or family.
6. In the same letter the Judicial Authority reported that, during the interrogation of the Appellant in February 2011 she had been told that she was obliged to report to the prosecutor any change in her residential address within 3 days. Ms Budai had signed an acknowledgement of her duty in this regard.
7. According to the Judicial Authority, Ms Budai had absconded. She did not keep contact with her children and she had failed to report her change of address. It said, 'Consequently she is obviously trying to withdraw herself from justice.' On 3^rd October 2014 the prosecution had set aside its decision on the postponement of the indictment.
8. The second letter from the Judicial Authority was dated 25^th November 2015. It gave an assurance as to the minimum space which the Appellant would be allocated if she was held in custody. It also proposed that the Appellant should be temporarily surrendered and held from 1^st February 2016 – 30^th June 2016.
9. Before the District Judge, the Appellant argued as follows:

a. The warrant did not comply with s.2 of the Extradition Act 2003 ('EA 2003'). It was apparent from the further information of 5^th November 2015 that it was only on 3^rd October 2014 that the decision had been taken to terminate the postponement of the prosecution. This must have been the decision on which the EAW was based, but this was not set out in the EAW. The warrant did not therefore satisfy the requirements of s.2.

The DJ rejected this argument. She noted that Box B of the EAW (which identifies the 'decision on which the warrant is based') said the warrant was based on itself which covered the territory of Hungary and 'hence also qualifies as a domestic warrant.' The DJ said that there no evidence to challenge this statement.

b. The Appellant next argued that it would be oppressive by reason of the passage of time for her to extradited and her extradition was barred by EA 2003 s.14. She gave oral evidence to the DJ in which she said that her 6 children by her ex-partner lived with their grandparents. She had come to the UK in 2011. She married her husband in 2012. They had no children. She conceded that she had been interviewed by the police (she thought it had been in 2009) and that she was told she would be charged with fraud and tax evasion. She accepted that she was told that that if she left Hungary she should inform the authorities of her new address. She said that she had complied with this obligation for the last 8 years. She also said that in 2012 or 2013 she had been to the court in Miskolc and gave it her new address. The address of her parents had also been given so that the authorities had these means of contacting her. She also said that she had been back to Hungary on at least 4 occasions. She lived openly in the UK: she had a national insurance number and was registered with a G.P. She knew nothing about being on probation, or any indictment, or its suspension. She had been in touch with her children and her family who said otherwise were lying.

The DJ recorded her findings on the evidence. She accepted the material from the judicial authority 'as it is within a spirit of mutual trust.' The DJ continued,

'I am therefore satisfied that the requested person has been interviewed about this offence, that she was placed on probation and was under an obligation to notify any change of address. I am satisfied that she left Hungary in breach of these obligations and thereby put herself beyond the reach of the judicial authority. I am satisfied that she is a fugitive. I found the requested person to be untruthful about the events which had taken place in Hungary and has tried to minimise her role in the events which are said to have taken place. I accept that a period of time has elapsed between the offence and the initial interview of the requested person but that any delay which has happened is entirely attributable to the actions of the requested person by leaving Hungary and putting herself beyond the reach of the judicial authority which was unable to locate her for a number of years….the RP [Requested Person] is clearly desperate not to be extradited and said what she thought was necessary to avoid that.'

The DJ said that, since the Appellant was a fugitive, she could not rely on passage of time – see Kakis v Cyprus [1978] 1 WLR 779. In any event, the DJ said, she was not satisfied that the RP had shown that there would be any oppression caused to her if she was to be extradited.

c. The third matter invoked by Ms Budai before the DJ was that extradition was barred under EA 2003 s.21A because it would be disproportionate to extradite.

As to this the DJ properly took into account the matters listed in s.21A(3). The DJ said of these,

'Seriousness; the offence of which the RP is accused is akin to benefit fraud. It was a planned and premeditated offence, carried out with others. The value is in excess of £10,000 and that was in 2007. This could never come into the category of offences which could be characterised as trivial.

Likely penalty: a custodial penalty is a very possible outcome in this matter, albeit a suspended sentence. Our own sentencing guidelines would suggest a range of a high community penalty to a significant prison sentence.

Other less coercive measures: the J/A offered a temporary surrender to the RP but the terms of it were unacceptable to the RP. On the basis that the RP has been found to be a fugitive it is difficult to envisage which less coercive measures would be appropriate.'

d. Finally, the Appellant argued that extradition would be contrary to her rights under Article 8 of the ECHR. The DJ rejected that submission. Since that challenge is not pursued on appeal I need say no more about it.

