Voros v The District Courts of Sopron, Gyor and Zalaegerszeg, Hungary [2012] EWHC 518 (Admin)

Case No CO/354/2012[2012] EWHC 518 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12 March 2012
Before
MR JUSTICE KEITH
Between
Péter VörösAppellantThe District Courts of Sopron, Gyor and Zalaegerszeg, HungaryRespondents
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr James Stansfeld (instructed by Lewis Nedas & Co) for AppellantMr Daniel Sternberg (instructed by the Crown Prosecution Service) for RespondentsHearing Hearing date: 1 March 2012
Judgment

Introduction

[1]On 31 August 2011, the appellant, Péter Vörös, was arrested in Leicester pursuant to four European arrest warrants issued by the District Courts of Sopron, Gyor and Zalaegerszeg, Hungary. The two issued by the District Court of Sopron (“EAW1” and “EAW2”) were issued on 6 May 2011. The one issued by the District Court of Gyor (“EAW3”) was issued on 19 May 2011. The one issued by the District Court of Zalaegerszeg (“EAW4”) was issued on 3 June 2011. The warrants had all been certified by the Serious Organised Crime Agency (“SOCA”) on 29 August 2011. Mr Vörös was further arrested in London on 13 September 2011 pursuant to another European arrest warrant (“EAW5”) issued by the District Court of Sopron on 17 May 2011. That had been certified by SOCA on 8 September 2011. Extradition hearings took place at the City of Westminster Magistrates’ Court. On 6 January 2012, District Judge Purdy ordered that Mr Vörös be extradited to Hungary pursuant to all five warrants. Mr Vörös now appeals against that order. Ouseley J ordered that the appeal could be heard by a single judge.[2]Hungary has been designated as a category 1 territory pursuant to section 1 of the Extradition Act 2003 (“the Act”). Accordingly, Mr Vörös’ extradition is governed by Part 1 of the Act, and the warrants issued by the district courts were Part 1 warrants. The warrants were what are colloquially called accusation warrants. Such a warrant is issued “with a view to [the person’s] arrest and extradition … for the purpose of being prosecuted for the offence [specified in the warrant]”: see section 2(3)(b) of the Act. The five warrants cover thirteen offences relating to the disposal of cars. EAW1 and EAW2 each relate to a single offence. EAW3 relates to five offences. EAW4 relates to two offences. EAW5 relates to four offences. The grounds of appeal relate to the offences in EAW1 and EAW2, all the offences in EAW3, the first offence in EAW4 and the first and fourth offences in EAW5. It is not suggested that there is any bar to Mr Vörös’ extradition for the second offence in EAW4 and the second and third offences in EAW5. The appeal has five strands, which I shall refer to for convenience as lack of particularity (ground 1), dual criminality (ground 2), double jeopardy (ground 3), abuse of process (ground 4) and invalidity (ground 5). I shall deal with grounds 1 and 2 separately, and grounds 3, 4 and 5 together.

Ground 1: Particularity

[3]The information which an accusation warrant must contain is that provided for by section 2(4) of the Act. That information is required by section 2(4)(c) to include “particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, [and] the time and place at which he is alleged to have committed the offence …” The giving of this information is critical, because a failure to do so is fatal to a request for extradition. That is the effect of what Lord Hope said in Office of the King’s Prosecutor, Brussels v Cando Armas [2006] AC 1 at [28]:
“If the warrant … does not conform to the requirements set out in section 2, it will not be a Part 1 warrant within the meaning of that section and Part 1 will not apply to it.”
In such circumstances, any order for extradition founded upon it is liable to be quashed. In this ground of appeal, it is contended that the information given in EAW1 and EAW2 does not identify in sufficient detail or with sufficient clarity what Mr Vörös is alleged to have done or the circumstances in which he is alleged to have committed the offences, and that the information relating to the first, second and fifth offences in EAW3 does not identify the place where the offences are alleged to have been committed. No such allegation is made any longer in respect of the particulars given for the offences to which EAW4 and EAW5 relate.[4]The test to be applied is well known, and for present purposes, I need cite only two passages from the authorities. In Gilbert Ektor v National Public Prosecutor of Holland [2007] EWHC 3106 (Admin), Cranston J said at [7], of the provision in the Council Framework Decision of 13 June 2002 which section 2(4) of the Act implemented domestically, that the warrant must “… set out a description, not in legal language, of how the alleged offence is said to have occurred. In particular, the description must include when and where the offence is said to have happened and what involvement the person named in the warrant had … The person sought by the warrant needs … to have an idea of the nature and extent of the allegations against him in relation to that offence.

