Asztaslos v Szekszard City Court, Hungary

For a Part 1 European arrest warrant, the court must examine the warrant as a whole to determine whether it is an accusation warrant and whether surrender is sought for prosecution rather than investigation. The statutory expressions “accused” and “for the purpose of being prosecuted” are not terms of art. They require a purposive, cosmopolitan construction which accommodates different national procedures and an intense focus on the facts. Extrinsic factual or expert evidence is a last resort and should be discouraged, particularly on appeal. Where the warrant clearly identifies an accused person and unequivocally seeks surrender for prosecution, later questioning under the requesting state’s procedure does not alter that purpose. Conduct described as abuse of a minor may satisfy co-criminality where, if committed in England, it would constitute cruelty to a child.

This was a statutory appeal under section 26 of the Extradition Act 2003 against a District Judge’s order for the appellant’s extradition to Hungary to face trial for sexual assault on a child and two offences of abuse of a minor. The appellant had been removed to Hungary by administrative error while the appeal was pending, but the court first addressed the merits by agreement.

The central issues were whether the European arrest warrant was issued for the purpose of prosecution within section 2(3)(b), rather than merely investigation or questioning, and whether the alleged abuse offences were extradition offences under section 64.

1. Appeal dismissed. The court dealt with the merits and did not determine whether the appellant’s erroneous removal had extinguished his statutory right of appeal.
2. Part 1 of the Extradition Act 2003 must be construed consistently with the Framework Decision. The expressions “accused” and “for the purpose of being prosecuted” are not terms of art. Whether they are satisfied is a question of fact requiring a purposive and cosmopolitan approach, rather than exclusive reference to English criminal procedure. The court must focus intensely on the facts of each case.
3. The court must inspect the European arrest warrant as a whole. It must decide whether the warrant is an accusation or conviction warrant, whether the requested person is accused, and whether surrender is unequivocally sought for prosecution. Failure to delete the inapplicable alternative on the warrant’s front page does not itself invalidate the warrant.
4. Extrinsic factual or expert evidence should be considered only where the warrant is equivocal. It should not be used to create ambiguity where the warrant is clear. On appeal, such evidence should not be admitted without exceptional reasons and a good explanation for its absence below.
5. The warrant identified the appellant as an accused person, described the alleged offences and stated circumstances showing that surrender was sought for prosecution. The Hungarian documents did not change that conclusion. Interviewing the appellant after return was part of the Hungarian criminal procedure and did not establish that surrender was sought only for investigation.
6. For section 64(3), the court did not need to examine the detailed text of Hungarian law. The relevant question was whether the alleged conduct would constitute an offence under the law of the relevant part of the United Kingdom. The alleged abuse, including wilful assault, ill-treatment or neglect likely to cause unnecessary suffering or injury to health, would amount to cruelty to a child under section 1 of the Children and Young Persons Act 1933. The co-criminality requirement was therefore met.

1. District Judge Evans: on 2 September 2009 ordered the appellant’s extradition to Hungary.
2. High Court (Administrative Court): dismissed the statutory appeal under section 26 of the Extradition Act 2003. The court left the jurisdictional effect of the appellant’s prior removal undecided.