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
		23 June 2010

1. MR. JUSTICE MITTING: Jan Rot is a 54 year old Polish citizen. He was prosecuted in the Provincial Court at Chelm in Poland for what can loosely be described as people trafficking. He was convicted. On 18th October 2004 he was sentenced to two years' imprisonment, of which one year, eight months and 28 days remain to be served. The judgment became "valid", in other words final, on 22nd April 2005. Despite the sentence he remained on bail to surrender when required to do so to serve his sentence. He was required to surrender on 17th November 2006 but did not do so. He had by then already fled to the United Kingdom on 5th March 2006, albeit in circumstances, as the District Judge found, in which he knew that he was likely to be required to serve the sentence.
2. Mr Rot was arrested on a European Arrest Warrant on 1st June 2009. On 30th March 2010 District Judge Evans ordered his extradition after a hearing. The reason why only one year, eight months and 28 days of the two years sentence remained to be served by Mr Rot appears to have been that he had spent time in preventative detention in connection with the offence beforehand. A letter from the Judicial Authority of 1st October 2009, which was taken into account by the District Judge, stated that he had been in preventative detention from 11th March 2003 until 11th July 2003 and again from 6th November 2003 until 11th May 2004, on each occasion in Chelm prison. Those appear to be the two periods of detention to which Mr Rot referred when interviewed by Dr Cree, a consultant forensic psychologist, for the purpose of the report which he prepared dated 27th July 2009 which was put in on Mr Rot's behalf before the District Judge. Mr Rot's case before the District Judge was that his extradition to Poland would be incompatible with his human rights, in particular with his rights under Articles 2, 3, and 8, under section 21(2) of the Extradition Act 2003, and that by reason of his mental condition it would be oppressive to extradite him under section 25(2).
3. There was uncontradicted evidence in Dr Cree's report that Mr Rot was diabetic and had sustained intermittent bouts of depression for which he had received appropriate medication since the 1990s. Mr Rot told him that he had attempted to commit suicide in Poland in two circumstances and on four occasions: first, twice when at liberty when under financial stress and, secondly, twice when in prison when subjected to abuse by Ukrainian prisoners (see paragraph 4.6 of Dr Cree's report). There was no evidence to contradict the first of these assertions but there was to contradict the second. The Judicial Authority's letter of 1st October 2009 stated that he had made no suicide attempts during either period of detention, and during the second time had not been the victim of violence at the hands of other inmates. The letter did state that on two occasions he had told the prison authorities that he had attempted suicide on four occasions whilst at liberty. Mr Rot also told the District Judge that soon after he was released in May 2004 he was taken to the woods by Ukrainian gangsters, beaten, kicked, clubbed and made to dig his own grave. The District Judge noted that despite that he did not then leave Poland but remained for well over a year.
4. There were two documented incidents in HMP Wandsworth which occurred before the hearing. On 5th June 2009 Mr Rot was found suspended from a piece of clothing. He was breathing, the report says, on arrival. Whether that is upon his arrival elsewhere or on arrival of staff at the prison is not clear. The reason was that he was apparently frustrated by his inability to contact his family. On 27th June 2009 he tied a piece of string from a bedsheet round his neck and attempted to strangle himself. Again, the reason was because he had been denied a telephone call. Additionally, he was angry about his medication. There has been one similar incident since. On 15th April 2010 he was found "after he had attempted to hang himself on the landing bars". He was assisted to his cell whereupon he placed another ligature around his neck. He was then taken to a holding cell. The notes from HMP Wandsworth also contain information that he had stopped taking medicine and had stopped eating. It was noted on 14 April 2010 that he was not eating "to protest his deportation to Poland". On 20th April 2010 and again on 29th April he refused medication. On 19th May he refused it. On 28th May it was noted that he was not complying with his insulin regime. He told Dr Cree that he would rather kill himself than subject himself to a repeat of…

"…the torture he experienced both in prison and in the community in 2003 and 2004".

