England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		7 December 2009

1. MR JUSTICE HICKINBOTTOM: The Appellant Szilvia Némethné Lendvai appeals against the decision of Designated District Judge Nicholas Evans of 7 July 2009, ordering her extradition to Hungary to face two charges of fraud, that extradition being sought by the Veszprém City Court pursuant to a European Arrest Warrant issued on 19 January 2008 and confirmed by the Serious Organised Crime Agency on 28 July 2008. It is alleged that, on 15 and again on 26 November 2005, the Appellant with her partner Ms Gyöngi Meder submitted applications for product loans to the Elektro Pont Shop in Tapolca, Hungary, using false documents, the resulting loans therefore being procured by deception causing a 400,000 HUF (about £1,200) loss to the bank extending the credit.
2. Hungary has been designated a Category 1 territory pursuant to Section 1 of the Extradition Act 2003. Consequently, Part 1 of the 2003 Act applies. Because it is relevant later, I should also add that Hungary is a ratified signatory to the European Convention on Human Rights ("the ECHR").
3. Before the District Judge, the Appellant relied upon two grounds for contending that she should be discharged.
4. First, it was submitted that the Appellant's extradition was barred by extraneous considerations. Under Sections 11(1)(b) and 13(b) of the 2003 Act, a person's extradition is barred if it appears that -

"if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions."

The Appellant contended that, if extradited to Hungary, she would be so prejudiced because she is a Roma and a lesbian.

