MATE KONCZOS v LAW COURT IN GYOR (HUNGARY)

Certification under section 32(4) of the Extradition Act 2003 requires a point of law which is both involved in the decision and of general public importance. Those requirements must be considered separately from the question whether the point ought to be considered by the Supreme Court.

The proposed point must be framed by reference to the legal issue actually decided, or to an identifiable and necessary step in the reasoning. A broader question which was not determined, or a fact-specific question arising only from an unusual combination of circumstances, does not satisfy the statutory test. Where certification is refused, the application for leave to appeal does not arise.

The appellant sought certification of two proposed points of law under section 32(4)(a) of the Extradition Act 2003, and leave to appeal under section 32(4)(b), following the court’s substantive judgment dated 3 December 2021.

The proposed points concerned whether a hearing could constitute the trial resulting in a decision for section 20 of the Act and Article 4a of the 2009 Framework Decision, despite involving no assessment of evidence or merits, and whether non-attendance could be deliberate where attendance would allegedly engage an ECHR fundamental-rights breach.

The central issue was whether those proposed questions were points of law of general public importance involved in the decision.

1. Certification requirements. Section 32(4) of the Extradition Act 2003 requires the court to identify a point of law, involved in the decision, which is of general public importance. That inquiry is distinct from whether the point ought to be considered by the Supreme Court. If certification is refused, the question of leave does not arise.
2. Question concerning deliberate absence and retrial. The decision under challenge concerned a highly specific situation. The appellant had initially been convicted in his absence, later invoked a right to retrial while facing extradition, and freely chose not to attend the retrial hearing. The court had decided that his deliberate absence could make the retrial right relevantly foregone, notwithstanding that the hearing involved no assessment of evidence or merits. That fact-specific question was a question of law, but was not one of general public importance.
3. Question concerning prison assurances and free will. The judgment had answered no to the specific question whether the absence of a prison assurance prevented the appellant’s non-attendance from being deliberate. The broader formulation proposed by the appellant had not been determined and therefore was not involved in the decision.
4. The suggested points had to be framed closely by reference to the actual legal questions decided or necessary to the reasoning. The applications for certification and leave to appeal were refused.

• High Court (Administrative Court): In [2021] EWHC 3287 (Admin), the substantive extradition appeal was determined. The present court refused certification under section 32(4)(a) of the Extradition Act 2003 and consequently refused leave to appeal under section 32(4)(b).