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
		20 April 2010

1. LORD JUSTICE PILL: Mr Okruch, the appellant, appeals under Section 26 of the Extradition Act 2003 ("the 2003 Act") against a decision of District Judge Tubbs, sitting at the City of Westminster Magistrates' Court, on 10 February 2007. The judge found that the appellant's extradition -

" ..... would be compliant with Convention rights and within the meaning of the Human Rights Act 1998 and, in accordance with Section 21 (3) of the [2003] Act, I order his extradition to Poland."

2. The appellant's return to Poland was sought by the Circuit Court at Rzeszow, Poland, following a European arrest warrant ("EAW") issued on 30 June 2008. Poland has been designated a category 1 territory under Section 1 of the 2003 Act, and Part I of the Act governs the procedures.
3. Three sentences of imprisonment had been imposed on the appellant in Poland for offences of burglary and robbery. His return is sought to serve the remaining part of the sentences imposed, a total remaining of about six years. The appellant was arrested on the EAW on 30 August 2009. There was a series of hearings at the Magistrates' Court. Adjournments were granted. The case was heard on 12 January 2010. Further information was subsequently received from the judicial authority and further written submissions were considered by the judge before she gave judgment. As summarised by the judge -

"The issues raised by the defendant [now the appellant] at this extradition hearing are that by reason of his mental health and consequent risk of suicide if he were to be placed in a Polish prison his extradition would not be compliant with Convention rights in that Article 3 and Article 8 rights would be infringed (Section 21 of the Act) and it would be oppressive to extradite him by reason of his mental condition (Section 25 of the Act) and he should be discharged."

4. The appellant gave oral evidence in detail. He admitted living a life of crime by theft and robbery when he was 18 to 19 years old. He had psychiatric problems. He served a sentence of six to seven months' imprisonment, and claimed he had been beaten by other inmates though the judge found that that was not a matter raised in his unsigned proof of evidence. He had not reported these matters to prison officers. On one occasion he had deliberately cut his hand and on another occasion he had poured a caustic substance on his chest. These were not suicide attempts, he said. The appellant said he had served the last four months of his initial sentence in a more open prison and had been able to cope. On release he drifted back into drug-taking and crime, and served a further two-month prison sentence. In evidence, the appellant expressed a fear of similar treatment to that he had received previously if returned to a Polish prison. He had found no difficulty in coping with English prison conditions and was not on any medication.
5. The judge recorded the appellant's evidence in this way when asked how he would cope in a Polish prison:

"If it was a normal, quiet time he could cope. If it was like it was before he would grab every opportunity to get out. He would try and harm himself seriously. He closed his evidence-in-chief by saying he could serve his sentence if it was 'normal' in prison."

The appellant had received no psychiatric diagnosis or treatment in the United Kingdom. He was also concerned about his mother who had come to the United Kingdom at his request. Her health was not good.

6. The judge also considered a psychiatric report dated 23 November 2009 from Dr Adrian Cree obtained in this jurisdiction. Dr Cree found no evidence of underlyimg major mental illness. The appellant did display traits of a mix of social and emotionally unstable personality disorder. He also displayed a harmful pattern of drug and alcohol abuse which at times had affected his mental state and behaviour. The underlying personality disorder was chronic in nature but not severe in degree. The judge summarised Dr Cree's evidence in this way:

"In his opinion Mr Okruch is currently at low risk of significant self-harm or attempted suicide. If returned to a harsh prison regime there would be a moderate to high risk that he would engage in increasing self-harming behaviour and a moderate risk that this behaviour may escalate to an act of suicide. With appropriate support and consideration in a prison environment these risks would remain low."

That, in substance, is a summary of [paragraph] 12.15 of Dr Cree's report on which Miss Bramwell, who appears for the defendant, relies.

