Szombathely City Court & Ors v Fenyvesi & Anor

On an appeal under section 29(4) of the Extradition Act 2003, evidence is unavailable at the extradition hearing only if it did not then exist, or was neither at the party’s disposal nor obtainable with reasonable diligence. Evidence is not unavailable merely because the party failed to adduce it.

The evidence must also be decisive: the court must be satisfied that it would have caused the extradition judge to decide the relevant question differently. Although section 3 of the Human Rights Act 1998 may exceptionally permit latitude for a defendant to avert a Convention breach, that latitude does not benefit an issuing judicial authority. Admission of evidence requiring a full appellate rehearing will be exceptional.

Three Hungarian judicial authorities appealed against a district judge’s discharge of two respondents under sections 13 and 21 of the Extradition Act 2003. The district judge had found that extradition under six European Arrest Warrants would expose the respondents, who were Roma, to race-related prejudice, inhuman or degrading treatment and a flagrant denial of a fair trial.

The authorities sought to rely on approximately 450 pages of evidence which had not been adduced at the extradition hearing. They accepted that their appeal could not succeed without that material and that its fair consideration would require an adjournment and a full rehearing. The central issue was whether the evidence satisfied the strict conditions in section 29(4) for an appeal relying on evidence unavailable at the extradition hearing.

1. The appeal was dismissed and the application to admit the fresh evidence was refused. Section 29(4) of the Extradition Act 2003 imposed two strict conditions. The evidence must have been unavailable at the extradition hearing and must have been such that, if adduced, it would have caused the judge to decide the relevant question differently.

2. Evidence was unavailable only if it did not exist at the time of the extradition hearing, or was not at the party’s disposal and could not have been obtained with reasonable diligence. Evidence which was at the party’s disposal, or which reasonable diligence would have secured, was available even though it was not adduced. A party relying on unavailability should normally serve a witness statement explaining the circumstances.

   The court explained the approach in Miklis v Lithuania [2006] EWHC 1032 (Admin). Any suggestion of a general discretionary latitude could not be reconciled with the statutory language. The restrictive construction accorded with the legislative objective that European Arrest Warrant proceedings be resolved urgently.

3. The second condition required the fresh evidence to be decisive. It was insufficient that the evidence might afford a ground of appeal or might materially influence the result. The court had examined the proposed material sufficiently to conclude that it might influence the outcome, but could not conclude that the district judge would have decided differently.

4. Section 29(4)(a) was a condition for allowing the appeal rather than an independent admissibility rule, as explained in The District Court of Slupsk v Piotrowski [2007] EWHC 933 (Admin). An appellate court might inspect material contingently before ruling upon it. It need not incur the time and expense of doing so where the evidence was plainly available below. Admission requiring a full rehearing in the High Court would be exceptional.

5. Section 29 did not permit remittal to the district judge for reconsideration of an issue already decided on additional evidence. Although rule 52.11(1)(b) of the Civil Procedure Rules technically permitted a full rehearing, such a course would ordinarily conflict with the intended speed and structure of extradition proceedings.

6. Section 3 of the Human Rights Act 1998 might exceptionally modulate section 29(4) for a defendant where necessary to prevent a Convention breach. That latitude did not extend to an issuing judicial authority. Bogdani v Albanian Government [2008] EWHC 2065 (Admin) was distinguishable because it concerned clarification of foreign law which the court had previously contemplated receiving.

7. The authorities had provided no explanation for failing to adduce the material despite having ample notice and opportunity. Nor had they established that it would be decisive. Both statutory conditions therefore failed.

• High Court (Administrative Court): In Szombathely City Court & Ors v Fenyvesi & Anor [2009] EWHC 231 (Admin), the court refused to entertain the proposed fresh evidence and dismissed the appeal.
• City of Westminster Magistrates’ Court: District Judge Purdy discharged the respondents under all six European Arrest Warrants after finding that sections 13 and 21 of the Extradition Act 2003 were satisfied. The ruling was given on 17 October 2008; no citation is stated.