VIKTOR TOTH v HIGH COURT OF SZOLNOK, HUNGARY

On an appeal under section 27 of the Extradition Act 2003, fresh evidence permits discharge only where it would have required the extradition judge to decide a relevant question differently. The evidence must be genuinely unavailable at the original hearing and decisive, rather than merely capable of affecting the Article 8 balance.

Article 8 factors remain fact-sensitive. A bail curfew may be relevant to proportionality, but its weight depends on its duration, restrictions and practical effect. Delay may reduce the public-interest weight in extradition and increase the impact on private and family life, subject to the circumstances, including any contribution by the requested person to the delay.

The appellant challenged a District Judge’s order of 16 October 2018 for his extradition to Hungary to serve a three-year immediate prison sentence for embezzlement and filing a false tax return. Permission to appeal was granted on an Article 8 ECHR ground. The appellant sought to adduce evidence about changed family, employment and financial circumstances, his daughter’s reliance on him, and a prolonged bail curfew.

He also sought permission to add a section 2 ground concerning the status of the Hungarian courts as judicial authorities. That amendment was permitted, but the ground was stayed pending consideration of a lead permission application. The central issues were whether the new evidence satisfied section 27 and whether the District Judge had erred in the Article 8 balancing exercise.

1. Appeal dismissed on the Article 8 ground. The proposed section 2 ground was allowed to be added but stayed. The typographical error in the District Judge’s account of the date of the tax offence was immaterial when the judgment was read as a whole.
2. Section 27 requires fresh evidence either not to have existed at the extradition hearing or not to have been available to the party despite reasonable diligence. It must also be decisive: the court must be satisfied that it would have caused the extradition judge to decide the relevant question differently and order discharge.
3. The later evidence concerning employment, accommodation, finances, adult children and a prolonged electronic-tag curfew did not meet that threshold. The family position was materially better than it would have been had imprisonment occurred earlier, and the curfew did not prevent evening outings. Its practical effect differed from the more restrictive curfew considered in Danfelds.
4. Article 8 balancing is fact-sensitive. Celinski cautions against treating decisions in other extradition cases as laying down general principles. A curfew can be a relevant interference with liberty and form of punishment, as explained in Bicioc, but its weight depends on the circumstances.
5. The District Judge did not err by failing to give separate weight to delay. Delay was not materially advanced at the original hearing; the Hungarian trial had occurred in 2016; the foreign sentence was not for this court to revisit; and the appellant’s fugitive status had contributed to the delay. The public interest in extradition, the seriousness of the offending and fugitive status outweighed the private and family-life factors.
6. The appellant’s appeal was dismissed.

• High Court (Administrative Court): the appeal against the District Judge’s extradition order of 16 October 2018 was dismissed on the Article 8 ground. Permission to amend the grounds to add a section 2 issue was granted, but that issue was stayed.