Miklos Orsos v Tribunal of Pecs Hungary

For an appeal under section 26 of the Extradition Act 2003, fresh evidence must have been unavailable at the extradition hearing and capable of changing the decision so as to require discharge. Under section 25, oppression requires a high threshold. The court must assess whether the requested person’s mental condition creates a substantial risk of suicide, whether the condition removes the capacity to resist the impulse, and whether appropriate preventive arrangements exist. For an EU requesting state that is party to the ECHR, it is ordinarily presumed that the state will discharge its responsibility to prevent suicide unless strong evidence rebuts the presumption. A risk that self-harm may inadvertently become life-threatening, without a substantial risk of suicide, is insufficient.

The appellant appealed against a Westminster Magistrates’ Court decision ordering his extradition to Hungary on four arrest warrants. He relied on section 25 of the Extradition Act 2003, contending that fresh psychiatric evidence showed that extradition would be unjust or oppressive because of the risk of suicide or fatal self-harm.

The District Judge accepted evidence that the appellant had emotionally unstable personality traits, but found no substantial risk of suicide and concluded that any self-harm would result from voluntary acts. The High Court considered whether the further psychiatric report and related evidence satisfied the statutory conditions for fresh evidence and, if so, whether they would have altered the section 25 assessment.

1. Fresh evidence. The further witness statement was refused. Section 27(4) of the Extradition Act 2003 establishes the conditions for allowing an appeal, but its policy informs the court’s inherent jurisdiction over procedure. Evidence is not fresh where it existed at the hearing and could have been obtained with reasonable diligence. It must also have been decisive, in the sense that it would have required the appellant’s discharge.
2. Section 25 test. The words unjust or oppressive bear the meaning identified in Kakis v Cyprus. The governing approach, summarised in Turner v Government of USA and approved in Polish Judicial Authority v Wolkowicz, requires an overall judgment, a high threshold, assessment of the link between mental condition and suicide risk, consideration of capacity to resist the impulse, the extent of the risk notwithstanding preventive steps, the adequacy of arrangements in the receiving state, and the public interest in extradition.
3. Application. The appellant had a mental condition for section 25 purposes, namely a likely emotionally unstable personality disorder. However, Dr Reid’s opinion remained unchanged and did not demonstrate a substantial risk that the appellant would commit suicide. The evidence showed a risk of impulsive self-harm, with some possibility of inadvertently life-threatening injury, rather than a substantial risk of a genuine and concerted suicide attempt. The fresh evidence did not alter the conclusion that he retained capacity to restrain himself.
4. Preventive measures and disposition. The presumption that Hungary would discharge its responsibility to prevent suicide had not been rebutted. The appeal was dismissed. The court ordered that the appellant’s medical reports accompany him in detention.

• High Court (Administrative Court) — The appeal under section 26 of the Extradition Act 2003 against the Westminster Magistrates’ Court decision of 30 August 2023 was dismissed.