Szilard Bellencs v Hungary

For dual criminality, the court compares the conduct particularised in the extradition warrant with domestic criminal offences. The conduct must establish every essential element of the domestic offence, including the required mental element; a possible inference is insufficient where the facts do not compel it.

A document containing false information does not necessarily constitute a false instrument under the Forgery and Counterfeiting Act 1981. Under section 9(1)(g), the document must tell a lie about the circumstances of its making. Further, the warrant must show an intention to induce acceptance of the instrument as genuine and thereby cause prejudice.

Unauthorised access under the Computer Misuse Act 1990 requires the statutory requirements concerning entitlement, consent and knowledge to be established.

This was an appeal under section 26 of the Extradition Act 2003 against a District Judge’s order for the appellant’s extradition to Hungary. The appeal concerned five offences in a conviction European Arrest Warrant: four alleged forgery offences involving false names and addresses on postal receipts, and one alleged copyright-related computer offence.

Permission to appeal was granted only on whether those offences were extradition offences under sections 10 and 65 of the 2003 Act. The central questions were whether the described conduct would constitute offences under sections 1 or 3 of the Forgery and Counterfeiting Act 1981, or section 1 of the Computer Misuse Act 1990.

1. Appeal allowed. The respondent failed to establish under section 65(3)(b) of the Extradition Act 2003 that the conduct described in offences 14, 15b, 16b, 17b and 26 would constitute offences under domestic law. Those offences were therefore not extradition offences, and the appellant was entitled to be discharged in respect of them.
2. Under the conduct test explained in Norris v Government of the United States of America [2008] UKHL 16, the court considered the conduct particularised in the warrant and further information, rather than the legal elements of the Hungarian offences. The conduct had to compel the inference that the necessary domestic mens rea existed, as explained in Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin), Cleveland v USA [2019] EWHC 619 (Admin) and Balaz v Slovenia [2021] EWHC 1862 (Admin).
3. The forgery offences failed on two independent grounds. First, the receipts were not shown to be false instruments under section 9(1)(g) of the Forgery and Counterfeiting Act 1981: although they contained false information about the sender’s name and address, they did not lie about the circumstances in which they were made. Secondly, the described intention to conceal identity and avoid detection did not establish an intention to induce acceptance of the receipts as genuine and thereby cause prejudice within sections 1, 3 and 10 of the 1981 Act.
4. The court did not determine whether section 9(1)(g) could apply where the alleged falsity concerned a non-existent person, or whether section 9(1)(h) was the exclusive route in such circumstances. The point was unnecessary to the decision.
5. The copyright offence also failed. Although copying the programmes involved causing a computer to perform a function with intent to secure access, the respondent had not shown beyond reasonable doubt that access was unauthorised under sections 1(1)(b) and 17(5) of the Computer Misuse Act 1990, or that the appellant knew this. Physical control of the computer was not enough; entitlement and consent had to relate to the relevant programme or data and the kind of access obtained.
6. The court expressed no definitive view on whether a copyright owner could, in some circumstances, be entitled to control access under section 17(5). The other convictions were not affected, and the appellant was to be extradited in relation to them.

1. High Court (Administrative Court) — appeal under section 26 of the Extradition Act 2003 allowed in respect of five offences; those offences were held not to be extradition offences.
2. District Court — extradition ordered on 13 October 2021. The citation was not stated in the judgment.