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 WC2A 2LL
		2 December 2009

1. LORD JUSTICE DYSON: This is an appeal brought pursuant to section 25 of the Extradition Act 2003 ("the 2003 Act") against the decision of District Judge Workman made on 8th September 2009 ordering the appellant's extradition to Poland to answer a charge of forging a registration certificate in respect of a stolen motor vehicle. Poland is a designated Part 1 territory. This is an accusation case. It was conceded below that all the requirements of the 2003 Act had been complied with and that no bars or human rights issues arose.
2. The sole issue in the case related to the appellant's health. The case advanced on his behalf was that his physical and mental condition were such that it would be unjust or oppressive to extradite him. Section 25 of the Act was relied on. That provides:

"(1) This section applies if at any time in the extradition hearing it appears to the judge that the condition in subsection (2) is satisfied.

(2) The condition is that the physical or mental condition of the person in respect of whom the Part 1 warrant is issued is such that it would be unjust or oppressive to extradite him.

(3) The judge must -

(a) order the person's discharge, or

(b) adjourn the extradition hearing until it appears to him that the condition in subsection (2) is no longer satisfied."

3. There was a certain amount of medical and other material before the District Judge. This included, in date order, a letter from Dr. Dicker, the appellant's general practitioner. That letter is dated 4th June 2009 and states that the appellant has been registered with Dr. Dicker since February 2009, during which time he has attended on a number of occasions, mainly in relation to his substance abuse. The letter states that the appellant had been travelling in Europe during the preceding four years, during which time he had been subject to a European arrest warrant. That is the warrant with which we are concerned which was issued in February 2008. The doctor says that before travelling in Europe the appellant had been under the care of Professor Graham Foster at St. Bartholomew's Hospital for hepatitis C. The letter concludes:

"It seems he has re-made contact with the hepatitis department at St. Bartholomew's Hospital and is thinking of starting treatment for hepatitis C in the near future."

4. The next document to which the attention of the district judge was drawn is a psychiatric report from a Dr. Olowu, which dealt with issues concerning the appellant's mental health. That report stated that the appellant had been suffering from hepatitis C since 1982. He was awaiting B Interferon treatment, a six month course. Dr. Olowu noted that the appellant had not had any psychiatric admission and was not in receipt of any formal psychiatric treatment on the NHS. The report stated that the appellant did not have suicidal ideation although he said he would self harm if sent to prison in Poland. The report also stated that the appellant had symptoms suggestive of a diagnosis of mental and behavioural disorder due to multiple drug use and use of other psychoactive substances as well as traits of a dissocial personality disorder and mild depression. The conclusion was that the risk of deliberate self harm would be increased if the appellant were extradited and imprisoned in Poland.
5. The other medical evidence consisted of a letter from Dr. Kooner from St. Bartholomew's Hospital dated 30th July 2009, which said that:

"we are keen to offer him treatment for his chronic Hepatitis C as he has a good chance of eradicating this virus."

6. The matter came before the senior district judge on 7th September. In addition to that medical material there was also before the district judge a letter dated 8th May 2009 from the District Court in Suwalki in Poland, which was a response to the request for information about what facilities and treatment would be available to the appellant were he to be extradited to Poland. The letter said:

"Your information regarding the health condition of the a.m. subject are far from being sufficient to provide a full and unequivocal answer to your question. In particular, you did not specify if the a.m. Subject was currently treated for the viral hepatitis B, and if so, what treatment was being applied. In the event the a.m. Subject is being treated with interferon or ribavirina, the treatment can be continued only at the detention centre facility in Potulice."

7. I confess that I had difficulty in ascertaining from Mr. Fidler precisely what the grounds of appeal were. At one point he said that he accepted that on the material before him the district judge had reached the right conclusion. Later he retracted that. The district judge referred to all the material to which I have just referred. He said that he could find no evidence to support the contention made on behalf of the appellant that his illness was so grave that if he did not receive the treatment his life would be in danger. The district judge said that he was satisfied on the information provided in the letter of 8th May 2009 that treatment with interferon could be provided at the detention centre facility in Potulice. The district judge recorded the submission made on behalf of the appellant that, because the illness was misdiagnosed as hepatitis B rather than C, the Polish detention facility would be unable to treat him properly. The district judge rejected that submission. He said:

"The treatment being offered in the United Kingdom is the same as can be provided at the Potulice detention facility. In my view, there was no evidence whatsoever to support the submission that the appellant should be discharged by virtue of his physical or mental condition".

