England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		3rd October 2006

1. LORD JUSTICE MAURICE KAY: This is an appeal under section 26 of the Extradition Act 2003. The decision appealed against is that of District Judge Evans sitting in the City of Westminster Magistrates' Court who on 4th September 2006 ordered the extradition of the appellant, Aleksandrs Prancs, to Latvia. The case proceeds under Part 1 of the 2003 Act, Latvia being a Category 1 territory.
2. The appellant came before the District Judge pursuant to a European Arrest Warrant. It was dated 12th April 2005. The allegation to which it relates was one of the intentional infliction of bodily injury. The allegation is summarised in the warrant along these lines. On 12th June 1999 in the courtyard of the house belonging to Igors Petrovs, the appellant, whilst under the influence of drink, punched Petrovs causing him to fall and whilst Petrovs was on the ground he, not less than five times, hit Petrovs' face and head with his hands and legs. It is alleged that the injuries endured for a period of longer than 21 days (that apparently being the test in relation to the relevant offence in Latvia) and they included fracture with dislocation of both sides of the mandibula, concussion and skin abrasion. The offence is one for which the maximum sentence in Latvia is 5 years.
3. The appellant has admitted in his statement in evidence to the District Judge that he did indeed assault Mr Petrovs on the day in question. He says that he left Latvia not because he was by then the subject of a criminal prosecution for the assault on Mr Petrovs, but because he was fleeing mistreatment at the hands of Latvian police officers. That mistreatment did not relate to his arrest and prosecution for the assault on Mr Petrovs. It is said to have arisen out of earlier incidents, the case for the appellant being that he had lent a sum of money to a friend, Mr Morozov, who was a police officer in Latvia. Upon Morozov's failure to repay, the appellant says he reported the matter to the police whereupon Morozov and others abducted him, took him to a police station and to Morozov's home and severely beat him. He managed to escape and to attend hospital and some four months later, following a period in hiding, he left Latvia and came to this country.
4. In this country he made an asylum application, and in all probability an application that to return him to Latvia would breach his human rights. However, the Secretary of State refused his applications and his appeals within the immigration appellate authority were unsuccessful. We have not seen the record of any adjudication in those proceedings. We do, however, know that there exists a lawful decision to refuse asylum and to return the appellant to Latvia in the immigration context.
5. The appellant arrived in this country towards the end of 1999 but, as I have recorded, the European Arrest Warrant was not issued until 2005. The reason for that is that the Latvian authorities were unaware until 2005 that the appellant was in this country. Once they discovered that fact, the European Arrest Warrant was issued and certified and it was executed in this country within a relatively short period of time.
6. At the hearing before the District Judge, the case for the appellant was put in substantially the same way as it has been put before this court today. Mr Caldwell, who also appeared before the District Judge, has essentially put the matter under three headings. He does not seek to attack the validity of the warrant. His first point is based on section 25 of the 2003 Act and is in the form of a submission that it would be unjust or oppressive to expedite the appellant because of his physical or mental condition. There is tied to that a submission that it would be also in breach of Article 3 of the ECHR to return him.
7. The second submission is that the appellant ought not to be returned by reason of the passage of time, it being provided in section 14 that a person's extradition to a Category 1 territory is barred by reason of the passage of time if, and only if, it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence.
8. The third submission seeks to rely on section 21 and the need to decide whether extradition would be compatible with ECHR rights. I have already referred to the passing reference to Article 3. There is further reliance sought to be placed on Article 6 in relation to any trial that would take place in Latvia.
9. I now turn to deal with those three submissions in that order. As I have related, section 25 provides that the court must order a person's discharge if it appears to the court that the physical or mental condition of the person in respect of whom the warrant is issued is such that it would be unjust or oppressive to extradite him. In this regard, both counsel have referred to the judgment of Smith LJ in Bhoudiba v Central Examining Court No.5 of the National Court of Justice, Madrid, Spain [2006] EWHC 167 Admin, who said at paragraph 65:

" . . . the court should keep its eye firmly on the statutory question posed by section 25. The question is not whether the appellant is suffering from a psychiatric disorder with or without the added disadvantage of low intelligence; it is whether, by reason of his mental condition it would be unjust or oppressive to extradite him."

10. The use of the words "unjust or oppressive" is plainly derived from their earlier statutory use, as explained by Lord Diplock in Kakis v The Government of the Republic of Cyprus [1978] 1 WLR 779 at page 782 where he said:

"'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair. Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it would be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of a delay due to such causes are of his own choice and making. Save in the most exceptional circumstances, it would neither be unjust or oppressive that he should be required to accept them."