5. Second, for similar reasons and having regard to the risk of her committing suicide if returned to Hungary, it was submitted that the Appellant's extradition would not be compatible with her rights under Articles 3, 6 and 8 of the ECHR.
6. The District Judge rejected those submissions, and ordered the Appellant's extradition. She now appeals under Section 26 of the 2003 Act. By Section 27(3), an appeal may only be allowed if the District Judge ought to have decided a question before him differently and, if he had decided that question as he ought to have done, he would have ordered the person's discharge. Reflecting her submissions before the District Judge, Miss Rachel Kapila for the Appellant contended before me that the District Judge ought to have found (i) that, if extradited to Hungary, the Appellant might be prejudiced at trial or punished, detained or have her liberty restricted by reason of her race and/or sexual orientation, and (ii) her return to Hungary would put the United Kingdom in breach of its obligations under the ECHR. While each of those grounds was maintained, the focus of Miss Kapila's submissions before me was that, in all of the circumstances but particularly in the light of the high risk of the Appellant committing suicide if returned to Hungary, in extraditing her the United Kingdom would be in breach of its obligations under Article 8 of the ECHR.
7. Each ground relied upon the same factual background. In addition to her own evidence, before the District Judge the Appellant relied upon three experts who gave evidence as to discrimination in Hungary against Roma and those of a sexual orientation other than heterosexual.
8. Dr Martin Kovats is a part-time lecturer in European politics at Birkbeck College, University of London, and has conducted research into Roma policy in Hungary and elsewhere in Europe. He produced two reports dated March and May 2009, and gave oral evidence before the District Judge.
9. He said that there was widespread ground-level prejudice and discrimination against Roma in Hungary, with a recent "sharp rise in racism in public discourse" (March 2009 Report, paragraph 15). Regarding treatment of Roma in the criminal justice system, in giving any opinion he said that he was constrained by a lack of data. However, in Hungary, the law prohibited discrimination and required equal treatment. He said he "would hope" that any judge in Hungary would act in accordance with the law and due process.
10. He acknowledged in cross-examination that there was some evidence of the Hungarian courts acting to protect the rights of Roma: and, since 2005, the Hungarian government had set up an Equal Treatment Agency within the Ministry of Social Affairs to deal with complaints involving any form of discrimination. They appeared to uphold about 50% of complaints made (March 2009 Report, paragraph 19). Parliamentary Commissioners for Civil Rights and Minority Rights have also been appointed. Successive Hungarian governments, he said, have sought to improve police attitudes/behaviour towards Roma (paragraph 25). As they were relatively well-educated, he considered the Appellant and her partner (who is half-Roma) were not the most vulnerable individuals within the Roma community. He said there were data to suggest that 35-60% of the prison population in Hungary is Roma. The most recent report of the Council of Europe's European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment, based upon visits to Hungarian penal institutions, made no adverse comment about the treatment of Roma.
11. The second expert was Dr Judit Takács, an expert in gay and lesbian issues at the Institute of Sociology at the Hungarian Academy of Sciences, Budapest, who gave evidence in the form of an undated written report. She said that the Appellant is protected from discrimination on the grounds of sexual orientation "in theory", by which I understand her to mean "by law" which has prohibited discrimination on the basis of sexual orientation since 2001. However, she said that in practice the Appellant was still at risk of discrimination, and indeed of "multiple discrimination" on grounds of ethnicity and sexual orientation (Report, paragraph 5). She said that there was "a theoretical possibility" that the Appellant may not receive a fair trial because of her sexual orientation, but there is no way of proving empirically that such discrimination "has ever happened in Hungary ... nor that this is very likely to happen in the future" (paragraph 4).
12. Third, there was a report from Professor Gábor Halmai, Director of the Institute of Political and International Studies at Eötvös Lóránd University, and of the Hungarian Human Rights Information and Documentation Centre. His short report agreed with the views of Dr Kovats and Dr Takács.
13. The Appellant also relied upon a US Department of State Country Report on Human Rights Practice in Hungary (25 February 2009), which expressed general concern about rising levels of discrimination in Hungary against Roma, including reports of police abuse; and against gays, by "extremist groups".
14. Before the District Judge, the Appellant herself gave evidence, saying, in general terms, that she and her partner had suffered much discrimination in Hungary on the grounds of their Roma ethnicity and sexual orientation (statement 7 May 2009, paragraph 2).
15. About 6 years ago, the Appellant served a 9 month prison sentence in Hungary. Her statement said that this was served in 2003, but that was corrected before me to 2004. It was in prison that she met her current partner. She described her sentence as traumatic. Prison officers had made her have cold showers; they used abusive, discriminatory language; on one occasion two officers chained her to a lamp-post outside in the rain for over an hour; parcels sent to her were never received; telephone calls were restricted to a few minutes; she was not allowed to work in prison, nor was she allowed the usual 3 days per month home leave. However, the Hungarian Ministry of Justice and Law Enforcement, and the Hungarian Prison Headquarters, have said, in a letter dated 26 May 2009, that the Appellant made no contemporaneous complaints about this treatment. She had the right to make such complaint under the statutory provisions which flow from Article 70A of the Hungarian Constitution, which guarantees respect for human rights without discrimination on any ground.
16. Finally, the Appellant relied upon a report dated 11 June 2009 from Dr Richard Pool, a consultant psychiatrist in independent practice, following an interview with the Appellant on 28 May 2009 and consideration of various documents.
17. The reportage given to Dr Pool by the Appellant is instructive. The Appellant described two acts of serious self-harm: one in about 1995, when she cut her wrists after she had fallen into contact with "the wrong type of people" (paragraph 8.6); and the second in about 2003, when she took an overdose after she found out that the father of her child had had an affair (paragraph 8.10). Neither incident was apparently related at all to difficulties resulting from her ethnicity or sexual orientation. When she was asked about her time in prison in Hungary, she said she had not coped well with that, but she did not harm herself because "there was no opportunity and I had my daughter (to think about)" (paragraphs 17.4 and 17.6). When asked if she worried about being sent back to Hungary, she said she did not worry for herself but that she was mainly worried about her daughter. She said she did not care about herself. She only cared about her daughter (paragraph 21.4). She described herself as "a bit stressed and nervous about her whole situation" (paragraph 23.4).
18. In relation to going back to Hungary, in the statement that had been provided to Dr Pool, the Appellant had said:

"I am capable of killing myself if I am returned to Hungary ..... I feel that if I am returned back to Hungary I will have no other option than to commit suicide."

However, in her interview with Dr Pool, she said:

"Basically, I don't know what would happen if I returned to Hungary. I'm frightened to go back." (Paragraph 21.8).