7. The judge also cited paragraph 10.13 of the report. I repeat the citation:

"In my opinion Mr Okruch's risk of suicide and self-harm are not linked to extradition per se but to the type of prison setting he experiences on his return to Poland. Mr Okruch has a significant degree of vulnerability given his underlying personality difficulties and would be easily victimised in a harsh prison environment. However if it is recognised by the Polish prison authorities and if there are facilities to take his vulnerabilities into consideration by placing him in a more appropriate peer group, then Mr Okruch's risk of self-harm and suicide would be low and his mental state would be likely to remain stable."

8. In relation to Article 8, the judge stated that she understood the appellant's concern about his mother and that extradition to serve his prison sentence will be disruptive for both of them. She noted that the mother returns to Poland for medical consultation and tests. In any event, she is free to return to Poland when he does. She concluded that extradition would not breach Article 8 rights.
9. The judge also had before her three further reports. A report was submitted on behalf of the appellant by a Polish criminologist, Mr Pawel Moczydlowski. That had been prepared for another extradition case; it was dated 25 October 2009 and provided evidence about prison conditions in Poland. The judge also had before her a letter from Judge Marek Omelan dated 14 December 2009 and a letter from the judicial authority dated 18 January 2010. There is no reason to doubt that the judge took the contents of those reports into account when reaching conclusions though - unlike the evidence of the appellant himself and of Dr Cree - the contents of the reports are not summarised.
10. Miss Bramwell submits that on the evidence the judge had not been entitled to find that return to Poland would be compliant with Article 3 of the Convention. She relied on the criminologist's report. It was acknowledged at paragraph 17 of the report that forensic psychiatric wards do exist in Poland. They provide specialist care to prisoners and individuals who are under temporary arrest who are incapable of rationally coping with prison isolation due to disturbances of their mental functioning. However it is submitted in the report that the psychiatric facilities are inadequate (paragraph 18):

"The judiciary and psychiatrists should also show more interest in people who are diagnosed as being mentally ill, based on forensic psychiatric observation, and freed of criminal responsibility because of their insanity. Such people often spend many months in inappropriate conditions, waiting for admittance to a psychiatric hospital. It seems that the rules of law need to be modified so that the mentally ill who commit an offence are not treated arbitrarily. And public psychiatric hospitals should not refuse to admit such patients, as they are people who deserve the same human treatment as other mentally ill people."

11. A description of facilities followed and it is stated that in 2003 to 2005 the average waiting time for psychiatric hospitalisation was 205 days. Reference was made to the over-population of Polish prisons. It was accepted that the number of suicides in Polish prisons compared with those in other EU countries is low. The letter from the judicial authority makes the point that it is lower than in England and Wales.
12. Mr Moczydlowski, who was until 1994 the General Director of Prison Administration in Poland, refers to - and Miss Bramwell relies on - the decision of the European Court of Human Rights in Musial v Poland Application No 28300/06, final judgment given on 5 June 2009 following a referral in June 2006. That was a case where the Polish Government was found to have been in breach of Article 3 of the Convention. Miss Bramwell has referred the court to paragraphs 96 and 97. The applicant had been born in 1978. Paragraph 6 of the provides:

"The applicant has been suffering from epilepsy since his early childhood. More recently he has been diagnosed with schizophrenia and other serious mental disorders. Prior to his detention, he had attempted to commit suicide and had received in-patient treatment in a psychiatric hospital."

13. It was in that context that the court stated (paragraph 96):

" ..... The court accepts that the very nature of the applicant's psychological condition made him more vulnerable than the average detainee and that his detention in the conditions described above, with the exception of the two short periods in 2005 and 2007 and the applicant was an in-patient in a prison hospital, may have exacerbated to a certain extent his feelings of distress, anguish and fear. In this connection, the Court considers that the failure of the authorities to hold the applicant during most of his detention in a psychiatric hospital or a detention facility with a specialised psychiatric ward has unnecessarily exposed him to a risk to his health and must have resulted in stress and anxiety ..... "

14. The court's conclusion is stated in paragraph 97:

"Assessing the facts of the case as a whole, having regard in particular to the cumulative effects of the inadequate medical care and inappropriate conditions in which the applicant was held throughout his pre-trial detention, which clearly had a detrimental effect on his health and well being ..... the Court considers the nature, duration and severity of the ill treatment to which the applicant was subjected are sufficient to be qualified as inhuman and degrading ..... "

I cite the paragraph without including the authorities to which reference is made.