11. The ground of appeal based on section 25 and the mental condition of the appellant focuses on the word "oppressive" rather than the word "unjust". All that was said in the course of written submissions about return being unjust is that the appellant would have difficulties of recollection and difficulties of giving a proper account of himself in view of his mental condition. As will become apparent, that is an unsustainable submission.
12. As regards oppressiveness, the evidence before the District Judge, in addition to the evidence of the appellant and his long -term partner, came from a consultant psychiatrist, Dr Ahmed Farah, whose most recent report was dated 27th February 2006. In addition, the District Judge had material about conditions in Latvia, in particular for persons in detention. This material took the form of reports provided by the European Committee for the Prevention of Torture ("CPT") and a report from Dr Brad Blitz of Oxford Brookes University, who also gave evidence before the District Judge.
13. Dr Farah's diagnosis was that the appellant's current mental health problems are ones of a depressive illness of a moderate/severe degree and a severe Post -Traumatic Stress Disorder. Dr Farah said in his report that if the condition is treated properly then the appellant is quite likely to make slow but steady improvement over a period of two years or so. If on the other hand it is not treated properly then the most likely prognosis is for the condition to continue to deteriorate further, and it could become chronic with a risk of suicidal ideation. Dr Farah was not in a position to comment on the standard of medical care in Latvia, whether in custodial institutions or otherwise.
14. It is plain from the decision of the District Judge that he was not especially impressed with the evidence of Dr Farah. In particular, he was critical of the fact that Dr Farah seemed to proceed on the basis that everything that the appellant had told him was true. Indeed, Dr Farah admitted as much. Be that as it may, the District Judge did not reject the diagnosis about depression and Post -Traumatic Stress Disorder. He was also critical of the evidence of Dr Blitz, on the basis that it had the appearance of being built on materials that were out -of -date and contained elements suggesting that it lacked impartiality and appropriate restraint. Nevertheless, it was submitted to the District Judge, as indeed it is to this court, that it would be oppressive to send the appellant, with his mental health in the condition that it is, back to Latvia having regard to what is known about medical, and particularly psychiatric, services in pre -trial custodial institutions.
15. The District Judge came to a number of conclusions about the appellant which are relevant to the question of oppression. In particular, he found on the basis of the evidence of Dr Farah that the appellant would be fit to plead and stand trial if he were to be returned and that he is not in need of hospitalisation. He also considered there to be some significance in the fact that the appellant was holding down employment in this country and was able to sustain a long -term relationship with his partner. He observed that the CPT reports were dated and preceded the accession of Latvia to the European Union, which occurred on 1st May 2004. He took into account material recently provided by a judge of the court in Latvia to the effect that if the appellant were to request a check on his mental health following return to Latvia, he would receive it. Moreover, the Latvian judge observed that work was in progress in Latvian prisons and detention centres "in order to arrange them according to EU standards".
16. As this is an appeal under section 26 of the 2003 Act, in the circumstances of this case this court could only allow the appeal if the District Judge ought to have decided the question before him differently and, if he had decided that question in the way he ought to have done, he would have been required to order the person's discharge. Accordingly, the task of this court is to consider whether the District Judge ought to have decided the questions arising under section 25 in relation to the mental health of the appellant "differently".
17. In my judgment, it simply cannot be said that he ought to have decided any of those questions differently. He was entitled to reach the conclusion that he did on the basis of the evidence before him. Although he appears to have accepted the diagnosis of Dr Farah, he was entitled to be sceptical about some aspects of the doctor's evidence in view of the well -founded criticism of his methodology. He was undoubtedly entitled to form the view that he did about Dr Blitz and to consider the CPT materials and the Latvian Government's responses in their chronological place, and alongside the more recent material received from the Latvian Court.
18. In making his submissions, Mr Caldwell appeared at one stage to treat oppression and hardship as synonymous, no doubt because Lord Diplock had referred to hardship when explaining what was meant by oppression. However, I do not understand it to be submitted, nor could it be submitted, that any amount of hardship is sufficient to satisfy the requirement of oppression. In most, if not all, extradition cases there will be an element of hardship in return to the country from which the request emanates, and that hardship will be all the greater where a person has mental health or other personal problems. The concept of oppression is more demanding than that. It sets the standard higher than that and, in my judgment, the hardship which may exist in this case is not such that would oblige the District Judge or this court to conclude that it amounts to oppression. In my judgment, plainly it does not.
19. For those reasons, I have come to the conclusion that the ground of appeal based on section 25 and the mental health of the appellant must fail. There is, as I have said, a related submission based on Article 3 of the ECHR. Clearly, Article 3 and section 25 are not identical in their requirements, otherwise there would be no point in having section 25 in the light of section 21. However, in relation to Article 3 there is an even greater problem as regards the minimum level of severity which the appellant would have to establish. As Lord Bingham of Cornhill said in the case of Ullah v Special Adjudicator [2004] 2 AC at page 352 B:

"In relation to Article 3 it is necessary to show strong grounds for believing that the person if returned faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment."

