Atilla Berki v Tribunal of Gyor, Hungary & Anor

On an extradition appeal, the appellate court must identify an error which made the district judge’s decision wrong. It must not conduct a rehearing or merely reweigh evidence.

Fresh evidence must be genuinely unavailable at the extradition hearing and decisive. For dual criminality, the court examines the conduct alleged in the warrant, not whether the foreign offence has an English equivalent. The conduct must include, expressly or by necessary inference, the mens rea required by the corresponding English offence.

Evidence of general discrimination is insufficient under section 13 of the Extradition Act 2003 without a causal link to the individual’s prosecution, punishment or treatment. A sufficiently monitored state assurance may dispel a real article 3 risk.

The applicant challenged the District Judge’s order for his extradition to Hungary on four grounds. He argued that the fourth arrest warrant lacked adequate particulars and did not satisfy dual criminality; that extradition was barred by section 13 of the Extradition Act 2003 because of his Roma ethnicity; that prison conditions in Hungary created a real risk of treatment contrary to article 3 of the Convention; and that extradition would disproportionately interfere with his article 8 rights.

The District Judge rejected those arguments and ordered extradition. After the appeal hearing, an order under section 42 of the Act discharged the applicant in relation to two warrants. The High Court therefore determined Grounds 1 to 3 and adjourned Ground 4 for further submissions on the effect of that order.

1. Appeal framework. Under section 27 of the Extradition Act 2003, an appeal succeeds only where the district judge ought to have decided a question differently and would then have been required to order discharge. The appellate function is not a rehearing. The court must respect factual findings and ask whether the overall evaluation was wrong: Love v Government of the United States of America [2018] EWHC 172 (Admin).
2. Fresh evidence. The evidence must not have been available at the extradition hearing and must be decisive. Availability is a question of substance. A newly published report is not fresh merely because the report is new if it contains no genuinely new evidence: The Szombathely City Court v Fenyvesi [2009] EWHC 231 (Admin).
3. Ground 1. AW4 contained sufficiently detailed particulars under section 2. Dual criminality concerns the conduct described in the warrant, rather than an equivalent foreign and English offence: Norris v Government of the United States of America [2008] UKHL 16; Balaz v District Court of Zvolen (Slovakia) [2021] EWHC 1862 (Admin); Lakatos v Four Hungarian Judicial Authorities [2024] EWHC 2452 (Admin). The cumulative conduct alleged, including persistent school absence, inadequate accommodation, failure to secure medical treatment and procuring theft, could amount to child cruelty under section 1 of the Children and Young Persons Act 1933. The conduct, viewed as a whole, supported the necessary wilfulness. Ground 1 was not reasonably arguable.
4. Ground 2. Section 13 requires a causal link between the warrant, prosecution, punishment, detention or trial prejudice and the protected characteristic. General evidence of discrimination against Roma people, without an individual causal connection, does not satisfy the provision. The challenge was no more than a disagreement with the weight given to expert evidence. Ground 2 was not reasonably arguable.
5. Ground 3. A real article 3 risk may be dispelled by an adequate and effectively monitored assurance. The Hungarian assurance guaranteeing at least three square metres of personal space was not undermined by the General Ombudsman’s downgraded status. The fresh material did not show a specific failure in monitoring the assurance or cogent evidence of a systemic inability to provide article 3-compliant detention or medical care. Ground 3 was not reasonably arguable.
6. Disposition. Fresh evidence was refused for Grounds 1 to 3, leave to appeal on those grounds was refused, and Ground 4 was adjourned. The admissibility of fresh evidence relevant to Ground 4 was also adjourned.

• Westminster Magistrates’ Court: District Judge Grace Leong ordered extradition on 26 June 2023.
• High Court (Administrative Court): Grounds 1 to 3 were refused. Consideration of Ground 4 and related fresh evidence was adjourned.