15. The judge referred to the decision of the Court of Appeal in J v Secretary of State for the Home Department [2005] EWCA Civ 629. In that case Lord Justice Dyson considered the approach which the court should adopt to Article 3 when it is alleged that there is a risk of suicide or serious self-harm. Lord Justice Dyson stated (I need cited only the fourth and sixth propositions):

"29 Fourthly, an article 3 claim can in principle succeed in a suicide case ( ..... Bensaid).

30 Fifthly, in deciding whether there is a real risk of a breach of article 3 in a suicide case, a question of importance is whether the applicant's fear of ill-treatment in the receiving state upon which the risk of suicide is said to be based is objectively well-founded. If the fear is not well-founded, that will tend to weigh against there being a real risk that the removal will be in breach of article 3.

31 Sixthly, a further question of considerable relevance is whether the removing and/or the receiving state has effective mechanisms to reduce the risk of suicide. If there are effective mechanisms, that too will weigh heavily against an applicant's claim that removal will violate his or her article 3 rights."

16. In his earlier propositions Lord Justice Dyson had indicated the high hurdle which an applicant must surmount if a breach of Article 3 is to be surmounted. That rightly is not challenged by Miss Bramwell in this appeal.
17. Having set out those factors, the judge expressed his conclusions:

"The defendant [now the appellant] was able to cope with a subsequent prison sentence in Poland and that coupled with the evidence as to the current prison conditions in Poland leads me to conclude both that the defendant has not established a genuine fear such as to create a risk of suicide and that any fear of relevant ill treatment would not be objectively well founded and that weighs against there being a real risk that extradition would breach Article 3. The sixth and final factor raised by Dyson LJ in J and considered by Sir Anthony May in Jansons is whether the receiving state has effective mechanisms to reduce the risk of suicide. I am satisfied on the evidence before me that the current prison arrangements in Poland are such that all proper steps will be taken to prevent this defendant's suicide and to treat him if he were to become physically or psychiatrically ill.

I do not find that there are substantial grounds for believing that there is a real risk that the defendant will be subjected to inhuman or degrading treatment or punishment so as to engage Article 3."

18. Thus though he had not spelt them out, the judge plainly placed some reliance upon the written evidence the court had received from the judicial authorities.
19. In seeking to uphold the conclusions of the district judge, Mr Grandison, for the respondent, has referred the court to that evidence. He also relies on much of the evidence of Dr Cree, for example the evidence (paragraph 10.5) that the appellant -

" ..... does not display evidence of an underlying major mental illness of either a psychotic or an affective nature."

At paragraph 10.7, other than one brief episode, the appellant -

" ..... has managed to cope with a range of stresses without resorting to self-harming behaviour."

20. Judge Omelan of the Regional Court in Elbag submitted evidence of a general kind although it related to a different case. He gave evidence in his letter of the psychiatric and psychological assistance which is available to those with mental problems who are detained in Polish prisons. Evidence also came in a short letter from Judge Szaro of the Regional Court in Rzeszow. In his evidence he stated:

"As for medical care, obviously it is stated that it is insufficient because it could always be better. But in situations of danger to the life or health, actions preventing such danger, including placing the inmate at a regular psychiatric hospital, are always taken. To sum up, the prison service in Poland provides inmates with medical treatment at a level adequate to their condition."