(c) :

“In examining the conduct alleged in the warrant and any further information the court must not be pedantic or overly technical. Instead, the court must make reasonable allowance for (a) the fact that methods of particularising criminal offences differ from one jurisdiction to another and (b) the fact (if it be the case) that the warrant has been translated from a foreign language into English.”
[5]EAW1. The information given in EAW1 about what Mr Vörös is alleged to have done is as follows:
“On 22 July 2008 Imre József Tóth, a resident of Kószeg, concluded loan and option contract No. 2008022097-ZZ with Erste Leasing Car Financing Ltd. for financing the purchase of an Opel Astra H car with traffic registration number LEW-139, effected by him on the same day. The purchase price of the car was 4,050,000 HUF out of which the person against whom criminal complaint was filed paid 415,000 HUF as own fund to the trader and undertook to pay the outstanding amount of 3,635,000 HUF of the loan within a term of 120 months. After the conclusion of the contract Imre József Tóth complied with his payment obligations on two occasions and on 16 September 2008 the car was seized in the framework of enforcement proceedings conducted by Asztalos and Co. Bailiff Office (9700 Szombathely, Fó tér 15, 1st floor 1). After the seizure of the car in the enforcement proceedings Imre Jószef Tóth did no longer pay any instalment for the loan taken. In the course of the proceedings Imre József Tóth told that he had no intention to buy a car, according to his knowledge he had signed a loan agreement as a surety for the request of Zoltán Erdélyi, a resident of Szakony. Mr Erdélyi even showed him an employment certificate, according to which he was an employee of a company in Csepreg. At the car trading company in Sopron he had signed several documents which, as he confessed, he had failed to read. He had not seen the car bought by him and had not pay any instalment. He also told that he had neither asked nor received any money from Zoltán Erdélyi or any other person. As to the public notary document No. K22015-0/1013/2008/2/0 he stated that its content was unknown to him and that he had never been to the office of dr Mónika Bálint, notary public. According to the data obtained, Péter Biró – a resident of Táplánszentkereszt – instituted enforcement proceedings No. 107.V.1655/2008 against in respect of a claim of 1,000,000 HUF. That case concerned an authorisation issued on 17 September 2008 by Imre József Tóth for Péter Vörös, a resident of Ják, authorising Péter Vörös to act for Imre József Tóth with full power in that case. As to the authorisation of 17 September 2008. presented to him during his interrogation as a consecutive suspect, Imre József Tóth declared that its content and the circumstances of its creation were totally unknown to him and that the authorisation was not signed by him. Árpád Asztalos independent bailiff sold the car at auction sale held on 24 September 2008.”
Árpád Asztalos independent bailiff sold the car at auction sale held on 24 September 2008.”[6]This passage is not easy to follow, and it only makes sense if one reads into the passage things which are not spelt out in so many words, but in my opinion the warrant can fairly be said to describe the fraud in which Mr Vörös is alleged to have participated as follows. On 22 July 2008 Jószef Tóth signed an agreement with a finance company to purchase an Opel Astra motor car on hire-purchase. He did not realise that that was the agreement he was signing. He thought that he was signing an agreement to act as surety for a loan taken out by someone else. The car was presumably collected by or delivered to whoever was responsible for getting Mr Tóth to sign the agreement. Two of the instalments due under the agreement were paid – presumably by someone purporting to be Mr Tóth – but the car was seized by bailiffs on 16 August 2008 to satisfy a debt allegedly owed by Mr Tóth to Péter Biró. In fact, no such debt was owed, but presumably in order to provide authority for the bailiffs to sell the car, a document purportedly signed on 17 August 2008 by Mr Tóth, but in fact not signed by him, purporting to authorise Mr Vörös to act for him was presented to the bailiffs. The car was eventually sold at auction by the bailiffs.[7]Although the fraud in which Mr Vörös is alleged to have participated emerges from the warrant – albeit with some assumptions having to be made – it is not clear at all what Mr Vörös is himself alleged to have done. Was he involved in any way in getting Mr Tóth to sign the hire-purchase agreement? Or in creating whatever documentation was needed to persuade the bailiffs that Mr Tóth was indebted to Mr Biró? Or in presenting the documentation to the bailiffs and persuading the bailiffs to seize the car? And when it came to the sale of the car by the bailiffs, what was Mr Vörös’ role in the forged document of authority from Mr Tóth? Did he forge it himself? Or did he just allow his name to be used? And is it alleged that it was he who dealt with the bailiffs on the basis of that forged document?[8]It is important not to put too much weight on the absence of answers to any of these questions. It may be that the only evidence which the Hungarian authorities have about Mr Vörös’ participation in the fraud is that the forged document authorised him to act on Mr Tóth’s behalf, and the court at his trial will be asked to infer from that that Mr Vörös must have done something to get the bailiffs to sell the car. But what? The offence referred to in the warrant is the use of a bogus or forged document. What was the use he made of it? If it is alleged that it was he who dealt with the bailiffs relying on the forged document, the warrant had to say that. The absence of any information about what Mr Vörös is alleged to have done means that the warrant did not include information about “the conduct alleged to constitute the offence”. District Judge Purdy may well have been influenced by the concession made by Mr Vörös’ counsel (who was not Mr James Stansfeld who has represented him on the appeal) that the information in the warrant was “probably sufficient”, but it was not. Mr Vörös may not be extradited for the offence to which EAW1 relates.[9]EAW2. The information given in EAW2 about what Mr Vörös is alleged to have done is as follows:
“On 10 October 2008 Péter Vörös – a resident of Ják, Széchenyi u. 115 – concluded loan agreement No. BCMH08/037318 with the Budapest Autófinanszirozási Ltd. for financing the purchase on the same day of a Citroen C4 car with registration number JTZ-233. The purchase and the conclusion of the contract took place in Sopron at the Gerencsér Autóhaz Llc. (9400 Sopron, Gyori ut 50/C.) The purchase price of the car was 2,350,000 HUF out of which the person against whom a criminal complaint was filed paid 235,000 HUF as own fund and in respect of which he undertook to pay the outstanding amount in a term of 120 months. After the conclusion of the contract Péter Vörös did not comply at all with his payment obligations. On 14 November 2008, upon the request of Ilona Rinkó, in enforcement proceedings No. 156.HV.V.594/2008/9. Tamás Horváth independent bailiff sold the car for 2.4 million HUF under the effect of an auction sale but outside an auction. On 20 December 2008 the Budapest Autófinanszirozási Ltd. issued the car registration card for the buyer Royal-Ker Llc. and on 19 January 2009 it cancelled the contract with Péter Vörös. Based on the available data, in light of the apparent proximity of the above dates, there is a well-founded suspicion that when Péter Vörös bought the car and asked loan from the Budapest Autófinanszirozási Ltd. he already knew that in the enforcement proceedings to be instituted later by Ilona Rinkó based on a declaration acknowledging a debt, signed by Péter Vörös, the car would be seized by the bailiff.”
[10]This information is much easier to follow than that in EAW1. The conduct which it describes is that on 10 October 2008 Mr Vörös concluded an agreement for a loan with a finance company to finance his purchase of a Citroën motor car. A few weeks later the car was seized by bailiffs to satisfy a debt allegedly owed by Mr Vörös to Ilona Rinkó, and on 14 November 2010 the bailiffs sold the car. The allegation against Mr Vörös is that when he acquired the car, he knew that it was going to be seized by bailiffs to satisfy that debt.[11]Mr Stansfeld argues that the warrant does not specify what the fraud was. I do not agree. The fraud which Mr Vörös is alleged to have committed was that he knew, when he concluded the agreement with the finance company, that the car would be seized to satisfy the debt owed to Ilona Rinkó. It is true that the warrant does not say whether Mr Vörös was really indebted to Ilona Rinkó, or whether that was as fictitious as Mr Tóth’s debt to Mr Biró. But that is more relevant to what the appropriate sentence ought to be. Whether the debt was a real or fictitious one, the deception of the finance company was the same, and it arose out of Mr Vörös’ conduct in concluding the agreement with the finance company when he knew that the car would be seized. It is also true, as Mr Stansfeld argues, that the warrant does not spell out in so many words who the fraud is said to have been against, and what loss, if any, is said to have been caused. But it is obvious that the victim of the fraud was the finance company, and what it lost were the repayments due from Mr Vörös under the agreement or what it could have sold the car for if it had been able to repossess it. In the circumstances, the particulars given of this offence were sufficient.[12]EAW3. The information given in EAW3 about the modus operandi for the five offences to which the warrant relates is the same. In each case, cars had been obtained on loan or hire-purchase. Enforcement proceedings had to be brought by the finance company – presumably because the hirer defaulted on the payments due under the agreements – but the cars could not be found. Mr Vörös was alleged to have “participated in the concealment of the car, thus thwarting the creditor bank’s claims”. In the third and fourth offences, Mr Vörös was alleged to have concluded the agreements himself, but someone else, Attila István Pál, is alleged to have concluded the agreements in the first, second and fifth offences. The warrant does not state(a) where the agreement to which the first offence relates was concluded, or(b) where any of the cars were concealed. Those omissions are said to infringe the requirement for the warrant to state “[the] place at which [the person] is alleged to have committed the offence”.[13]I do not agree. The offences which Mr Vörös is alleged to have committed are all the offence of “concealment of assets”. Accordingly, “[the] place at which he is alleged to have committed the offence” is the place where he “participated” in the concealment of the cars. The warrant did not need to state where the agreements for the acquisition of the cars on loan or hire-purchase were concluded. And if the offence is one of concealing assets, it is a little rich to complain that the warrant omits to mention where the assets were concealed. The fact that they have disappeared means that the authorities do not know where they were concealed. In any event, as Roderick Evans J said in Hewitt and Woodward v First Instance and Magistrates’ Court No 1 of Denia, Spain[2009] EWHC 2158 (Admin) at [11], the reason why the warrant has to give the place where the offence was committed “is to enable the court to determine whether the conduct referred to amounts to an extradition offence”, bearing in mind that for an offence to be an extradition offence for the purposes of an accusation warrant, section 64(3)(a) of the Act, as we shall see, requires the conduct to have occurred in the category 1 territory. On that topic, Lord Hope made the point in Cando Armas at [35] that the conduct will have occurred in the category 1 territory “so long as its effects were intentionally felt there, irrespective of where the person was when he did the acts which constituted such conduct”. It cannot be gainsaid that the effect of Mr Vörös’ alleged participation in the concealment of the cars was felt in Hungary. In the circumstances, the particulars of all five offences in EAW3 were sufficient.

