England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		14th June 2007

1. MR JUSTICE CALVERT-SMITH: This application has been listed without notice: indeed not just to the Crown Prosecution Service, who have hitherto represented the Polish authorities in this case, but to the court. The application is for a writ of habeas corpus in respect of the applicant's impending detention and extradition to Poland. He faces charges in that country relating to what the court has been told are high profile allegations. He has exhausted all remedies by way of appeal in respect of the extradition process. That process has been conducted under the Extradition Act 2003 and the time frames imposed by that Act, deriving as it does from the framework decision.
2. The applicant is due to be extradited, so the court has been told, some time tomorrow. Efforts to persuade the Polish authorities to agree to a deferment of the extradition under section 36(3)(b) of the 2003 Act have met with refusal, albeit that the Polish authorities in correspondence have indicated that they will send a doctor from Poland to accompany the applicant.
3. The application is based upon a deterioration in the applicant's medical condition. In support of that he has submitted two reports concerning his current medical condition, together with grounds which both restate opposition to extradition generally, but also the specific ground in connection with his medical condition. He suffers from depression and from consequent difficulties with his blood pressure.
4. By section 25 of the 2003 Act the English court would have been able to have ordered the applicant's discharge or, alternatively, to adjourn the hearing if satisfied that the physical or mental condition of the person was such that it would be unjust or oppressive to extradite. Counsel has informed me that a great deal of argument, some three days in total, was devoted in effect to the question of whether section 25 should apply in this case, and the decision was that it did not.
5. The decision to extradite by the Deputy Senior District Judge was taken on 1st December 2006. Since then an appeal to the Divisional Court has been dismissed. There have subsequently been attempts to persuade no less than four Lords Justices of Appeal at various hearings or paper applications to effectively stay the process, the most recent of which was on 8th June. On that date, the court was told, Laws LJ refused any further adjournment or stay.
6. What is said today is that the applicant's legal representatives have only this week become aware of the decision of the Court of Appeal in the case of Hilali v Governor of HMP Whitemoor and others [2007] EWHC 939 (Admin). In that case the Administrative Court, presided over by Smith LJ, held that there are, albeit exceptionally rare, circumstances in which habeas corpus can be deployed to prevent an otherwise lawful extradition under the Extradition Act procedures.
7. In Hilali, without going into the detail, events in the issuing country concerning the trial of others concerned in the same charge or charges as the claimant meant that the whole basis for the original warrant had fallen away and that therefore it would be inconceivable for extradition to have been ordered by the Senior District Judge, as it was in that case, had the facts which had caused the trial of others effectively to collapse been known to him. That is of course a completely different factual situation to the one that faces me today. What I have to deal with is what might be thought to be an entirely predictable state of affairs, that having fought as hard as he possibly could fight extradition to Poland and lost his last appeal, his depression has markedly increased and therefore there are more concerns even now than there were at the time of those hearings about his health. As I say, that is a markedly different situation to the one which obtained in Hilali.
8. Counsel has also frankly conceded that there being perhaps somewhat of a dearth of authority, the applicant has hardly known where to turn in his efforts, having lost his final appeal, to prevent his extradition. The court is informed that tomorrow Laws LJ, who has already heard argument, albeit not with the benefits as I understood it of the case of Hilali, to which I have just referred, would be free to consider the case. Well that is as may be, but I have been asked to decide the matter on material available to me.
9. In the emergency application document the court was informed that the Crown Prosecution Service, who are effectively agents of the issuing authority in Poland, have ordered the police to remove the applicant from his hospital bed and, a little later, that the police have agreed not to do this until 2.00pm tomorrow. During the hearing the court became aware, because letters were handed up, of the issuing authority's undertaking that a doctor would be coming from Poland to escort the applicant back in view of "his ill-health".
10. In view of what I was told in the emergency application, I asked why it was necessary for the case to be listed before me at all. I was told that there is some doubt, as a result of telephone conversations with the Crown Prosecution Service and later the police, as to exactly when and how it is proposed to take the applicant from hospital to some form of transport and thereby on to Poland.
11. I am grateful to Miss Baruah and Mr Turner for their submissions, and I have considered carefully the one authority upon which they rely. I see no ground here for applying the wholly exceptional remedy referred to in the case of Hilali, which I repeat was decided on a whole different factual basis. The Framework Decision, which gave rise to the Extradition Act 2003 and according to which courts are enjoined if possible to interpret the Act, is perfectly clear: so far as possible extradition should be dealt with in same way that arrest or other forms of detention are carried out within state boundaries, as applies to them being dealt with across the state boundaries of member states.
12. Miss Baruah has compared the situation to a person awaiting deportation following adverse decisions of this court in, for instance, an asylum case and I have considered the question of prisoners who await trial in this jurisdiction and have a medical condition. She rightly concedes that what is in issue here is not the procedure that may take place in Poland, the trial procedures, the pre-trial procedure, even perhaps further investigation procedures which may take place in that country, but the simple question of the actual surrender.
13. In those circumstances, albeit it is perfectly clear that he is in a worse condition than he was as a direct result of his disappointment at being ordered to be extradited, I cannot order habeas corpus. If of course he is still here and Laws LJ is persuaded to a different point of view tomorrow, then no doubt things will change.
14. MISS BARUAH: I am grateful, my Lord. Thank you very much for hearing us so late. We appreciate it.
15. MR JUSTICE CALVERT-SMITH: Not at all. You better have your Extradition Act back.
16. MISS BARUAH: Thank you very much, my Lord.
17. MR JUSTICE CALVERT-SMITH: Was there anything else that was yours, rather than should stay with the court? I do not think there was.
18. MISS BARUAH: Just the CPS letters.
19. MR JUSTICE CALVERT-SMITH: Oh the letters, yes. They will of course be necessary if you do come back again.
20. MISS BARUAH: Yes.
21. MR JUSTICE CALVERT-SMITH: Because they did somewhat change the landscape. Thank you very much.
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