CASE SUMMARY: Kiss v Municipal Court of Miskoic Hungary [2019] EWHC 2873 (Admin)

Background facts

The appellant appealed against an order for his extradition to Hungary made on 19 January 2018. The appeal had been delayed in order to allow cases dealing with prison conditions in Hungary to be heard in the High Court. That ground of appeal remained stayed until after the judgment of the Divisional Court in the case of Oros.

The appellant was arrested under two EAWs in September 2017. The first was in relation to the appellant’s conviction in respect of two discrete offences in 2011 and the second was an accusation warrant relating to an offence of burglary. The court dealt first with the conviction warrant (EAW 1) for offences of consumption of a marijuana cigarette; the second for the supply of marijuana to a child. The appellant was sentenced to one year’s imprisonment which remains to be served in full.

At the extradition hearing in January the District Judge discharged the appellant in respect of the first offence as the facts as described did not amount to a criminal offence in this jurisdiction. As a result, were the appellant to be extradited now, his sentence would be disaggregated and he would be resentenced in respect of the second discrete offence.

Court’s decision and reasoning: EAW 1

The court allowed the appeal and discharged the appellant.

EAW 1

It was noted that the appellant has spent over two years on conditional bail with quite onerous requirements, which would constitute “British criminal supervision” in the requesting state for the purposes of credit towards sentence. This credit when taken with the available sentence range for the remaining offence resulted in a real possibility that if the appellant were now extradited in respect of that offence he would not be sentenced to a sentence of four months’ imprisonment “which is clearly contrary to the policy of the Extradition Act” [at 23] albeit it was still an extradition offence for the purposes of Section 65 of the 2003 Act . The court noted that the facts of the case as they involved both a previously imposed sentence and the need for resentencing did not fall neatly into the provisions of the 2003 Act, but was persuaded by the defence argument that the court must guard against a situation which has become, in the technical sense, abusive in relation to extradition [Zakrzewski v. Regional Court in Lodz, Poland [2013] UKSC 2 considered].

Further, the offending in question took place over eight years ago and involved the supply of a narcotic substance, the possession of which was not an offence in Hungary. Extradition in respect of this offending would plainly be abusive and disproportionate.

EAW 2

The court found that the district judge had, with respect, overstated the gravity of the offending in question and the likely sentence to be imposed. The appellant was accused of stealing items in the region of £400 from a neighbour with whom he was co-habiting in one subdivided apartment. This was not akin to breaking into and burgling a stranger’s home. As there was no evidence on sentence presented by the issuing judicial authority, the court relied on the English position and considered that given the lapse in time of seven and a half years since the alleged offending and the value of the property, a custodial sentence would be unlikely. The appellant’s extradition on this warrant would be disproportionate under section 21A of the 2003 Act. The district judge ought to have decided proportionality differently and, if he had done so, he would have been required to order the appellant’s discharge.