AC-2024-LON-002386 - [2025] EWHC 2999 (Admin)

As far as the Respondent’s overarching submission is concerned, the Judge did in fact engage with the expert evidence adduced by the Appellant and the Respondent did not seek to contradict it. Irrespective of whether or not the Judge should have simply accepted the statement in the FI she was undoubtedly correct to say that at the date of the issue of the warrant or the later FI it was not possible to proceed in the Appellant’s absence; to that extent her conclusions took into account and were based on the Appellant’s expert evidence as to Hungarian law. She was equally entitled to conclude that on the evidence this answered the predicate statutory question as to whether the absence of a prosecutorial decision was solely due to the Appellant’s absence. She was also correct in my view to conclude that this question was to be determined as at the date of the warrant which she was considering, as supplemented by the FI; that is a matter of English rather than Hungarian law.

Even if that was wrong and it was necessary to consider the position as at date of the extradition hearing, that did not mean the identified impediment to charging or trying the Appellant had ceased to be his absence. The “special procedure” described by Dr Filo was not mandatory, it is articulated in his reports as a procedure which the JA “may” invoke. There are obvious questions of fairness which would arise, not least by reference to the general principle set out in Dr Filo’s report, if the Respondent sought to charge, and possibly convict, the Appellant in his absence where his extradition was potentially imminent. The Judge, in my view, correctly found that the sole reason for the failure to charge or try the Appellant was his absence from Hungary and accepted, at paragraph 29 of her judgment, the JA’s statement to this effect. That was the position both at the date of the issue of the warrant and by the time of the extradition hearing. She fairly considered the evidence of the Appellant’s expert, as factual evidence of foreign law, and accepted much of it but was not in error when applying it to the statutory question which arose under the Act.