She appeared particularly concerned about the difficulties in obtaining employment in Hungary, because of her Roma ethnicity (paragraph 21.11), and the potential loss of "a better future" for her daughter in the United Kingdom (paragraph 21.11).

19. There is no evidence that the Appellant has ever sought or been referred to any psychiatric medical services, either in Hungary or the United Kingdom: and it is noteworthy that Dr Pool did not suggest that she would need, or should have, any psychiatric treatment if extradition were ordered.
20. Although Dr Pool was unable to say that the Appellant suffered (or had ever suffered) from a recognised psychiatric condition, he notes that -

"There is clear evidence that [the Appellant] has a potential vulnerability to act in significant acts of self harm in times of stress..."

and her return to Hungary

"would lead to the total collapse of the apparent constructive and supportive life that she has around her.'" (Paragraphs 25.6 and 25.7).

He considered that, if she were returned to Hungary, she would lose the protection and support she benefits from in the United Kingdom, at a time of inevitable emotional stress: and, as a result, he concluded that -

"to return [the Appellant] to Hungary carries a high risk of her committing a completed act of suicide ..... in the context of an impulsive act." (See paragraphs 4.4, 25.11, 26.3 and 26.4).

21. Not much of that evidence as a whole was in issue, although the District Judge did not accept the Appellant's account of previous mistreatment in prison (judgment, Paragraph 7). In relation to Dr Pool's evidence, he noted his conclusion that if the Appellant were returned "it carries a high risk of her committing a completed act of suicide". But, on all of the evidence, the judge found that it would not be in breach of the Appellant's rights under Articles 3 or 8 to extradite her. Without expressly dealing with the level of suicide risk, the District Judge found that the Appellant was a manipulative witness who was prepared to subvert the extradition process if she could, and he doubted that she would do anything (such as commit suicide) that would deny her child a mother (judgment, paragraph 9(4)). In making an extradition order, he directed that a copy of Dr Pool's report accompany her and the Hungarian authorities - the determination says "Romanian authorities", but that is clearly a mere typographical error - be alerted to Dr Pool's concerns.
22. The only additional evidence relied upon by the Appellant before me, that was not before the District Judge, concerned a further episode of self-harm on 5 September 2009, when the Appellant deliberately lacerated her left wrist and was hospitalised for three days. Her statement of 3 December 2009 said that this was a deliberate attempt to take her own life.

"because the extradition proceedings had become too much for me. I simply gave up on everything. I lost hope."

