Benko v Law Enforcement Division of Veszprem County Court, Hungary

In proceedings under section 20 of the Extradition Act 2003, a requesting state’s judicial authority may establish prima facie that a person convicted in absence is entitled to a retrial complying with the required fair-trial safeguards. Where the requesting state is a Council of Europe country subject to the European Convention on Human Rights, the evidence should be construed in light of its Convention obligations and the mutual trust underlying extradition arrangements. Once a prima facie case is established, the appellant must adduce evidence capable of displacing it. An equivocal reference to a retrial may therefore be sufficient where the surrounding material indicates that the retrial would be available as a legal right if requested.

The appellant challenged an extradition decision concerning convictions for multiple offences. The only remaining issue concerned one conviction obtained in his absence. The District Judge held that, under Hungarian law, the appellant would be entitled to a retrial and to publicly funded representation at that retrial.

Before the Divisional Court, the appellant argued that the evidence showed only that a retrial could be requested, rather than that it would be granted as of right, and did not expressly establish entitlement to free legal representation where the interests of justice required it. The central issue was whether the evidence satisfied section 20(5) and (8) of the Extradition Act 2003.

1. The appeal was dismissed. The appellant had not deliberately absented himself from the relevant proceedings. The remaining questions therefore arose under section 20(5) and (8) of the Extradition Act 2003.
2. The respondent bore the burden of establishing compliance with section 20. The two letters from the Hungarian judicial authority were sufficient prima facie evidence that the appellant would be entitled to a retrial and would enjoy the specified procedural rights, including legal representation and the opportunity to present evidence.
3. The letters had to be construed in the light of Hungary’s obligations under article 6 of the European Convention on Human Rights. Hungary was a Council of Europe country, and the court was entitled to attach weight to the mutual trust and reciprocal obligations underlying the European arrest warrant arrangements. The approach was consistent with Gomes and Goodyer v Government of Trinidad and Tobago, [2009] UKHL 21, and the guidance discussed in Ruiz and Others v Central Court of Criminal Proceedings No 5 of the National Court of Madrid, [2007] EWHC 2983 (Admin).
4. The reference to a retrial being capable of being requested did not prevent the court from concluding that it was a legal entitlement which would be granted if requested. The appellant could displace the prima facie case by adducing evidence to the contrary, but had not attempted to do so. The court could not conclude that there was a real risk of Hungary breaching its Convention obligations.
5. Da An Chen v The Government of Romania, [2006] EWHC 1752 (Admin), was distinguishable. Its specific evidence of Romanian law did not establish a requirement that equivalent evidence must be supplied by the judicial authority in every case.

• District Judge Purdy: On 18 September 2009, held that the appellant was entitled under Hungarian law to a retrial concerning the conviction obtained in his absence, with representation at public expense.
• High Court (Administrative Court): The appeal was dismissed unanimously. Lord Justice Dyson agreed with Mr Justice Tugendhat’s judgment.