QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| GYULA PETROVICS
|- and -
|PROSECUTOR GENERALS OFFICE OF HUNGARY
Alexander dos Santos (instructed by the Crown Prosecution Service) for the Respondent
Hearing date: 11th November 2020
Crown Copyright ©
MR JUSTICE FORDHAM :
Mode of hearing
The Appellant's case based on section 25 and Article 8
Would the hardship to the Appellant resulting from extradition, by reason of his medical condition, make extradition oppressive?
This reflects the statutory language in section 25 and is adapted from the well-known formulation of oppression from the section 14 'oppression by reason of the passage of time' context (Kakis v Government of the Republic of Cyprus  1 WLR 799 at 782: cited in Magiera at paragraph 29). The following points were also common ground: that there must be a 'nexus' between the hardship and the extradition; that oppression requires regard to be had to all the relevant circumstances, including the fact that extradition is ordinarily likely to cause stress and hardship, neither of those being sufficient (Dewani v Government of the Republic of South Africa  EWHC 842 (Admin) at paragraph 73: Magiera at paragraph 28); that "the court has to form an overall judgment on the facts of the particular case" and "a high threshold has to be reached in order to satisfy the court that a requested person's physical or mental condition is such that it would be oppressive to extradite them" (Turner v Government of the USA  EWHC 2426 (Admin) at paragraph 28); and that "it will ordinarily be presumed that the receiving state within the European Union will discharge its responsibilities… in the absence of strong evidence to the contrary… In the absence of evidence to the necessary standard that calls into question the ability of the receiving state to discharge its responsibilities or a specific matter that gives cause for concern, it should not be necessary to require any assurances from requesting states within the European Union. It will therefore ordinarily be sufficient to rely on the presumption" (Wolkowicz v Polish Judicial Authority  EWHC 102 (Admin) at paragraph 10(iii)). It was also common ground that, in assessing the question of oppression, the court considers the comparison between the circumstances as they would be following extradition and the circumstances as they would be following discharge. So, the case law does not sanction an approach which posits a comparison between extradition to face custody in the requesting state and the serving of an equivalent custodial sentence in the United Kingdom: I accept Ms Townshend's submission that if such a comparison were in principle a good idea, somebody in the caselaw would surely have thought of it and said so by now.
The Respondent's propositions (1) to (3)
Propositions (1) and (3)
i) The first expert report recorded: "[the partner] told me that [the Appellant] has never been able to obtain gainful employment… He never worked". That is very striking. This links to a description of a need for "support to maintain his daily functioning", "since his early childhood", with his "historically limited social and occupational skills", as a "lifelong condition".
ii) At the oral hearing on 18 July 2018 the Appellant gave evidence through an interpreter and was cross-examined. He adopted his proof of evidence. A statement from his mother was also placed before the court and relied on. The District Judge recorded the evidence. That included that the Appellant had worked on the family farm in Hungary between leaving school age 15 until he was 23 years old when he went to prison. Having served a four-year sentence for burglary he was released and continue to work on the family farm. He came to the United Kingdom in April 2013 with his partner. He then soon found work and was working as a kitchen porter before being arrested in December 2017. After release in July 2018, in the weeks before the hearing on 18 July 2018, he was working as a cleaner in a restaurant and helping to look after his mother. Her statement explained that the Appellant was currently working night shifts so as to be able to help his mother during the day. The Appellant was asked questions at the oral hearing and the District Judge recorded in the judgment the contents of key questions. The Appellant told the District Judge that as July 2018 he was working as a cleaner for 3 hours a day 3 days a week. That was the evidence before the court.
iii) Based on this evidence, and having heard live evidence from the Appellant with cross-examination, the District Judge found as a fact that: (1) the Appellant has worked in the United Kingdom since he arrived in April 2013; (2) that he currently works 3 days per week as a cleaner in a restaurant; and (3) that he cares for his mother. The District Judge also took into account in the balance sheet as a factor against extradition that the Appellant was employed as a cleaner and would lose his employment if extradited.
iv) The District Judge's judgment was never brought to the attention of the expert. Dr Agarwal was not made aware of the fact that the Appellant had given oral evidence in Court proceedings and was cross-examined on 18 July 2018. Dr Agarwal was not made aware of the evidence relating to the Appellant's employment history, which the District Judge had accepted and which had underpinned findings of fact, on points raised by the Appellant as points counting against extradition. Nobody has ever told Dr Agarwal any of this. And all of this is notwithstanding that Dr Agarwal was making explicit, from 4 March 2020 onwards, his complete reliance on the factual narrative that he described expressly and attributed to what he had been told by the Appellant's partner.
v) This problem permeates and persists and Dr Agarwal was not put in the picture when asked to provide his addendum report dated 30 October 2020. Ms Townshend accepts, rightly, that on this appeal there are findings of fact by the District Judge which she is not able to impugn: that the Appellant has an employment history and was working as recently as 18 July 2018.