Patricia Lakatos v Four Hungarian Judicial Authorities

In a Part 1 extradition appeal, dual criminality depends on the conduct described in the warrant, rather than the requesting state’s offence label. Court-ordered, electronically monitored house arrest may amount to lawful custody for the common law offence of escape where the person is confined and cannot leave without permission. The assessment is fact-sensitive and does not mean that every breach of an electronically monitored bail curfew is escape.

For conviction in absence, a clearly guaranteed right to retrial satisfies Extradition Act 2003, section 20(5), even if deliberate absence is not established. Convention objections require the applicable real-risk thresholds to be met on the individual facts. General rule-of-law concerns and personal characteristics, without evidence of a specific individual risk, were insufficient.

The appellant challenged an extradition order made by District Judge King on 23 March 2023 concerning four Hungarian Part 1 warrants. The warrants concerned one conviction imposed in the appellant’s presence, one conviction imposed in her absence, and two accusations.

The appeal raised dual criminality in relation to alleged escape from court-ordered house arrest; retrial rights following conviction in absence; alleged risks under Articles 3, 5 and 6 of the Convention arising from Hungary’s rule-of-law position and the appellant’s Roma ethnicity and bisexuality; and proportionality under Article 8.

The High Court had to determine whether the district judge had been wrong, and whether the appeal should be assessed afresh where fresh evidence or a change in the law was relied upon.

1. Appeal dismissed. The court treated the procedural order granting permission for judicial review as a slip and treated it as permission to appeal under Part 1 of the Extradition Act 2003.

2. For dual criminality, the court must examine the conduct described in the warrant, not the requesting state’s legal label. The conduct in Warrant 3 showed a court-ordered 24-hour electronically monitored curfew, confinement to a specified address, a prohibition on leaving without permission, and removal of the monitoring device. Those facts were sufficient to establish lawful custody under the criteria identified in Dhillon. The appellant’s conduct would therefore amount to escape from lawful custody in England and Wales. Estevez was distinguishable because the warrant there lacked sufficient detail about the conditions and degree of control involved. The conclusion was confined to the particular facts and did not make every breach of an electronically monitored bail curfew criminal.

3. In relation to conviction in absence, the court held that the evidence guaranteed an absolute right to retrial under section 20(5). Box D of the warrant confirmed the right to retrial, and further information stated that the Hungarian legal system guaranteed that right and that the appellant could apply at any time. This was materially different from Merticariu, where the information did not establish an entitlement to retrial.

4. The court added that, had it been necessary to decide deliberate absence, the appellant’s conduct would have satisfied the approach in Bertino. Escaping while subject to proceedings, considered with the arrest, interview and coercive measures, was sufficiently extreme to support an unequivocal waiver despite the absence of proof that she knew the trial date.

5. Under sections 21 and 21A, the Convention thresholds were not met. Articles 5 and 6 required a real risk of a flagrant denial of justice; Article 3 required substantial grounds for believing in a real risk of prohibited treatment. A strong but rebuttable presumption applied to a Council of Europe and EU member state. Hungary satisfied Stage 1 of the Aranyosi analysis, but the appellant had not shown a specific individual risk at Stage 2. The general material and evidence concerning Roma and LGBTQ+ persons did not establish such a risk.

6. Since the other grounds failed, there was no basis for finding extradition disproportionate under Article 8. The same conclusion would have followed even if Ground 1 had succeeded.

High Court (Administrative Court): appeal against the extradition order made by District Judge King on 23 March 2023. The appeal was dismissed.