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
		28 June 2011

1. LORD JUSTICE PITCHFORD: On 24th January 2011 District Judge Purdy, sitting at Westminster, ordered the extradition of the appellant to Poland under a Part 1 European arrest warrant. The warrant certifies that the appellant's return is sought in order that he may be required to serve a term of imprisonment which totals three years and nine months. It was imposed by the Krakow District Court in Poland following the appellant's conviction of a variety of offences committed in 2004, 2005, and 2006, including the possession of drugs, personal assaults and threats to kill. The appellant now appeals against the order for extradition, relying upon the terms of section 25 of the Extradition Act 2003 which reads as follows:

"25(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 the condition in subsection (2) is no longer satisfied."

The nature of the appellant's case was and is that he is an active and serious suicide risk. That being the case, it is submitted by Miss Westcott that it would be oppressive to extradite him to Poland for the purpose to which I have referred.

2. Miss Westcott represented the appellant in the court below without fee. She continues to act for the appellant and we are grateful for the focused way in which she addressed us in the appeal. Mr Myles Grandison appears on this occasion for the respondent. Legal assistance was, however, only granted in January 2011, as I understand it, after the hearing before the district judge. Nevertheless, we have been provided with no contemporaneous medical records or reports from Poland. We do have the appellant's witness statement, a short note of his evidence before District Judge Purdy, and the report of Dr Tehmini Cadinouche, a specialist registrar in forensic psychiatry at the John Howard Centre in Hackney, East London, dated 24th may 2011 and prepared for the purposes of this appeal. I shall refer to the evidence.
3. The appellant was born on 25th November 1984 and is now aged 25. He made a statement dated 5th January 2011 in which he said that he had suffered mental health problems as a child at primary school. In 2004 while in prison he self-harmed. In 2005 he swallowed a razor blade in an attempted suicide. He was referred to a psychiatric hospital where he was prescribed medication and underwent twice weekly therapeutic or counselling sessions as an outpatient for a period of three or four months. The appellant said that he had ceased attending those sessions when he thought that he was deriving no further assistance from them. In 2007 the appellant said that he had cut a vein in his right upper arm. Following hospital treatment he met his current partner with whom he had a young son. The appellant told District Judge Purdy that his life had been saved in 2004 and 2005, while serving sentences in Poland, by the rapid response of prison medical staff. He said in his witness statement that he was 90 per cent certain that he would commit suicide if returned to Poland.
4. In her report of 24th May Dr Cadinouche records that two months before her interview the appellant's partner had ended their relationship but that his two year old son continued to visit him in prison. She noted that this event had not resulted in self-harm and the appellant did not claim to have been depressed as a result. Asked how he would react if sent back to Poland, the appellant replied: "I can't tell you. I don't know how I would be." He said, however, that he was terrified at the prospect of not being able to see his son. In Poland his parents had offered to support him throughout his trial but at the moment the appellant said that his son was most important to him.
5. As to the history Dr Cadinouche referred to the appellant's behavioural problems at school from which he had once been excluded. He had in the past consumed a variety of drugs, including Class A drugs. He was sent to a young offender institution in Poland at the age of 16. At about that age he had first started self-harming by banging his head against a wall. He told the doctor that he swallowed the razor blade in 2003, not 2005, when his day release pass was cancelled during the visit of Pope John Paul to Poland. The precise date does not perhaps matter. As to cutting the vein in his upper arm in 2007 the appellant said that, having arrived from Poland , he discovered that there was no home and no job for him. Having harmed himself he was found in the street. An ambulance was called. After preliminary treatment he jumped out of the ambulance and ran away. He said that the person who had found him had assisted him to find a job and a place to stay. He had worked while in the United Kingdom. He claimed to have been bullied by workmates and while under that pressure had self-harmed. He told Dr Cadinouche that he had fractured his fingers with a hammer. None of this history is supported by independent evidence or medical records, either from Poland or from within the United Kingdom. Dr Cadinouche described the appellant's presentation during her interview with him as essentially normal. He was not depressed and he did not claim to be depressed. He did not have any thoughts of self- harm but, as I have recorded, he did not know what he would do if he was returned to Poland. The appellant admitted to becoming very angry very quickly. He acted impulsively in stressful circumstances. He was, however, motivated to accept help.
6. In Dr Cadinouche's opinion the appellant's behaviour from an early age into adolescence might indicate "a dyssocial aspect" and "an impulsive aspect" of his personality. At page 8, paragraph 3 of her report, Dr Cadinouche said:

"3. In my view, Mr Laszczkowski's previous attempts to harm himself have been impulsive in nature, which reflects his maladaptive and dysfunctional coping mechanisms to stressful situations. In some of the previous incidents he acted in a self destructive manner as a result of anger outbursts. In none of the instances of self harming behaviour described by Mr Laszczkowski did it appear like he had planned the acts beforehand or that he had wanted to end his life as a result of a depressive disorder or psychotic illness."

As to the future risk of harm Dr Cadinouche said this at paragraph 5, page 9:

"5. Mr Laszczkowski does not have any thoughts or plans of harming himself or committing suicide at the moment. In my view he does not currently suffer from a depressive illness or a psychotic disorder. However the nature of his possible personality disorder described above, suggests an ongoing risk to himself through self destructive behaviour when faced with situations that he finds stressful to deal with. He has described at least two previous incidents where such behaviour could have been life threatening. By his account those acts were not preceded by any drugs or alcohol intake and neither were they influenced by a mental illness like depression or psychosis.

When faced with any challenging situation in the future, Mr Laszczkowski is likely to act in a similar manner, that is to harm himself. However he managed to refrain himself from doing so following the breakdown of his relationship around 2 months ago. Although he did have thoughts of harming himself, it appears like his cell mate managed to successfully reason with him to avoid such behaviour."

As to events should extradition follow, Dr. Cadinouche continued at paragraph 6:

"6. If his extradition is ordered, Mr Laszczkowski will find it very distressing to be separated from his son whom he describes as the most important person in his life currently. This level of distress will probably lead to self harming behaviour, although it is difficult to predict the severity of such behaviour at this point, whether it will be life threatening or not. Such behaviour will be impulsive in nature. Hence once the decision of extradition is made by the court, the risk of harming himself will be high although the risk of committing suicide is hard to determine. He has not said categorically to me that he will commit suicide if extradited but has not said that he will not do so either. He has coped in a self destructive manner in the past, in response to stressful situations and it is likely that he will do the same in the future, and this risk is likely to be chronic if he does not receive long term treatment."

7. Miss Westcott has submitted that the evidence discloses a risk of sufficient magnitude to engage section 25 of the 2003 Act. She relies in the main upon the decision of this court in Jansons v Latvia [2009] EWHC 1845(Admin). The President, Sir Anthony May, with whom Dobbs J agreed, allowed an appeal against an order for extradition when, the day after the order had been made in the magistrates' court, the appellant made an attempt on his own life by hanging which very nearly succeeded. In that case the appellant had been charged in Latvia with the theft of two mobile phones to a total value of £450. There was, the court noted, unchallenged medical evidence that if returned to Latvia the appellant's mental state would deteriorate and he would kill himself.
8. In approaching the section 25 test of oppression the President made reference to the six point test identified in the context of article 3 in a threatened return to Sri Lanka by the Court of Appeal in J v Secretary of State for the Home Department [2005] EWCA (Civ) 629. Dyson LJ, as he then was, said that in a "foreign" case the court should consider the following:

. The severity of treatment which it is said the applicant would suffer if removed.

. The causal link between the act or threatened act of removal and the inhuman treatment relied on as violating the applicant's article 3 rights.

. The article 3 threshold is particularly high in a case in which the risk is said to arise from his removal, though it is not contended that the receiving state will be responsible for inhuman treatment.