10. On 1^st June 2016 the Court of Justice of the EU gave its decision in Criminal Proceedings against Bob-Dogi Case C-241/15 [2016] 1WLR 4583. This considered the Council Framework Decision 2002/584/JHA on which the EAW system was based and, in particular, the meaning of Article 8(1)(c). In brief the Court held that a valid EAW had to be based on a prior national arrest warrant. However, if there was no reference to such a domestic warrant in the EAW, the requested State was obliged to seek further information from the requesting judicial authority pursuant to Article 15(2) of the Framework Decision. In Goluchowski v District Court in Elbag, Poland [2016] 1 WLR 2665 the Supreme Court gave effect to Bob-Dogi in the UK.
11. Following these decisions, the Judicial Authority again provided further information. The date on which it did so is not clear, but it was forwarded to the Appellant and the Court on 4^th August 2016. It took the form of another version of the EAW which was identical to the original except in Box B. the decision on which the warrant was based was now said to be 'Hungarian arrest warrant…dated 30^th May 2014'. The covering email from the CPS said

'the Judicial Authority have made clear that this document does not invalidate the earlier EAW and is not a re-issued EAW. As such, it is submitted, this is akin to further information under Article 15 of the Framework Decision.'

12. On the Appellant's behalf, Mr Southey QC argues in summary:

i) The EAW was not a warrant for the purposes of EA 2003 s.2 when it was issued. The new version of the EAW provided in August 2016 should not be considered (i) because there is no attempt to explain how it is admissible applying the principles in Szombathely City Court v Fenyvesi [2009] 4 All ER 324 and (ii) because it would be unfair to the Appellant who would be prevented from submitting any evidence in response.

ii) The extradition proceedings are being abused by the Judicial Authority. Whatever the Judicial Authority says, the new version of the EAW is itself an EAW. That means there are now two EAWs in existence covering the same matter. The Judicial Authority has usurped the Court's process.

iii) Extradition is disproportionate since less coercive measures would be possible. The DJ's finding that the Appellant was a fugitive was not one which was reasonably open to her.

13. I will consider these arguments in turn.

The section 2 ground of appeal

14. The further information provided to the Court and the Appellant on 4^th August 2016 is fresh evidence. The well-established principles in Fenyvesi are to be applied in deciding whether it should be admitted. Mr Evans, on behalf of the Judicial Authority says simply that the Bob-Dogi point was not taken in the Magistrates' Court. That was for the understandable reason that the European Court did not give its judgment until after the DJ had given her decision. When the issue was raised in the context of the appeal, the CPS sought and obtained this further information.
15. In my judgment these are very good reasons why this material was not adduced in the Court below. It would be consistent with the Fenyvesi principles for us to admit it now.
16. Mr Southey argues that he should likewise be entitled to submit fresh evidence. He relies on the principle of equality of arms. In abstract terms, that is right. An appellant, just as much as a respondent, can apply to adduce fresh evidence in accordance with the Fenyvesi principles. But that abstract statement of principle is of no assistance. Mr Southey has not applied to adduce any new evidence.
17. In considering an application to adduce fresh evidence, the Court will additionally be alive to any prejudice which the admission of the fresh evidence might cause the opposing party. However, that statement of principle has no application in the present case. There is no evidence that the Appellant has been prejudiced. Since the Appellant has had the further information since August (or possibly September) of last year, it is not a situation where prejudice could be assumed (as might be the case where fresh evidence is served only just before a hearing).
18. In consequence, I would allow the Respondent to adduce this further communication from the Judicial Authority. I agree with Mr Evans that it should be regarded as further information provided by the Judicial Authority pursuant to Article 15 of the Framework Decision.
19. The further information then shows that there was a domestic arrest warrant in existence on 30^th May 2014 and so prior to the issue of the EAW on 10^th June 2014. The requirements of Article 8 of the Framework Decision and s.2 of the EA 2003 were satisfied.
20. In any case, even without the fresh evidence, it is notable that the EAW in its original form, referred at Box F to the domestic warrant which had been issued on 30^th May 2014. In this box the Judicial Authority referred to the provisions in Hungary applying periods of limitation to the prosecution of criminal offences. In this context it said,

'In the case of defendant Anita Budai, the period of limitation was last interrupted by the domestic arrest warrant on 30 May 2014 and by the international arrest warrant No.33 Buy.465/2014/2 issued by the Miskolc District Court on 10 June 2014.'