Ground 2: Dual criminality

[14]Section 10(2) of the Act required the judge at the extradition hearing to decide whether the offences specified in the warrant were extradition offences. Since the five warrants were accusation warrants, the section of the Act which states what constitutes an extradition offence in Mr Vörös’ case is section 64. Section 64 sets out a variety of circumstances in which conduct constitutes an extradition offence, and the set of conditions which are relevant to Mr Vörös’ case are those set out in section 64(3) which provides:
“The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied – (a) the conduct occurs in the category 1 territory; (b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom; (c) the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment (however it is described in that law).”
The issue for the district judge was whether the offences in the five warrants satisfied the requirement of dual criminality in section 64(3)(b). It is contended the judge was wrong to rule that the offences in EAW1, EAW2 and EAW3 satisfied that requirement, though it is accepted that the offences in EAW4 and EAW5 did so. In view of my conclusion about the lack of particularity of the offence in EAW1, I need not consider the offence in EAW1 in that context. (b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom; (c) the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment (however it is described in that law).”[15]The most authoritative authority on the application of the test of dual criminality is the case of Norris v Government of the United States of America [2008] UKHL 16. The issue which had to be decided was whether the assessment should be based on an examination of the elements of the foreign offence, or whether the court simply had to determine whether the conduct complained of, if it had occurred within the relevant part of the UK, would have amounted to a criminal offence. The House of Lords concluded at [91] that the conduct test was the appropriate test, the relevant conduct “being that described in the documents constituting the request …, ignoring … the narrative background but taking account of such allegations as are relevant to the description of the corresponding United Kingdom offence”.[16]EAW2. District Judge Purdy found that the offence in EAW2 would have amounted to the offences of fraud by false representation and obtaining services dishonestly contrary to sections 2 and 11 of the Fraud Act 2006 had they been committed in this country. To commit the offence of fraud by fraudulent misrepresentation, you have, amongst other things, to have dishonestly made a false representation. The argument here is that the information in the warrant does not include any suggestion that Mr Vörös made any representation to the finance company, let alone a false one or in circumstances which were dishonest: the information in the warrant did not say either that the loan Mr Vörös got was conditional upon him not being subject to any enforcement proceedings or that he had made a statement which misled the finance company.[17]The warrant admittedly did not say that in so many words, but the allegation is that by concluding the agreement for the hire-purchase of the car, Mr Vörös was telling the finance company to all intents and purposes that he would be paying the instalments due under the agreement when they fell due. That amounted to a representation about his current intentions, and the allegation is that that representation was false, and by definition dishonest, because he knew that he would not be paying the instalments when they fell due since he was aware that the car would shortly be seized to satisfy a debt owed (either genuinely or fictitiously) to a third party. Moreover, that was the dishonest act for the purpose of the offence of obtaining services dishonestly. In any event, further information provided by the Hungarian authorities explicitly alleged that Mr Vörös had “deceived” the finance company. In the circumstances, District Judge Purdy was right to conclude that the offence in EAW2 met the requirement of dual criminality.