Budai v Hungary Judicial Authority

An appellate court may admit further information or fresh evidence where the requirements identified in Szombathely City Court v Fenyvesi are met and the opposing party suffers no unfair prejudice. An EAW may satisfy the statutory and Framework Decision requirements where, read as a whole, it identifies a prior domestic arrest warrant, even if the information appears outside the prescribed box. Extradition proceedings constitute an abuse of process only where the requesting authority has usurped or manipulated the statutory regime, acted in bad faith, and caused unfair prejudice. Where a requested person is properly found to be a fugitive, less coercive measures may be unavailable and extradition may remain proportionate.

The appellant appealed, with permission, against a District Judge’s order for her extradition to Hungary under an accusation EAW concerning alleged subsidy fraud. She relied on non-compliance with section 2 of the Extradition Act 2003, oppression by reason of delay, disproportionality under section 21A, abuse of process, and article 8 of the ECHR.

After the decision below, the Court of Justice of the European Union decided Criminal Proceedings against Bob-Dogi, requiring an EAW to be based on a prior national arrest warrant. Hungary then supplied further information identifying such a warrant. The appeal principally concerned the admissibility and effect of that information, whether the proceedings had been abused, and whether extradition was disproportionate.

1. Fresh evidence and section 2. The further information supplied after Criminal Proceedings against Bob-Dogi was fresh evidence. Applying the principles in Szombathely City Court v Fenyvesi, there were very good reasons why it had not been adduced below, since the relevant European decision post-dated the District Judge’s ruling. The appellant had received the material months before the appeal and had shown no prejudice. It was therefore admitted as further information under article 15 of the Framework Decision.

2. The further information established that a Hungarian domestic arrest warrant existed before the EAW was issued. The requirements of article 8 of the Framework Decision and section 2 of the Extradition Act 2003 were consequently satisfied. Even without the further information, the original EAW referred elsewhere to the domestic warrant. Although identifying the warrant in the relevant box was preferable, the EAW had to be read as a whole. It would be formalistic to reject it where the necessary substance appeared elsewhere in the document.

3. Abuse of process. The test described in Belbin v Regional Court of Lille France was stringent. Abuse required usurpation or manipulation of the statutory regime, such as bad faith, together with unfair prejudice to the requested person in the extradition proceedings or after surrender. The revised document’s appearance as a second EAW was a matter of concern, but there had been no usurpation, manipulation or bad faith. Hungary’s assurance that the corrected EAW would be withdrawn and have no legal effect removed any realistic risk of prejudice.

4. Proportionality. The District Judge was entitled to find, after hearing and assessing the appellant, that she was a fugitive. The appellate court was therefore slow to interfere with that factual assessment. In those circumstances the District Judge was also entitled to conclude under section 21A of the Extradition Act 2003 that less coercive measures were unavailable and that extradition was proportionate. The article 8 ground was not pursued.

5. All grounds of appeal were rejected and the appeal was dismissed. Lord Justice Gross agreed.

• High Court (Administrative Court): The appeal against the District Judge’s extradition order was dismissed.
• Westminster Magistrates’ Court: District Judge Margot Coleman ordered extradition to Hungary under the accusation EAW.