23. The harm was clearly significant - it required surgery to repair nerves and arteries, and a 3-day stay in hospital - but how close to a successful suicide bid this was is unclear from the evidence. On the medical notes there is no reference to it being an attempted suicide, and the follow-up was only for physiotherapy and a 3-month outpatient's appointment. Neither psychiatric follow-up nor a suicide watch was apparently thought appropriate. There have been no further episodes of self-harm.
24. The Appellant's recent statement was accompanied by a letter dated 2 December 2009 from her GP (Dr Unnikrishnan) who dealt with her follow-up, in terms of physiotherapy etc. That letter confirmed that, despite being a regular attendee at the surgery, the Appellant has never consulted her doctor "with any specific symptoms or signs of depression", nor, it seems, any psychiatric symptoms at all.
25. I now turn to the Appellant's grounds of appeal. As I have said (paragraph 6 above), while all grounds were maintained, the focus of Miss Kapila's submissions before me was that, in all of the circumstances but particularly in the light of the high risk of the Appellant committing suicide if returned to Hungary, the United Kingdom would be in breach of its obligations under Article 8 to extradite her. I consider her modesty in the pursuit of the other grounds was well founded. I do not consider those grounds have merit, for the following reasons.
26. The first ground was that, if the Appellant were extradited, she would be prejudiced at her trial, or punished, detained or restricted in her personal liberty by reason of her Roma ethnicity and/or sexual orientation. The District Judge found there to be no substantial ground for thinking that that would occur. On the evidence before me, I cannot say the District Judge was wrong. Indeed, I consider he was clearly correct.
27. There is a substantial amount of evidence that, within the Hungarian population, there is significant prejudice against Roma and, although less, also against lesbians. However, before the District Judge and now before me there is very little evidence, if any, that there is discrimination within the justice system. Dr Kovats acknowledged the steps that the Hungarian Government were taking to correct such popular prejudices, and, there being no juries in Hungary, he did not suggest that a judge in Hungary would not act lawfully within the Hungarian Constitution and ensure that the Appellant was tried fairly. Dr Takács went no further than to say that there was a "theoretical possibility" that the Appellant would not receive a fair trial, and she put forward no evidence of discrimination against a defendant in a criminal trial in Hungary on grounds of sexual orientation. There are simply no substantial grounds for believing the trial process will be affected by prejudice, to the detriment of the Appellant.
28. Nor is there any compelling evidence that the Appellant will suffer any significant prejudice if imprisoned in Hungary. The experts do not suggest that there would be any such prejudice. The US Government Report did not suggest that there was any particular concern about Roma in Hungarian prisons, despite their large numbers.
29. In relation to the Appellant's evidence of discriminatory behaviour against her when she was in prison in 2004, the District Judge did not accept that evidence. That was a conclusion to which he was entitled to come, having seen the Appellant give evidence. Where a judge has heard an extradition appellant give evidence, and rejects that appellant's version of events or otherwise makes adverse findings of fact, the judge's findings should ordinarily be respected (see Wiejak v Olsztyn Circuit Court Poland [2007] EWHC 2123 (Admin) at [23] per Sedley LJ, and Ogonowski v District Court of Bialystok Poland [2007] EWHC 2445 (Admin) at [10] per Richards LJ). I note in particular that the Appellant in the case before me made no contemporaneous complaint about any behaviour. In this case, there is no good reason for not respecting the District Judge's findings of fact in relation to the behaviour to which the Appellant was subject when imprisoned in Hungary, and I would not interfere with them.
30. However, in any event:

(i) Whilst the behaviour of the prison guards of which the Appellant now complains would undoubtedly have been unpleasant, it is not the most serious treatment, a matter to which I shall return.

(ii) Any such behaviour by the guards was in 2004, before the recent Hungarian Government initiatives to eliminate such behaviour, including those of 2005. There is no evidence that such behaviour would now be repeated.

(iii) Even if it were, there is no evidence to suggest a complaint about such behaviour would not be effective in preventing its recurrence.

31. For those reasons, I find that there is no substantial ground for believing that if extradited the Appellant might be prejudiced at trial or punished etc by reason of her ethnicity and/or sexual orientation. The first ground fails.
32. Turning to the second ground, and leaving aside for a moment Article 8 and the potential suicide risk, for the same reasons that too fails. Even if were accepted that, contrary to the findings of the District Judge, the ill-treatment complained of in prison in 2004 occurred and may recur if she were returned, such treatment would fall well below the high Article 3 threshold. With regard to Article 6, there is no compelling evidence that her right to a fair trial would be compromised by reason of prejudice or otherwise.
33. That leaves the primary ground upon which Miss Kapila relied, namely that, given the high risk identified by Dr Pool that she will commit suicide if she is returned to Hungary, for the United Kingdom to do so would render it in breach of its obligations under Article 8.
34. Article 8 provides:

"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

35. In this case, there is no merit in any claim based upon the Appellant's family life. She has lived in the United Kingdom for about 4 years, with her partner and their respective daughters. Her own daughter is young, and there is no suggestion that they could not reasonably relocate to Hungary. The Appellant's claim under Article 8 turns on her right to private life, and the extent to which her Article 8 right to private life is engaged by the risk that she will commit suicide of extradited to Hungary.
36. The relationship between Article 8 and mental health was considered by the European Court of Human Rights in Bensaid v United Kingdom [2001] 33 EHRR 10. The applicant suffered from schizophrenia, with symptoms of delusions, hallucinations and thoughts of self-harm that were controllable (and, in the United Kingdom, controlled) by psychotic drug treatment. It was a long-standing illness, and the prognosis was not good. His immigration applications in the United Kingdom having run their unsuccessful course, he opposed being sent back to Algeria on the ground that removal would render the United Kingdom in breach of its obligations under Articles 2, 3 and 8 of the ECHR, because of the risk that he would commit suicide if required to return.
37. The court held that mental health issues could engage Article 8. The court said (at paragraph 47):

"'Private life' is a broad term not susceptible to exhaustive definition ..... Mental health must ... be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects the right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world ..... The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life."