21. Mr Southey argued that this oblique reference to a domestic warrant was not sufficient. He argued that the CJEU had emphasised the importance of the procedural safeguards which attended the issuing of a domestic warrant and which the EAW scheme was not intended to curtail (see Bob-Dogi at [55]). The Annex to the Framework Decision contained a pro forma for an EAW which Hungary had used in this case. It was in Box B that the Judicial Authority was asked to identify the 'Decision on which the warrant is based'. In this case the original version of the EAW had, as the District Judge found, stated that the EAW was based on itself. That flaw could not be overcome by trawling through the rest of the EAW.
22. I do not accept Mr Southey's response. Bob-Dogi requires that an EAW should in fact be preceded by a domestic warrant. In this case it was. There has been no suggestion that the domestic warrant was deficient or incapable of constituting the foundation for an EAW (setting aside the question as to whether such matters could be litigated in the requested state). In Bob-Dogi [36] the CJEU said the information must be given in Box B. However, it is clear from the remainder of the judgment that this was not the exclusive means by which the Judicial Authority could communicate that the EAW was based on a domestic warrant. As I have already noted, the Court went to hold that if there was no reference to the domestic warrant in the EAW, the Requested State should seek further information from the Judicial Authority as to whether there was a prior domestic warrant. As it happened, the Judicial Authority which had issued the EAW in Bob-Dogi was also Hungary and Box B had been completed in that case in very much the same form as the Hungarian Judicial Authority completed it in the present case – see [20] in the opinion of Advocate-General Bot. The reason why the position in Bob-Dogi was acute was because there had been no reference to the national arrest warrant in the EAW – see for instance the Court's judgment at [67]. But if the EAW can be supplemented by further information (as Bob-Dogi held), I cannot see why any deficiency in Box B cannot be made good by the provision of the necessary information elsewhere in the EAW. That would be consistent with the usual requirement to read the EAW as a whole. Admittedly, this is not best practice and it is not to be encouraged; it could be burdensome or confusing for the authorities of the requested state; however, if the substance of the necessary information is present in the EAW, it would be formalistic to object that it is provided in Box F rather than Box B and, as the Court also stressed in Bob-Dogi, the grounds on which a requested state can refuse to comply with an EAW are very limited.
23. I would reject, therefore, Mr Southey's first ground of appeal.

Abuse of process

24. Mr Southey argues that in substance the document provided by the Judicial Authority is an EAW (however the Judicial Authority itself may characterise it). Since the original version has not been withdrawn, it means that there are now two EAWs covering the same matter. Mr Southey argues that that is impermissible. Each EAW attracts procedural safeguards (e.g. a right to be heard – see Article 14 of the Framework Decision). Furthermore, there is a risk that the original EAW will still be circulating in Europe and that will expose the Appellant to further action. In consequence the Judicial Authority has abused the extradition process.
25. The power to stop extradition proceedings which are an abuse of process is not in doubt. However, the test for whether they are an abuse is a stringent one. The requesting authority has to be shown to have 'usurped' the statutory regime, for example by pursuing it in bad faith or in a deliberate manipulation of the extradition process. Furthermore, this usurpation has to be shown to result in the process being unfair or unjust to the requested person in that he will be unfairly prejudiced at his subsequent challenge to extradition in this country or unfairly prejudiced after surrender – see Belbin v Regional Court of Lille France [2015] EWHC 149 (Admin).
26. Mr Southey argued that the Appellant had suffered or could suffer two forms of prejudice. In the first place she had been deprived of a what he called a first instance decision. If this was a reference to what the Court in Bob-Dogi at [55] had referred to as 'the first stage of proceedings', i.e. the issue of a domestic warrant, it cannot be right. There was in fact a domestic warrant issued on 30^th May 2014. If Mr Southey was referring to a hearing before a district judge, I would not accept that the Appellant has suffered any prejudice. She had a full hearing before DJ Coleman. The s.2 point which is now taken was not taken then (for the good reasons I have already explained). But there would be no further inquiry for a district judge to conduct which cannot be aired on the present appeal.
27. The second type of prejudice which Mr Southey said the Appellant might suffer was from the existence of two forms of an EAW. If she is returned in response to the EAW in its original form, he submitted, there was a risk that at some point in the future, she might be arrested pursuant to the EAW in its amended form.
28. I would characterise any such risk in the UK as fanciful. It is inconceivable that, having executed the EAW in its original form, the National Crime Agency would certify the EAW in its revised form or, if it did, that the CPS would act for Hungary in a second set of extradition proceedings based on the same allegation. However, I accept that in form at least, what the Judicial Authority produced in August 2016 has the appearance of a second EAW.
29. This was a matter of concern to the Court. However, any remote risk that this might lead to difficulties for the Appellant in some other country has been removed by the exchange between the Crown Prosecution Service and the Hungarian Ministry of Justice after the hearing before us. On 26^th January 2017 the CPS wrote asking for a guarantee in these terms (to take effect following the return of the Appellant to Hungary):

'1. The EAW [issued in 2014] will have been executed. 2. The corrected EAW will be withdrawn or cancelled. and 3. There are no outstanding EAWs issued by the Judicial Authority.'