20. Whilst there no doubt are cases in which medical and custodial conditions in another country may be such as to involve a breach of Article 3 (see, for example, Aerts v Belgium, a decision of the European Court of Human Rights 25357/94 at paragraph 64), such circumstances do not exist on the evidence in the present case. For my part, I cannot conceive that an appellant who failed under section 25 on factual circumstances such as in the present case could succeed by reference to Article 3.
21. I now turn to the second ground of appeal which relates to delay. As I have already related, section 14 headed "Passage of time" bars extradition by reason of the passage of time:

" . . . if and only if it appears that it would be unjust or oppressive to extradite . . . by reason of the passage of time since he is alleged to have committed the extradition offence."

The primary case for the appellant before the District Judge, so far as this issue was concerned, was that he had left Latvia for this country because of his problems with the police which were unconnected with the assault on Petrovs, and that he was unaware that by leaving Latvia he was in breach of any obligation to the prosecution or to the court in that country. There was a stark issue of fact. The case for the Latvian Government was, and is, that the appellant had signed an undertaking in Latvia to the effect that he would remain at his then address pending the conclusion of the proceedings. There was a document before the District Judge, and there is the same document before this court, certifying such an undertaking. It is referred to in the European Arrest Warrant. The District Judge simply disbelieved the appellant when he said that he had not signed such a document. That was an important finding of fact. In my judgment, it was undoubtedly a finding that was open to the District Judge, having regard to the properly authenticated document from Latvia and the fact that he had formed a negative view of the appellant's evidence in a number of other regards.

22. Accordingly, when one considers the question whether the District Judge ought under section 27(3)(a) to have decided that question differently, I am of the firm conclusion that he ought not to have done so. The evidence was compelling and the finding wholly unsurprising. It of course underwrote the further finding that the reason why the appellant had left Latvia and come to this country in the first place was to evade the criminal proceedings rather than to flee from mistreatment at the hands of the police in relation to the matter of the unpaid debt and the beating.
23. Once it is accepted, as in my judgment it must be, that the appellant had signed the undertaking and knew full well that he was in breach of it when he left Latvia and was from that point unlawfully at large, this ground of appeal falls to the ground. The delay was brought about by the appellant's own act. Mr Caldwell did seek to put this ground on the alternative basis that there was an unacceptable passage of time after the discovery of the appellant's whereabouts, but I am entirely satisfied that there was not and that all took place promptly from that time to this.
24. I turn finally to the question of the appellant's human rights in the context of section 21 which requires the court to consider whether extradition would be compatible with ECHR rights and to discharge him if that question is answered in the negative. I have referred already to the case as it was put by reference to Article 3. It simply remains to deal with an alternative submission which was made by reference to Article 6. It comes about in this way. The complainant in respect of whom the prosecution was commenced in 1999, Mr Petrovs, made a statement to a notary in Latvia in November 2005. In it he referred to his dispute with the appellant and says that: "As a result of this conflict I had bodily injuries", referring also to the date of 12th July 1999. He goes on to say that now all the dispute between himself and the appellant is in the past, adding:

"I also declare that I am not willing to take part in any court proceedings which could be initiated against Aleksandrs Prancs in relation to the conflict mentioned above as well as I will not be the initiator of such proceedings."

Mr Caldwell submits that this is evidence that Petrovs would not give evidence at any trial in Latvia and that consequently the appellant could not receive a fair trial in Latvia compliant with Article 6, and in particular Article 6(3)(d) which refers to the right to examine or have examined witnesses against him.

25. It is common ground that in order to rely on Article 6 in the present context, it must be shown, in the words of Lord Bingham in Ullah:

" . . . that a person has suffered or is suffering a flagrant denial of a fair trial in a receiving state."

In my judgment, the appellant cannot satisfy that stringent test. Taking the statement of Petrovs at face value, as I am prepared to do, it is no more than evidence that on the date that it was made Petrovs was an unwilling witness. That does not prove that in Latvia, any more than in this country or elsewhere, such a witness would refuse to testify when the matter came to trial. We have not been referred to any of the minutiae of Latvian law, but it would be surprising if they did not include procedures and processes whereby witnesses can be compelled to attend court and to give evidence and to face sanctions if they refuse to do so. Again, it is common, and indeed now established in this country, that in some circumstances the statements of absent witnesses can be read as evidence without there being any breach of Article 6. Much depends on the circumstances. We do not know what motivated Petrovs at the date of his statement almost a year ago, and, in my judgment, it would be inappropriate for us to speculate what his response would be when his attendance as a witness was sought, if necessary by compulsion, at the eventual trial. In my judgment, Mr Caldwell has not begun to establish a breach of Article 6 if extradition were to take place.

26. I do not find any of the grounds of appeal to be established. I conclude that the District Judge came to a proper decision. It cannot be said that he ought to have decided any relevant question differently. For those reasons, I would dismiss the appeal.
27. MR JUSTICE BEAN: I agree.
28. MR CALDWELL: The only application I seek is for Community Legal Services funding assessment.
29. LORD JUSTICE MAURICE KAY: Certainly. Thank you both very much indeed.