38. That was effectively adopted by the House of Lords in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27. Mr Razgar was an asylum-seeker from Iraq. His father had been hanged as an opponent of the Ba'thist regime then in power. Mr Razgar himself was arrested, imprisoned and tortured for 2½ years. He arrived in the United Kingdom via Germany, where he had unsuccessfully claimed asylum.
39. The psychiatric evidence was that he was suffering from post-traumatic stress disorder, pain disorder and depression, and sending him back to Germany (under the Dublin II Regulation) would be very detrimental to his mental health, and "he would make a serious attempt to kill himself".
40. The Secretary of State had certified Mr Razgar's human rights claim against removal to Germany as "manifestly unfounded" under Section 72(2)(a) of the Immigration and Asylum Act 1999, which had the effect of denying him a right of appeal to the Asylum & Immigration Tribunal in respect of his human rights claim. It was that decision that was the subject of the appeal. The question for the court was consequently whether an Immigration Judge could reasonably allow the human rights claim because, if the answer to that question were negative, then the claim would be manifestly unfounded.
41. In the now well-known and well-trodden passage (at paragraph 17), Lord Bingham of Cornhill set out the relevant questions on a claim where removal was resisted on Article 8 grounds as follows:

"(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?

(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8?

(3) If so, is such interference in accordance with the law?

(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?

(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?"

42. Because that appeal concerned a decision to certify a human rights claim as manifestly unfounded, their Lordships had only to consider whether an Immigration Judge could conclude that Mr Razgar had overcome these various hurdles. On the facts of that case, by a majority (Baroness Hale of Richmond and Lord Walker of Gestingthorpe dissenting), they found that a judge could so conclude. That of course resulted in Mr Razgar being given a right of appeal to the Asylum & Immigration Tribunal, which certification would have taken away.
43. The case before me is of course not a case concerning certification under Section 72(2)(a), or indeed an immigration claim at all. In relation to the Article 8 claim, I am not concerned with whether an Immigration Judge might conclude that a particular human rights claim has merit. In this case, the substantive question is for this court. I have to determine whether the Appellant has made out a good Article 8 claim.
44. The basis on which I approach that question, is as follows.
45. As Miss Kapila properly conceded, there is no compelling evidence that the Appellant is suffering from - or has ever suffered from - a recognised psychiatric condition. There is no evidence that she has ever sought or been offered psychiatric help, even after her most recent episode of self-harming behaviour in September of this year. Dr Pool's evidence - which, I am bound to say, I find curious - noticeably and starkly falls short of giving an opinion that she has ever suffered from any psychiatric condition. His opinion is merely that, if the Appellant loses the support and protection she receives in the United Kingdom, she would be predisposed and vulnerable to an impulsive act of self-harm, and hence he considers that, on return to Hungary, she would be at high risk of committing a completed act of suicide. The absence of any diagnosis of any recognised mental condition in this case is very different from cases such as Bensaid, Razgar and J v Secretary of State for the Home Department [2005] EWCA Civ 629 (to which I was also referred) in which the individuals suffered from severe recognised psychiatric conditions.
46. However, odd as it may be that Dr Pool says that the Appellant would be at risk of suicide if she were extradited to Hungary not as a result of any psychiatric condition but because of "emotional stresses", in the Appellant's favour I accept that the risk of suicide identified by Dr Pool will result from "mental instability". In Bensaid, "mental instability" founded the engagement of Article 8:

"The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life" (paragraph 47).