5. In Dr Cree's opinion, though Mr Rot had responded well to anti-depressant therapy, his "risk of further events of attempted suicide would increase were he to be extradited to Poland". He did not believe that his account was fabricated. The District Judge did:

"21. Whilst on remand prior to his departure he claims to have been tortured. The prison guards were unable or unwilling to help him because he had implicated police officers in the people smuggling events and Polish prisons are not well run. He was beaten many times in the washroom by inmates and in prison the guards turned a blind eye to what was going on. Further, whenever he infringed some minor prison regulation or rule the guards would fine him and if he didn't pay he would be tortured by the guards. It was very stressful for him. He is convinced that if returned to a Polish prison the Ukrainian gangs would get him and he will be killed.

22. I found the defendant a very poor witness. Little of what he said had the ring of truth about it. I believe his evidence was a not very elaborate story invented in an attempt to defeat this extradition request. I note he is 53 years old and in the EAW when describing his conduct it says 'he led an organised group' (my emphasis). The tenor of the evidence presented on his behalf was to suggest that he is a weak man and vulnerable, not a leader. I believe he has exaggerated his concerns in relation to the Ukrainian gangs. Many of the events about which he speaks are now somewhat historical. I do not believe he was mistreated, either by prison guards or Ukrainian prisoners whilst he was held on remand. I am satisfied that there are no substantial grounds for believing that he was at a real risk of suffering Article 3 ill-treatment, either at the hands of the prison guards or of fellow prisoners whilst he is held in a Polish prison. As to what happened to him when he was in Poland but not in prison I refer to the account he gave Dr Cree at the last five lines of paragraph 4.7 and the first four lines of 4.8 of his report. If that account were true, I am surprised he remained in Poland for a further year after the incident. That suggests to me either the incident never happened or if something like it did happen he has exaggerated the incident or he was not concerned about it, as he now claims."

6. Therefore the District Judge had expressly held that Mr Rot's account of ill-treatment in prison in Poland was an invented story and that the incident in the woods either did not happen or he has exaggerated it. Therefore, the foundation for the fear, accepted by Dr Cree to give rise to the risk of suicide in Poland, has been found by the District Judge not to exist. There is no evidence that the expressed fear is based on psychosis or delusions as Dr Cree expressly stated in paragraph 10.12 of his report. There is no other possible explanation advanced for the fear. Either Mr Rot was telling the truth about the cause of his fear and so of the risk that he might attempt suicide, or he was not telling the truth. That is the very issue the District Judge decided. It was for him to decide.

There was evidence upon which he could properly decide it in the way that he did: in summary, first, the implausibility of the account, for example, staying in Poland for well over a year after the incident in the woods; second, the manner in which Mr Rot gave his evidence to the District Judge, described by him as very poor and, third, the inconsistencies between his account and the Judicial Authority's letter of 1st October 2009.

7. Although an appeal lies to this court on a question of fact it is settled law that this court will not interfere with a District Judge's assessment of fact unless it is clearly wrong, for all of the usual reasons. I am satisfied that District Judge Evans was not clearly wrong. Indeed, reviewing the material which he took into account, I find it difficult to conceive how he could have arrived at a different conclusion once he had formed the view, as he did, about the poor manner in which Mr Rot gave evidence before him. Having found that Mr Rot's account was an invented story, it follows that there were no objective circumstances which would put him at risk of suicide if he were to be extradited to Poland.
8. Mr Rot's case before the District Judge was that his human rights would be breached if extradited because (1) he would thereby be put at risk of committing suicide; (2) prison conditions in Poland would infringe his Article 3 rights there; and (3) it would be oppressive to extradite him by reason of his medical condition.

The bulk of the District Judge's judgment is devoted to the first and second issues. As to the first, he concluded that there was not something approaching certainty that Mr Rot would commit suicide if extradited to Poland. As to the second, he held that there were no grounds to believe that he would be subjected to ill-treatment sufficiently serious to infringe Article 3 in Poland, and as to the third, it would not be oppressive to extradite him.

