Kiss v Municipal Court of Miskoic Hungary

Extradition may become abusive where subsequent events create a real risk that the requested person will ultimately serve less than the statutory minimum sentence. The executing court has an inherent power to prevent abuse of its process. In accusation cases, proportionality must be assessed by reference to the seriousness of the alleged conduct, the likely penalty, the possibility of less coercive measures, the passage of time and the requesting authority’s conduct. The court must assess the position at the date of the appeal, including material fresh evidence. Where extradition is disproportionate, the statutory appeal provisions require the requested person’s discharge.

The appellant appealed against an extradition order made by District Judge Blake in the Westminster Magistrates’ Court on 19 January 2018. Two European arrest warrants were in issue.

The first was a conviction warrant relating to a Hungarian sentence imposed for two offences. One conviction had already been discharged because the conduct was not criminal in England and Wales. Fresh information indicated that the remaining sentence would be disaggregated and might fall below four months, with credit for time spent under restrictive bail conditions.

The second was an accusation warrant concerning an alleged burglary involving goods worth about £400. The alleged conduct occurred in 2011. The Hungarian authorities had previously known of the allegation, had interviewed the appellant while he was imprisoned in Hungary, and had allowed him to return to England.

The central issues were whether extradition under the first warrant was abusive or contrary to the statutory minimum-sentence policy, and whether extradition under the second warrant was proportionate.

Appeal allowed; appellant discharged and extradition order quashed in relation to both European arrest warrants.

1. In relation to the conviction warrant, the court considered Extradition Act 2003, section 65. The statutory language was not an exact fit because the existing one-year aggregate sentence would be disaggregated and the appellant resentenced. The possibility that the resulting sentence might be below four months was not, by itself, a conclusive answer under section 65(3)(c).

2. Nevertheless, the executing court must guard against abuse of its process. Applying the principle recognised in Zakrzewski v Regional Court in Lodz, Poland [2013] UKSC 2, the court held that there was a real risk that, after credit for more than two years of restrictive supervision in England, the appellant would ultimately serve less than four months. Extradition would therefore be contrary to the policy of the Act.

3. Extradition under the first warrant was also plainly disproportionate. The offence was committed more than eight years earlier, concerned supply of a substance whose possession was not itself criminal in Hungary, and the appellant had lived in England throughout the intervening period. The decision was based on the circumstances existing in October 2019 and on fresh evidence, without criticism of the district judge’s decision when made.

4. For the accusation warrant, section 21A of the Extradition Act 2003 required consideration of proportionality, including the seriousness of the conduct, the likely penalty and the availability of less coercive measures. The district judge had overstated both the gravity of the alleged offending and the likely penalty. The alleged burglary involved a person who had lawful access to a subdivided apartment, goods worth about £400, and no aggravating features. A custodial sentence would have been highly unlikely in England.

5. The substantial passage of time, the appellant’s settled and productive life in England, the absence of subsequent convictions, and the Hungarian authorities’ earlier opportunity to prosecute materially strengthened the conclusion that extradition was disproportionate. Under section 27, the appeal therefore had to be allowed and the requested person discharged.

• High Court (Administrative Court): substantive appeal from an extradition order made by District Judge Blake in the Westminster Magistrates’ Court on 19 January 2018. The appeal was allowed and the appellant was discharged; the extradition order was quashed in relation to both warrants.