21. Miss Bramwell submits that what she describes as the vague assertions in the letters from the judicial authorities are insufficient to defeat inferences which must be drawn from the evidence of the criminologist and from the decision of the European Court of Human Rights which was cited. These general comments were insufficient to deal with the facts of the particular case or with the consequences of the decision of the European Court of Justice. Given the evidence of Dr Cree about the appellant's mental health and given the appellant's own evidence of his prior treatment in Polish prisons, there is a real risk that return to Poland would involve subjecting the appellant to a breach of Article 3 of the Convention.
22. Miss Bramwell had little, if anything specific, to add on the effect of Section 25 which is relevant to consideration of an Article 3 claim. Section 25 of the 2003 Act 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 I 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."

23. Reliance in relation to Article 8 was placed on the condition of the appellant's mother. The judge found that if returned to Poland - in this case as would the appellant - it would not involve breach of Article 8. That appears to me to be an unimpeachable finding. The circumstances are very far from establishing that return would involve a breach of Article 8.
24. In relation to Article 25, the judge noted (what bears upon the Article 3 claim) that the appellant is not mentally ill. The judge said that the appellant's action in putting caustic material on his chest was "a minor episode". Only if the appellant had been placed in a "harsh" prison regime without support would the risk of suicide or self-harm grow. He stated:

" ..... the prison authorities in Poland provide appropriate arrangements to obviate risks of bullying and self-harm."

It had not been established that there was a substantial risk that the appellant would seriously harm himself or try to commit suicide if extradited. It would not be oppressive within the meaning of Section 25 of the 2003 Act to order his extradition. Those findings bear very strongly upon the general issue as to whether there would be a breach of Article 3 by returning the appellant to Poland.

25. In my judgment the judge was entitled to reach the conclusion which she did on the basis of the evidence before her. Her conclusions about the appellant's evidence were ones she was entitled to reach. On the basis of Dr Cree's evidence, there was no psychiatric condition though there was a personality disorder. The judge needed to consider the specific case of the appellant.
26. In Musial, the European Court of Human Rights had to consider the specific case of Mr Musial. That is very different from the case of the appellant. His health and background, as I have cited from paragraph 6 of the decision of the court, is entirely different from the evidence about the appellant based on the appellant's own safeguards and Dr Cree's analysis of them. The judge was entitled, in my judgment, to find that there was no real risk of suicide or of serious self-harm on a return to a Polish prison. Dr Cree's entire case - and Miss Bramwell put it as her high point - is that on return to Poland it was only if conditions would be harsh that the risk would grow above a status of low.
27. On the evidence the district judge was entitled to find that there were procedures in the Polish prisons whereby, in appropriate circumstances, treatment would be provided.
28. As I have said, the case is readily distinguishable on the facts from that considered by the European Court in Musial. There, there was plainly not only epilepsy but the serious psychiatric condition of schizophrenia and other serious mental disorders. Happily the appellant is in a far better position. There has been no suicide attempt. He has coped with conditions in prisons in England and he has had no psychiatric treatment and needs no such treatment. There is every prospect that he will cope with conditions in Poland. While the availability of treatment to psychiatrically ill people may be limited in Poland, as it is in other jurisdictions in the Union, including this jurisdiction, there is no reason to doubt that conditions appropriate to the state of mind and health of this particular appellant can and will be provided.
29. I agree with the district judge that the Article 8 application is hopeless. I agree that, bearing in mind the specific provisions of Section 25 of the 2003 Act, the judge was entitled to reach the conclusions which she did. It would have eased the task of this court had the judge analysed - at any rate in summary form - the expert material which had been placed before her. However there can be no doubt that the judge did consider that material and, on further analysis with the help of counsel in this court, it does not impugn either the decision of the judge or her entitlement to reach it.
30. For those reasons I would dismiss this appeal.
31. MRS JUSTICE RAFFERTY: I agree.
32. LORD JUSTICE PILL: Are there any applications?
33. MISS BRAMWELL: Mr Okruch is publicly funded. I ask that costs be assessed in the usual way.
34. LORD JUSTICE PILL: You have the usual direction. No application from the respondent? No order for costs, save the usual legal aid assessment direction.
35. MR GRANDISON: I am grateful.