47. That having been said, Dr Pool unfortunately does not give any opinion as to how that risk of suicide might be managed, here or in Hungary. He does not suggest that, if extradited, the appellant should receive support from psychiatric services. Whether that is because he cannot identify any psychiatric condition from which she is suffering, I do not know. As I have said, she has never been referred to - nor has she ever availed herself of - psychiatric services at all. What Dr Pool does not do is to take into account the mechanisms which are or will be in place to minimise the risk of suicide. In considering suicide risk for Article 8 purposes, it is necessary to take such mechanisms into account (see J v Secretary of State for the Home Department at [59]; and also Jansons v Latvia [2009] EWHC 1845 (Admin)).
48. Furthermore, Hungary is a signatory to the ECHR. There is a presumption - a rebuttable presumption - that member states will adhere to their obligations under international treaties, including their obligations under the European Convention, to apply Article 8, the burden being upon the person alleging that his removal would constitute a breach to show substantial grounds for believing that that would be so in the country to which he would be removed (see, e.g., Razgar at [64] per Baroness Hale of Richmond; R (Nasseri) v Secretary of State for the Home Department [2009] UKHL 23 at [41] per Lord Hoffmann and at [61] per Lord Hutton; and R (Yogathas) v Secretary of State for the Home Department [2002] UKHL 36 at [35] per Lord Bingham). In this case, I consider this is a vital factor.
49. Aside from the Appellant's own evidence as to her treatment in prison in 2004 (which can be dismissed for the reasons I have already given), Miss Kapila conceded (again, if I might say so, properly) that in this case there is no evidence that Hungary would not comply with its obligations under the ECHR. Indeed, in respect of the suicide risk, the evidence from the Appellant herself was that, in her earlier stint in prison in Hungary, she did not self-harm because she was given no opportunity to do so. Dr Pool does not give any evidence to suggest that the Hungarian state authorities would not take any and all steps that they are required to take to prevent the Appellant's suicide or self-harm whilst she is in their care. It is noteworthy that the District Judge directed a copy of Dr Pool's report to accompany the appellant on her return. He clearly had the Hungarian authorities' obligations in this regard in mind.
50. I was also referred to Jansons v Latvia, in which the appellant sought to be discharged under Section 25 of the 2003 Act, namely on the ground that it would be unjust or oppressive to extradite him because of his physical or mental condition. As the President of the Queen's Bench Division (Sir Anthony May) pointed out (at [21]), unlike the ECHR, under Section 25 an appellant does not have to establish that the country by whom extradition is sought is responsible for the physical or mental deterioration. No claim under section 25 is made in the case before me, perhaps because there is no evidence that the Appellant suffers from "a mental condition".
51. In any event, given the Appellant's concession that Hungary would comply with its obligations under the ECHR - and the absence in any event of any compelling evidence that they would not observe their ECHR obligations, including their obligation to prevent self-harm - in the Appellant's case, Article 8 is not engaged at all. Where a person's right to private life will be respected equally in two Convention countries, there is no question of any interference with that right by removal from one country to another. That is confirmed in Razgar. As Baroness Hale made clear (at [64]), unless there are substantial grounds for believing that the receiving state will not comply with its ECHR obligations under Article 8, then Article 8 is simply not engaged. Her opinion was dissenting, but not on this point. Lord Bingham found that Article 8 might have been engaged because Germany might not have complied with its obligations to ensure that there was no threat to his private life (see [22]), but he clearly considered that it would not have been engaged if Germany had so complied. There was an issue between the majority and minority as to whether the evidence in that case was sufficient possibly to rebut the presumption of compliance. In this case, there is no such issue.
52. In any event, even if, contrary to my firm view, Article 8 is engaged, whilst I accept the potential consequences are sufficiently grave to get the Appellant over the second Razgar hurdle, the Appellant would still have to persuade me that the interference with her private life would be disproportionate to the legitimate public end to be achieved by her extradition, namely compliance by the United Kingdom with its international obligations to extradite her in accordance with the European Arrest Warrant which in turn is based upon the public interest of maintaining law and order.
53. Given the unrebutted presumption that Hungary will protect the Appellant's private life - so that there is no human rights downside which the public interest needs to outweigh - the balancing exercise required by the fifth hurdle in Razgar is artificial. However, the authorities show that a high suicide risk, whilst capable of engaging Article 8, is not necessarily determinative in the sense of being a trump card in terms of proportionality. That is clear from Bensaid and Razgar, but also from cases such as Miao v Secretary of State for the Home Department [2006] EWCA Civ 75. Against any adverse impact on the Appellant's private life that there might be, in this case there would have to be balanced:

(i) There is no evidence that Hungary would fail to comply with any of its obligations under the Convention.

