Hnus v Nyiregyhaza District Court (Hungary)

In an extradition appeal raising double jeopardy or the same acts, the court must establish the factual basis on which the earlier English sentence was imposed. A prosecutor’s case summary may differ materially from the facts actually taken into account by the sentencing judge. Where the English sentence took account of facts alleged in the requesting state, a second prosecution on those facts may arguably constitute an abuse of process under section 12. The court should obtain the official sentencing transcript before deciding the issue. A question concerning an appellant’s capacity to pursue an appeal while unlawfully at large may require separate consideration.

The applicant sought permission to appeal, and if granted pursued a substantive appeal, against an extradition order made by District Judge Coleman on 11 May 2018. One ground concerned prison conditions in Hungary and assurances, but that issue had effectively been addressed by Oleksandry Zabolotnyi [2019] EWHC 934, subject to a possible further appeal.

The remaining issue was whether extradition was barred by double jeopardy or the same acts. The applicant had been convicted in England and had served a 12-month sentence for an offence said to have a connection with the Hungarian allegations. The central question was whether the English sentencing process had taken account of the same facts.

1. The hearing was adjourned. The court could not fairly or justly determine the double-jeopardy or same-acts issue without the official transcript of the Isleworth Crown Court sentencing hearing on 6 December 2017.
2. Section 12 was engaged where the requesting state sought to prosecute an offence whose facts were so closely related to an offence already prosecuted that a second prosecution would constitute an abuse of process. The court relied on the formulation in Heathfield [2017] EWHC 2602 (Admin).
3. The transcript was necessary to establish the basis on which the English prosecution opened the case, the defendant’s submissions, and, most importantly, the sentencing judge’s remarks. The Department for Work and Pensions prosecution case summary could not safely substitute for that evidence.
4. If the English sentence had taken account of facts alleged to have occurred in Hungary, it was at least arguable that extradition to face prosecution concerning those same facts would amount to an abuse of process.
5. The judge also directed that the applicant’s apparent unlawful release and absence from communication raised questions about his status and capacity to pursue the appeal. That issue was left for research and consideration at the next hearing if he remained unlawfully at large.
6. The matter was adjourned, not part heard, pending production of the transcript. A transcript of the judgment was directed to be prepared at public expense.

• District Judge Coleman: made an extradition order on 11 May 2018.
• High Court (Administrative Court): listed a rolled-up hearing for permission and, if granted, the substantive appeal. The court adjourned the matter pending an official transcript of the English sentencing hearing.