9. In the context of Articles 3, 2 and 8, the risk that a person will commit suicide in an extradition case should be considered in two stages, before and after extradition. Before extradition the person concerned is the sole responsibility of the United Kingdom state. In circumstances in which there is no appeal to the High Court a person must be extradited to a category 1 country within 17 days or, if the judge and the Judicial Authority agree, at a later date. That is the combined effect of sections 35 and 36 of the 2003 Act. Extradition to Poland normally takes place by military aircraft roughly fortnightly. I am told that applications for an extension of the 17 day period are common. Unless wholly inadequate provision is made which might lead to the wholesale release of Polish extraditees by district judges, it is unlikely that a person in Mr Rot's position would be detained by the UK's authorities for more than about a month before being handed over to the Polish authorities. During the period of that month it is possible, even in the case of someone truly determined to commit suicide, as Mr Rot may well not be, to take effective action to prevent him from doing so. Those measures were summarised by Dr Cree in paragraph 10.6 of his report and include close observation, restricted access to material from which a ligature might be made and to ligature points. There are no doubt other means by which the risk of suicide can be reduced. The United Kingdom state's duty to a person who poses a suicide risk can in principle be met by such measures. It is not necessary to refuse to make an extradition order and to discharge the person to avoid breach of his rights under Articles 2, 3 and 8 in relation to the period before he is handed over to the authorities of the requesting state. After that time the management of risk is in the hands of the requesting state. The management of his psychiatric condition and the handling of any risk of ill-treatment posed to him from inmates within prison will be a matter for the Polish authorities. How they deal with such issues has, up to now, frequently led to the calling of evidence before district judges about the adequacy or inadequacy of that provision in the case of Poland and other category 1 Convention states. Such evidence was led in this case, including two reports from Dr Moczydlowski, and the second part of the letter from the Judicial Authority of 1st October 2009. The District Judge concluded that Dr Moczydlowski's reports led him to the view that the Polish prison system would be able to provide sufficient protection to Mr Rot from himself and from his fellow prisoners. That was a conclusion to which he was plainly entitled to come and is not clearly wrong, but in my view he was not required to address that question or to answer it at all.
10. In a removal case, KRS v United Kingdom Application No. 32733/08, 2nd December 2008, the Fourth Section of the Strasbourg Court had to deal with a challenge to the decision of the United Kingdom to send back an asylum seeker to Greece under the Dublin 2 Convention. The asylum seeker made two complaints about Greece, first, that it routinely refouled asylum seekers to unsafe countries and thereby infringed their rights under Article 3; secondly, that the treatment of asylum seekers in Greece while in Greece was such as to put Greece in breach of its obligations to asylum seekers under Article 3. The court expressed itself in unequivocal terms. It is necessary to set out two paragraphs of the judgment to explain the second part, which is that which is relevant for present purposes:

"The court recalls in this connection that Greece as a Contracting State, has undertaken to abide by its Convention obligations and to secure to everyone within their jurisdiction the rights and freedoms defined therein, including those guaranteed by Article 3. In concrete terms, Greece is required to make the right to any returnee to lodge an application with this court under Article 34 of the Convention (and request interim measures under Rule 39 of the Rules of the Court) both practical and effective. In the absence of any proof to the contrary, it must be presumed that Greece will comply with that obligation in respect of returnees including the applicant. On that account, the applicant's complaints under Articles 3 and 13 of the Convention arising out of his possible expulsion to Iran should be the subject of a Rule 39 application lodged with the court against Greece following his return there, and not against the United Kingdom.

Finally, in the court's view, the objective information before it on conditions of detention in Greece is of some concern, not least given Greece's obligations under Council Directive 2003/9/EC and Article 3 of the Convention. However, for substantially the same reasons, the court finds that were any claim under the Convention to arise from those conditions, it should also be pursued first with the Greek domestic authorities and thereafter in an application to this court."