(ii) There are no substantial objective grounds for the Appellant's fears for her return to Hungary.

(iii) Even if those fears (although ill-founded) were genuine, she has not been truthful in her account of the Hungarian authorities' behaviour towards her during her time in prison in 2004. That appears to be a factor to be taken into account (Razgar at [24] per Lord Bingham).

(iv) The Appellant does not suffer from any recognised psychiatric condition that would worsen if extradited. The only evidence concerns her emotional distress at being returned to Hungary to face the charges brought against her. That distinguishes this case from cases such as Bensaid, Razgar and Jansons.

(v) There is a lack of evidence as to whether the September 2009 self-harm incident was an attempted suicide that very nearly succeeded.

(vi) In addition to the absence of evidence that the Hungarian authorities would take appropriate steps to prevent her self-harming as they are required to do under their Convention obligation, there is no evidence that any suicide risk could not and would not be managed by appropriate intervention. The risk of self-harm during the 2004 imprisonment appears to have been managed. There was no self-harm (yet alone any suicide attempt) during that period. There is no evidence that her mental state has deteriorated since then. This case is consequently distinguishable from Jansons, in which the evidence was that, whatever steps the Latvian authorities took, the appellant would kill himself because of his mental condition.

54. Whilst acknowledging the artificiality of the exercise in circumstances in which I have found that there is no adverse impact to the Appellant's right to private life by virtue of her extradition to Hungary, had I been required to perform the balancing exercise of the fifth Razgar hurdle, I would have found that her extradition would have been a proportionate interference with that right.
55. However, for the reasons I have given, I do not consider that Article 8 is engaged in this case.
56. Turning briefly to the District Judge's judgment, I have considerable sympathy with him in relation to the evidence of Dr Pool. That evidence, whilst not diagnosing any particular psychiatric condition, included an uncontroverted opinion that the Appellant would be at risk of suicide if she were returned. However, that did not take into account the obligations of the Hungarian authorities to take steps to prevent such harm, and failed to take into account practical steps that might be taken to limit or eradicate that risk. In paragraph 9(4) of his judgment, the District Judge appears to have doubted that the Appellant would even attempt to commit suicide if extradited to Hungary. I do not consider that that was a finding open to him, in the face of Dr Pool's evidence. However, even if the District Judge erred in relation to that finding, for the reasons I have given I am satisfied that he did not err in finding that the Appellant's extradition would not be incompatible with her Article 8 rights. Consequently, the Article 8 ground too fails.
57. As a result, the appeal fails.
58. I shall hear submissions as to any further orders required, for example with regard to the timing of the extradition.
59. MISS JONES: My Lord, I appear instructed by the Crown Prosecution Service. There are no instructions as to the timing of the forthcoming extradition but bail should continue on the same grounds as before.
60. MR JUSTICE HICKINBOTTOM: You have to extradite him within ten days.
61. MISS JONES: Yes.
62. MR JUSTICE HICKINBOTTOM: Nothing that has happened in these proceedings impacts upon those ten days. Is that right?
63. MISS JONES: No. That is my understanding.
64. MR JUSTICE HICKINBOTTOM: Do you have ten days from today?
65. MISS JONES: Yes, from your order today.
66. MR JUSTICE HICKINBOTTOM: In terms of the - - without any further order from me.
67. MISS JONES: My understanding is yes, that is right, without any extra order.
68. MR BRANDON: There is no need to make an order.
69. MR JUSTICE HICKINBOTTOM: So any further orders?
70. MR BRANDON: No.
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