[18]EAW3. District Judge Purdy found that the offences in EAW3 would have amounted to the offences of theft or obtaining services dishonestly had they been committed in this country. The first, second and fifth offences could only have amounted to theft, of course, because Mr Vörös did not obtain any services himself since the finance companies did not conclude the agreements with him. To commit the offence of theft, the property you have appropriated has to have been “property belonging to another”. The argument here is that there is no suggestion in the warrant that when Mr Vörös participated in the concealment of the cars, they belonged to anyone other than him.[19]I deal first with the third and fourth offences in EAW3 in which the agreements with the finance companies were concluded in Mr Vörös’ own name. Section 5(1) of the Theft Act 1968 provides that property shall be regarded as belonging to any person having “any proprietary right or interest in it”. If the agreements were hire-purchase agreements, the finance companies would have continued to own the cars, because under such an agreement the finance company retains ownership of the car until all the repayments have been made and the hirer has exercised his option to purchase the car. If the agreements were loan agreements in which Mr Vörös was simply being given a loan to fund his purchase of the cars, he would have become the owner of the cars, but the finance companies must have retained the right to seize the cars if the repayments were not made to have been able to bring the enforcement proceedings which they did, and that right would have amounted to a proprietary interest in the cars. It is that which distinguishes the present case from Luczak v District Court in Sieradz, Poland [2009] EWHC 2573 (Admin) upon which Mr Stansfeld relies. In that case, the court simply could not tell “from the few hard facts in the warrant” whether the property in the goods which were alleged to have been “alienated” had passed to the bailiffs. And if the finance companies retained a proprietary interest in the cars covered by agreements concluded in Mr Vörös’ name, there is no reason for supposing that they did not retain a proprietary interest in the cars covered by agreements concluded in Mr Pál’s name, i.e. the cars to which the first, second and fifth offences in EAW3 relate. Indeed, the offences relating to those cars would have amounted to the offences of obtaining services dishonestly for the same reason that the offence in EAW2 would have amounted to such an offence.[20]It is said on Mr Vörös’ behalf that further information provided by the Hungarian authorities has muddied the legal waters. Mr Vörös’ “victim” is said to have been Mr Pál (rather than the finance company), and what Mr Vörös is said to have participated in was the sale of Mr Pál’s cars without his authority. I can understand that in respect of the first, second and fifth offences if Mr Pál really did exist and had not been a party to any dishonesty himself. But the whole tenor of the warrant suggests otherwise, and when the further information refers to Mr Pál having been “the victim”, and the cars having been disposed of without his authority, what was meant, I think, was that Mr Pál was Mr Vörös’ notional victim. The actual victims of his dishonesty were still the finance companies. It is true that the further information suggests that this was not so much a matter of concealing the cars, but rather a matter of selling the cars without Mr Pál’s authority, but there is no inconsistency there. After all, it is likely that the cars were concealed with a view to them being sold in due course.[21]I have not overlooked the fact that in respect of each of the five offences the warrant describes Mr Vörös as acting as Mr Pál’s agent when it came to his participation in the concealment of the cars. That has to be a mistake when it comes to the third and fourth offences because in respect of them the agreements with the finance companies were not in Mr Pál’s name. But that does not undermine what I have said about the first, second and fifth offences. Since the agreements there were in Mr Pál’s name, Mr Vörös would have been purporting to act as Mr Pál’s agent when he disposed of the cars, even if Mr Pál either did not exist or was a party to the dishonesty himself. In the circumstances, District Judge Purdy was right to conclude that all the offences in EAW3 met the requirement of dual criminality.