11. Considerations which apply in a removal case apply with equal or greater force in an extradition case. There is a compelling public interest for category 1 Convention states in seeing their own criminal law upheld in relation to those who may have infringed it. The European Arrest Warrant system is intended to provide an effective means of seeing that that important public interest is upheld without undue delay. Category 1 states can be taken to have accepted between themselves that conditions of detention, and the adequacy of fairness of criminal justice systems in such states, will not be required to be examined by other States when considering extradition applications by them. For those reasons and in my opinion for the purposes of Articles 2, 3 and, if relevant, 8, the treatment of a person extradited to a category 1 State which is a signatory of the Convention is a matter between the individual extradited and that State and not between the individual and the United Kingdom.
12. I would hold that, save in circumstances in which the constitutional order of a Convention State was overthrown, by for example military coup or violent revolution, a District Judge considering the risk to an extradited person in the hands of such a State is not required to undertake an examination of conditions in its prison estate or of the management of psychiatric illness in that State. I find it difficult to conceive that evidence about such matters would be relevant and so admissible in extradition proceedings for the purpose of determining whether an individual should be discharged under section 21.
13. The risk of suicide has been considered by the courts of England and Wales under section 25. In one case only has that risk resulted in a decision that it would be oppressive to extradite the individual, Jansons v Latvia [2009] EWHC 1845 (Admin). In that case the appellant had been detained upon a European Arrest Warrant. The senior District Judge had ordered his extradition on 4th September 2008 for two offences of theft. On 5th September 2008 the appellant made a serious attempt to kill himself and ended up in the intensive care unit of Charing Cross Hospital. He was examined by a consultant psychiatrist who concluded in the bluntest terms that if he was sent back to Latvia "his mental state will deteriorate and he will kill himself". Until and unless the reasoning in Jansons is disproved, the risk of suicide must be accepted to be a relevant risk for the purpose of section 25. The question must therefore be addressed and answered in such a case: would the mental condition of the person to be extradited make it oppressive to extradite him? Logically, the answer to that question in a suicide risk case must be no unless the mental condition of the person is such as to remove his capacity to resist the impulse to commit suicide, otherwise it will not be his mental condition but his own voluntary act which puts him at risk of dying, and therefore may make it oppressive to extradite him. Untidy though it may be, and while Jansons remains good authority, the question must be approached in a somewhat less logical manner. When, as in Jansons, there is uncontradicted evidence that an individual who has made a serious attempt to kill himself will kill himself if extradited, it may be right to hold that it would be oppressive to extradite him. Anything less will not do. The Divisional Court, in a case presided over by the President, Prosser v Secretary of State for the Home Department [2010] EWHC 855, made observations consistent with those remarks:

"Since in the context a successful actual suicide attempt would necessarily constitute an extreme violation of Article 3 if it were caused by factors for which the Secretary of State should be regarded as responsible, the court is logically concerned with evaluating the risk that a threatened suicide would eventuate and succeed. A very high risk would doubtless be capable of achieving the Article 3 threshold. Our evaluation is that Mrs Prosser's risk falls significantly short of achieving that threshold."

14. The risk to Mrs Prosser was described in medical reports as just that, a high risk of suicide were she to be extradited, but no more. It seems to me that if, as in this case, the history and the medical evidence suggests at most that there is a risk of an attempted suicide by a person who has attempted something in the past but not succeeded, and has got nowhere near killing himself, then whatever the precise test may be it is not satisfied.
15. Accordingly, if there is a principle less stark than that which I have proposed founded upon the reasoning in Jansons, the District Judge was unquestionably right to conclude that it would not be oppressive to extradite Mr Rot to Poland by reason of his mental condition.

For those reasons this appeal is rejected.

16. MISS BRAMWELL: Mr Rot is legally funded.
17. MR. JUSTICE MITTING: Public funding assessment of his costs.