On 30^th January 2017 the Ministry of Justice responded as follows,

'Further to your request dated 26^th January 2017 we guarantee and assure that once the Requested Person has been surrendered to Hungary pursuant to the European Arrest Warrant issued on 10^th June 2014, the corrected EAW giving details of the national arrest warrant will be withdrawn and will have no legal effect. There will then be no outstanding EAW issued by the Judicial Authority for the same offence unless the Requested Person absconds from justice after her return to Hungary.'

30. Accordingly, in my judgment, there is simply nothing of the kind referred to in Belbin on the facts of this case. There has been no usurpation. There has been no manipulation. There is no bad faith. Whether on a proper analysis there is only one or two EAWs seems to me be beside the point. The Appellant has suffered no unfair prejudice in consequence in these extradition proceedings. Mr Southey accepted that if an appropriate assurance was given (as I consider it now has) the Appellant would not suffer unfair prejudice in consequence if returned.
31. I would reject this ground of appeal.

Proportionality

32. EA 2003 s.21A(1)(b) requires a DJ to consider whether the extradition would be disproportionate and, in making that assessment, the court must take into account 'the possibility of the relevant foreign authorities taking measures that would be less coercive than extradition' – s.21A(3)(c).
33. Mr Southey sensibly concedes that, if the DJ was entitled to find that the Appellant was a fugitive, it would be very difficult to persuade the Court that less coercive measures than extradition would be appropriate. However, he argues that the DJ's finding that this Appellant was a fugitive was entirely unsupported by the evidence. He relies on the following:

i) The Appellant was never informed of the charges in this matter.

ii) She was interviewed on 24^th February 2011, but no measures were taken to restrict her personal liberty.

iii) There is no evidence that she was informed of the decision to postpone the indictment and subject her to the supervision of a probation officer.

iv) The decision to reactivate the indictment was taken in October 2014. There is no evidence that the Appellant was aware of this decision.

v) The Appellant was arrested (according to the statement of the arresting officer) at Luton airport as she was about to board a flight to Budapest. She was travelling on her own passport. That was an unlikely course for her to take if she was trying to evade the Hungarian authorities.

34. While the Appellant was not told that she had been charged, she was told (as she accepted in evidence) that she 'would be charged with fraud and tax evasion'. Although there were no restrictions on her personal liberty, she was told that she had to report any change of address within 3 days. She signed a document acknowledging this obligation. Furthermore, and of critical importance in connection with this ground of appeal, the Appellant gave oral evidence before the DJ who therefore had the opportunity (which we do not) to make her own assessment of the Appellant. It was following this evidence that the DJ made her finding that 'the requested person to be untruthful about the events which had taken place in Hungary and has tried to minimise her role in the events which are said to have taken place'. It is also relevant in this context that the DJ concluded 'The RP is clearly desperate not to be extradited and said what she thought was necessary to try to avoid that.' There is ample authority for the proposition that an appellate court will be very slow to disturb a finding of fact which is based in whole or part on the assessment which the lower court made of a witness who gave oral evidence. In my judgment, the points made by Mr Southey come nowhere near establishing that this is a case where we should take that unusual course. The Appellant's attempt to return to Hungary at the time of her arrest may be regarded as rash (and likewise if she had made earlier visits back to Hungary), but that does not render the DJ's conclusion that she was a fugitive irrational.
35. During the hearing Mr Southey resisted the proposition that this ground of appeal collapsed if he was unsuccessful in setting aside the finding that the Appellant was a fugitive. Even so, he submitted, the District Judge should have accepted that less coercive measures than extradition would have been available. The Appellant had offered to return for questioning. The Judicial Authority had unreasonably said that it would agree to this only if she was detained for this purpose and detained for several months. That, Mr Southey submitted, was an unreasonable response as the District Judge should have recognised.
36. If the District Judge's finding that the Appellant was a fugitive is not wrong, then I would also find that she was not wrong to conclude in all the circumstances that less coercive measures were not available and extradition was proportionate.
37. For these reasons, I would reject Mr Southey's third ground of appeal.

Conclusion

38. I have rejected each of the grounds of appeal. It follows that I would dismiss the appeal.

Lord Justice Gross:

39. I agree.