Grounds 3, 4 and 5: Double jeopardy, abuse of process and invalidity

[22]These three grounds take this case out of the normal run of cases, because there is no authority directly in point on the issue which these grounds raise. It is alleged on behalf of Mr Vörös that(a) the offence in EAW2 is the same offence as the fourth offence in EAW5, and that(b) the first offence in EAW4 is the same offence as the first offence in EAW5. The only material differences between the warrants is that the maximum sentence for the offence in EAW2 and the first offence in EAW4 is expressed to be five years’ imprisonment, whereas the maximum sentence for the first and fourth offences in EAW5 is expressed to be eight years’ imprisonment. Although the same provision of the Criminal Code is said to have been contravened for all four offences, the difference is supposedly attributable to the fact that the sentence can be longer if the offence is committed in a prescribed way. The argument is that to require Mr Vörös’ extradition twice over for the same offences offends the principle against double jeopardy or amounts to an abuse of the extradition process. Additional information provided by the Hungarian authorities about whether Mr Vörös will be prosecuted for all four offences leads on to the argument that the warrants relating to those four offences are invalid.[23]Mr Daniel Sternberg for the respondents argues that these are all new points which were not taken before the district judge. That may partly be so, but I do not think that that should prevent the points being argued now. I say that for a number of reasons. First, the fact that there was duplication amongst the offences was specifically pointed out to the district judge. He said as much in his judgment in the context of double jeopardy. Secondly, the point can be argued without new evidence. The additional information on which reliance is placed was before the district judge. Thirdly, the arguments based on abuse of process and invalidity could be said just to be different ways in which the duplication of the offences impacts on the appropriateness of Mr Vörös’ extradition for them. Finally, this is an area in which the courts are still feeling their way towards arriving at the correct principle (compare, for example, the cases of Hoholm v The Government of Norway [2009] EWHC 1513 (Admin), Khan v Government of the United States of America [2010] EWHC 1127 (Admin), Soltysiak v Judicial Authority of Poland [2011] EWHC 1338 (Admin) and Koziel v District Court in Kielce, Poland [2011] EWHC 3781 (Admin)), and it would not be right to deny Mr Vörös the opportunity to have the arguments which arise as a result of the duplication of the offences deployed properly.[24]Mr Sternberg accepts that the offences have been duplicated in the warrants. But for that concession, I might have been minded to think otherwise. There is a difference between the offence in EAW2 and the fourth offence in EAW5 in that in the latter there is an additional false representation alleged, namely that Mr Vörös was employed by Remitent Llc earning 152,600 HUF a month, which was untrue. There is a similar difference between the first offence in EAW4 and the first offence in EAW5, save that in the latter Mr Vörös is said to have represented his earnings to be 148,000 HUF a month. But it would be wrong to go behind a considered concession made on behalf of the respondents, and I proceed on the basis that Mr Vörös’ extradition is being sought twice over for the same two offences.[25]The fact that Mr Vörös’ extradition is sought for both the first offence in EAW4 and the first offence in EAW5 is not all that surprising since different courts – the District Court of Zalaegerszeg and the District Court of Sopron – want to try him for both offences. That applies to the offence in EAW2 and the fourth offence in EAW5 as well, even though it is the same court, indeed the same judge – Judge Dr Aniko Gajdos at the District Court of Sopron – who wants to try him for the same offence. Since the offences carry different maximum punishments dependent on whether the offences were committed in a particular way, it may be that what still has to be decided is whether the way Mr Vörös is alleged to have committed them will justify him facing the charges which carry the more serious punishment.[26]The rule against double jeopardy is contained in section 12 of the Act. That bars someone’s extradition to a category 1 territory “if (and only if) it appears that he will be entitled to be discharged under any rule of law relating to previous acquittal or conviction”. In Fofana v Deputy Prosecutor Thubin, Tribunal de Grande Instance de Meaux, France [2006] EWHC 744 (Admin), the Divisional Court held at [18] that the authorities established two circumstances in English law in which the principle of double jeopardy is engaged:(i) where a person is charged with an offence which is the same in fact and law as an offence of which he has previously been acquitted or convicted (autrefois acquit or convict), and(ii) where a person is charged with an offence which is founded on “the same or substantially the same facts” as an offence for which he has been tried, and where the court would normally consider it right to stay the prosecution as an abuse of its process and the prosecution could not show that there were “special circumstances” why another trial should take place. Either way, someone can benefit from the rule against double jeopardy only if there has been a previous trial. Mr Vörös has not previously been tried for any of these offences.