8. Accordingly he ordered extradition to take place. After a series of questions from me, it became clear that Mr. Fidler is indeed saying that the district judge reached the wrong conclusion on the material before him. He goes on to submit that the district judge, having found that it would not be unjust or oppressive to extradite the appellant, should have adjourned the extradition hearing pursuant to section 25(3)(b) in order to allow the appellant to undergo treatment for hepatitis C at St. Bartholomew's Hospital in London. Mr. Fidler seeks to bolster his appeal by documents which were handed in this morning. These include a letter from St. Bartholomew's Hospital dated 27th November which states:

"This gentleman [the appellant] was diagnosed with chronic hepatitis C Genotype 3. He has had this diagnosis for over 25 years. He has recently undergone a liver biopsy with the aim of commencing treatment in the near future once the biopsy results are back. Ideally he should remain in the UK, at least until his six month treatment course is completed. There are obviously numerous side effects attached to this treatment, as well as the regular commitment of weekly attendance. If Mr. Reece-Edwards is extradited to Poland, we are unclear as to whether Poland offers treatment for chronic hepatitis C."

9. I have to say that in my judgment, and leaving aside for the moment the new material, this was a completely hopeless appeal and should never have been brought. I regard it as very worrying that legal aid was granted to mount this appeal. It is well established that the hurdle that has to be surmounted in order to satisfy the requirements of section 25 of the 2003 Act is a very high one. That has been held in a number of cases. It is sufficient to refer to the decision of this court in R v (on the application of Syed Talha Ahsan) and Others [2008] EWHC 666 (Admin). In my judgment, on the material that was before the district judge this case came nowhere near crossing that high threshold. The decision of the district judge was unimpeachable. There is no evidence that the condition from which he has been suffering for some 25 years has deteriorated markedly. The fact is that he has been living with this condition for a very long time and apparently leading a relatively normal life, including travelling abroad. Not only that, but the evidence before the court was that the appellant would be able to receive treatment for this condition in Poland. Mr. Fidler makes the point that the letter of 8th May 2009 refers to treatment for hepatitis B whereas the appellant is suffering from hepatitis C. As I understand it, this was a response to information which had been provided on behalf of the appellant. Perhaps of more significance, the evidence indicates that the treatment for hepatitis C is the same interferon drug as is used for the treatment of hepatitis B. If it were to be argued on behalf of the appellant that Poland does not have the medical facilities to treat a patient who suffers from hepatitis C, although it does have the facility to treat one suffering from hepatitis B, then it would be incumbent on the appellant to adduce evidence which had that rather surprising effect. There is no such evidence. The district judge was right to reject the submission that was advanced below. Accordingly, I am in no doubt that the appeal advanced on the basis of the material that was before the district judge is totally without merit, should not have been in receipt of legal aid and should not have been brought.
10. Mr. Fidler seeks to mitigate the position by relying on the letter of 27th November to which I have referred. He has not said that in mounting this appeal he was aware that such material existed or would become available. It is that feature of the case which causes me such anxiety about the circumstances in which legal aid was obtained in this case. I turn to the letter of 27th November. It does not seem to me that that improves the appellant's case at all. It merely shows that the appellant, if he stays in this country, is apparently likely to receive a six month course of treatment for his hepatitis C. That does not begin to meet the point that he could not receive such treatment in Poland. In my judgment, this new material does not advance this appeal at all. In those circumstances this appeal must be dismissed.
11. MR. JUSTICE TUGENDHAT: I agree. I specifically wish to associate myself with the remarks of my Lord as to the worrying circumstances in which this appeal came to be brought.
12. LORD JUSTICE DYSON: You have your legal aid. There is nothing we have to say that affects that.
13. MR. FIDLER: Yes.
14. LORD JUSTICE DYSON: I am concerned about this. I say this so that it is on the record again. This was a completely hopeless case. You know as well as I know that legal aid resources are very precious these days. They should not be wasted on hopeless cases of this kind.
15. MR. FIDLER: That is understood, my Lord.