Vince Bogdan v Győr Regional Court (Hungary)

In an extradition conviction case, dual criminality is assessed by the conduct specified in the warrant. Where the foreign and domestic offences have different elements, that conduct must make the required domestic mens rea the only reasonable inference. Under the Fraud Act 2006, gain or loss must concern money or other property. A truthful entry of names on a residence register, without evidence of dishonest intent, benefit, deprivation or transferable value, does not meet that requirement. Information in a public register is not property merely because it may have administrative or evidential effects. A warrant endorsement of a right to a retrial, supplemented by language describing an application as procedural, may satisfy the retrial requirement. On an Article 8 appeal, disagreement with the district judge’s weighting is insufficient without legal or rationality error.

The appellant appealed against District Judge Curtis’s decision of 16 August 2024 ordering extradition to Hungary under a conviction warrant seeking enforcement of the remainder of a sentence of three years and 15 days’ imprisonment. The appeal concerned whether registering individuals at a rented address satisfied dual criminality under the Extradition Act 2003, whether the warrant and further information established a right to a retrial, and whether extradition would be disproportionate under Article 8 ECHR. Both parties applied to adduce new evidence. The central questions were whether the registration conduct constituted fraud under domestic law, whether the retrial information was sufficiently clear, and whether the district judge’s Article 8 evaluation was legally wrong.

The appeal succeeded on the dual-criminality ground. Permission to pursue the retrial and Article 8 grounds was refused.

1. Dual criminality. Sections 10 and 65 of the Extradition Act 2003 required the respondent to establish, to the criminal standard under section 206, that the conviction offence also constituted an offence under United Kingdom law. Under section 66(1A), the court focused on the conduct specified in the warrant rather than comparing the elements of the foreign offence with the domestic offence. That approach was applied in Office of the King’s Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, Norris v Government of the United States of America [2008] UKHL 16 and El Khouri v Government of the United States of America [2023] UKSC 3.
2. Dishonesty. Where the elements of the foreign and domestic offences differ, the facts in the warrant must compel the inference of the required domestic mens rea as the only reasonable inference. Applying Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin), the registration conduct did not compel dishonesty. The individuals were in fact living at the address. There was no evidence that the appellant knowingly represented himself as the landlord, received a benefit, or acted dishonestly rather than negligently or in ignorance.
3. Property and gain or loss. Under sections 2 and 5 of the Fraud Act 2006, gain or loss had to concern money or other property. Property could extend beyond choses in possession and choses in action where it was definable, identifiable by third parties, capable of assumption by third parties, and sufficiently permanent or stable. The name of an occupier on a public residence register was, in substance, information. It lacked the necessary characteristics of property. The court followed the principle concerning pure information in Oxford v Moss [1979] Cr. App. R. 183, applied the reasoning in AA v Persons Unknown [2020] 4 WLR 35 by contrast, and distinguished Dixon v The Queen [2015] NZSC 147 and AG of Hong Kong v Nai-Keung [1987] 1 WLR 1339. Neither a loss to the landlord nor a gain to another was established. Dual criminality therefore failed.
4. Further information. The respondent’s late Further Information was not formally admitted because it did not answer the appeal decisively, although it was considered de bene esse. It did not establish that registration itself created a legal right to services or that the required property element existed.
5. Retrial. The warrant’s completed retrial endorsement, read with language stating that the appellant could ask for the procedure to be repeated, was sufficient. The application was a procedural step and did not create ambiguity. Merticariu v Romania [2024] UKSC 10 was distinguishable because the relevant box had not been ticked in that case and a further step was required before a retrial could be considered.
6. Article 8. On an appeal concerning proportionality, the court reviews for legal or principled error, an irrational factual finding, failure to consider a relevant factor or reliance on an irrelevant factor, or an irrational overall conclusion. It does not substitute its own weighting merely because it might have reached a different evaluation. Applying Belbin v Regional Court of Lille, France [2015] EWHC 149 (Admin), the district judge had carefully considered the public interest, the appellant’s fugitive status, family circumstances, children, finances and health. No arguable error was shown.

The appeal succeeded only on dual criminality. The retrial and Article 8 grounds were not arguable.

• High Court (Administrative Court) — allowed the appeal on the dual-criminality ground under the Extradition Act 2003; the retrial and Article 8 grounds were not arguable.
• District Judge Curtis — on 16 August 2024 ordered the appellant’s extradition to Hungary under the conviction warrant.