[27]Mr Stansfeld seeks to overcome this formidable hurdle in the way of the application of the rule against double jeopardy in Mr Vörös’ case by relying on the Hungarian authorities’ response to a request from SOCA about which offences they would choose to try him on if they were put to their election. That response was that the information sought could not be given because the investigation was still in progress. Accordingly, Mr Stansfeld argues that in these circumstances it cannot be said that Mr Vörös’ extradition is sought so that he will be prosecuted for these four offences. Since(a) a European arrest warrant is required by section 2(3)(b) of the Act to state that it has been issued with a view to the person’s “arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence”, and since(b) a request for someone’s extradition “for the purpose of conducting an investigation to see whether that person should be prosecuted … is not a legitimate purpose … [in which case] the warrant is not a [valid warrant] within the meaning of section … 2(3)” (per Aikens LJ in Asztaslos v The Szekszand City Court, Hungary [2011] 1 WLR 252 at [16]), it follows that EAW2, EAW4 and EAW5 were not valid warrants to the extent that they seek Mr Vörös’ extradition for those four offences.[28]This is, in reality, not an argument about double jeopardy at all. Rather it is an argument about the validity of the warrants. The argument is none the worse for that. Although the warrants say that Mr Vörös’ extradition is sought so that he can be prosecuted for the four offences, the reality is that it still has to be decided whether he will be prosecuted for all four offences, and if not, which of the four offences he will actually be prosecuted for. In that limited sense, it can properly be said that the warrants are not valid, because they are not accusation warrants in respect of those four offences. I have not overlooked what was said in Asztaslos at [38] about extrinsic evidence being used to determine whether a warrant is indeed an accusation warrant only as “a last resort”, but the highly unusual feature of the warrants seeking Mr Vörös’ extradition for duplicate offences makes that permissible in this case.[29]Mr Stansfeld acknowledged that if I came to that conclusion – whether by the route of double jeopardy or some other route – it would not be right to order that Mr Vörös should not be extradited for any of the four offences. He accepted that the warrants could be rendered valid if the Hungarian authorities elect which of the offences Mr Vörös is to be tried on, because the references then in the warrants to the offences for which he is not to be prosecuted can be treated as no longer operative. Mr Stansfeld accepted that in those circumstances the hearing of the appeal would have to be adjourned so that the Hungarian authorities can be asked which of the four offences Mr Vörös will be prosecuted for.[30]That makes it unnecessary at present for me to address the alternative argument, namely that until the Hungarian authorities elect which of the duplicate offences Mr Vörös should be tried on, his extradition to Hungary would be an abuse of the extradition process. The contention here is that Mr Vörös is entitled to know, before his extradition takes place, whether he is to be prosecuted for offences which carry a maximum of five years’ imprisonment or for offences which carry a maximum of eight years’ imprisonment. Although I think there is force in that contention, I express no concluded view on it. It may be necessary for me to return to the question of abuse if the Hungarian authorities say that Mr Vörös’ extradition is sought so that he can be prosecuted for all four offences.

Conclusion

[31]For these reasons, Mr Vörös may be extradited to Hungary for the five offences in EAW3, the second offence in EAW4 and the second and third offences in EAW5. He may not be extradited for the offence in EAW1. I make no further order on the appeal now, because it will be for the Hungarian authorities to decide whether to state at this stage which of the four remaining offences they wish to prosecute Mr Vörös for, but if they decline to make that election now, he may not be extradited for any of those four offences. Since Mr Vörös is in custody, it is important that the Hungarian authorities decide as soon as possible whether to choose at this stage which of the four offences he is to be prosecuted for. The Administrative Court Office must be notified of that through SOCA within five weeks of the handing down of this judgment, i.e. by 16 April. I will then make such order as is appropriate in the light of that information.[32]I wish to spare the parties the trouble and expense of attending court when this judgment is handed down. I leave it to the parties to see if they can agree an appropriate order for the costs of this appeal. If they cannot, they should notify my clerk of that in writing within 14 days of the handing down of the final judgment in this appeal. I will then decide what the appropriate order for costs should be without a hearing on the basis of such written representations as the parties choose to make.

Cited in 2 later judgments