Izabella Baracz v Hungarian Judicial Authority

On an appeal concerning fresh evidence, the appellant must show that the evidence was unavailable, or could not reasonably have been obtained, at the extradition hearing, that it would have altered the decision, and that the altered decision would have required discharge under Extradition Act 2003. In an Article 8 extradition case, the court must balance family life against the weighty public interest in extradition. There is no exceptionality test, but extradition will ordinarily prevail unless the consequences for family life are exceptionally severe. The best interests of affected children are a primary consideration. A balance sheet is an appropriate method of making the competing factors explicit.

The appellant was wanted by Hungary under an accusation warrant concerning fraud and a conviction warrant relating to a sentence of four years and six months’ imprisonment for drug offences. The District Judge ordered extradition and rejected Article 8 arguments based on the appellant’s family circumstances and health.

Permission to appeal was granted on the basis that fresh evidence had emerged after the extradition hearing. The new material concerned changes in the care arrangements for the appellant’s children and granddaughter, and a social-worker report under section 7 of the Children Act 1989. The central issue was whether the fresh evidence was decisive for the purposes of the statutory appeal test and showed that extradition would be disproportionate.

1. Appeal dismissed. The fresh evidence was not admitted because the statutory conditions for admitting fresh evidence under section 27(4) of the Extradition Act 2003 were not satisfied.
2. Under section 27(4), an appeal may succeed where an issue or evidence was not raised or available at the extradition hearing, the issue or evidence would have caused the District Judge to decide a question differently, and that different decision would have required the appellant’s discharge. The evidence concerning the appellant’s granddaughter was plainly unavailable earlier, but the evidence had also to be decisive.
3. The Article 8 assessment required a balance between the appellant’s and her family members’ private and family lives and the public interest in extradition. There is no exceptionality test. The public interest includes bringing accused persons to trial, requiring convicted persons to serve sentences, honouring extradition obligations and preventing safe havens. Its weight varies with the seriousness of the offending and may be reduced by delay.
4. The best interests of affected children were a primary consideration. The balance should be made explicit by identifying factors for and against extradition, as in a balance sheet. The court considered the emotional impact on Tamas and the significant consequences for Jazmin, for whom the appellant was the primary carer. Those interests attracted substantial weight, although Jazmin would remain with her father and alternative support could potentially be arranged.
5. The Article 8 balance had to be assessed across both warrants together. The public interest remained very weighty, particularly because of the outstanding four-year-six-month sentence, the seriousness of the offending and the appellant’s lack of lawful immigration status. The fresh evidence increased the weight on the family side but did not make the difference decisive. Extradition was not disproportionate.

• High Court (Administrative Court): the District Judge ordered extradition on 18 January 2023. Permission to appeal was granted by Cavanagh J on 29 February 2024. The High Court dismissed the appeal and refused to admit the fresh evidence under section 27(4) of the Extradition Act 2003.