. An article 3 claim can in principle succeed in a suicide case: See Bensaid v United Kingdom (2001) 33 EHRR 10 at paragraph 37.

. In deciding whether there is a real risk of breach of article 3 in a suicide case an important question is whether there is an objectively well founded fear of ill treatment in the receiving state.

. Effective mechanisms in the receiving state reducing the risk of suicide will have an important bearing upon assessment of the article 3 question.

With the exception of point 3 similar considerations the President found applied where the risk of suicide is said to arise in the United Kingdom. Ultimately the court decided the issue in favour of the applicant on the statutory test of oppression and the proportionality judgment under article 8. He concluded at paragraphs 29 and 30:

"29. There is, in my judgment, a quite stark and single decision which the court has to make in this case and that can be expressed under section 25 as whether it would be oppressive to order his return. In my judgment, in a very difficult case, it would be oppressive. It would, in my judgment, be oppressive to order his return when there is, on any view on the evidence, such a substantial risk that he will commit suicide. It is not as if this is an appellant who is threatening suicide without any history of having tried to do so. Not only is he threatening that he will commit suicide and the doctor believes him but he has in fact, for the same reason, attempted to commit suicide in Wormwood Scrubs Prison and very nearly succeeded in doing so. In reaching the conclusion that it would be oppressive to return him, this is not a reflection on the ability of the Latvian prison authorities to protect him and provide the necessary treatment. But an assessment so far as the evidence enables one to do so, that the risk that he will succeed in committing suicide, whatever steps are taken, is on the evidence, sufficiently great to result in a finding of oppression. The same line of reasoning, in my judgment, could be applied to Article 8 and I do not think it is necessary to proceed to Article 3.

Under Article 8 it seems to me that the inevitable proportionality judgment that has to be made, taking account of the seriousness of the offences, the need to honour international treaties and the finding that the Latvian authorities will, generally speaking, take all reasonable steps to protect him, nevertheless has to be weighed against the risk which the doctor does not express as a risk but as a certainty that he will commit suicide, his mental state having deteriorated.

In my judgment, a judgment of proportionality for Article 8 purposes falls on the side of the finding that his Article 8 rights would be infringed."

9. Miss Westcott has drawn our attention to an issue which has arisen in previous cases as to the degree of risk on which the court will be prepared to act. Upon the question whether in those circumstances a return would be oppressive, I note that at paragraph 29 the President referred to "a substantial risk that he will commit suicide." in Marius Wrobel v Poland [2011] EWHC 374 (Admin), Bean J noted the decision of Mitting J in Rot v District Court of Lublin, Poland [2010] EWHC 1820 (Admin), in which the judge expressed his interpretation of the test as follows at paragraph 13:

"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 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 it would be oppressive to extradite him. Anything less will not do."

10. In Wrobel Bean J expressed his agreement with the analysis of Mitting J in Rot, save that he did not accept that the burden was upon the applicant or the appellant to establish a certainty that if extradited he would commit suicide. At paragraph 14 Bean J said this:

"... I disagree for three reasons: Firstly, I cannot see how any psychiatrist can state that if something disagreeable is done to a patient, for example, his extradition ordered against his wishes, he will certainly commit suicide, that is succeed in killing himself. All a psychiatrist can sensibly do is state, for example, that there is an extremely high risk that the patient will make an attempt to commit suicide, and that if, as in the case of Jansons, he has come close to success once before, there may be an extremely high risk that he will succeed the next time. However, predictions by psychiatrists cannot, as I see it, be in terms of certainty."

For myself I find a good deal of common sense in the approach of Bean J to the interpretation of psychiatric opinion in cases such as the present. He proceeded at paragraph 17 of his judgment to adopt the following test:

"17. If a very high risk was sufficient in a case governed by article 3, I cannot see that it would be right to interpret section 25 in a way that would be inconsistent, or indeed incompatible, with Article 3. I cannot see any reason why Parliament should have intended to impose a more stringent test under section 25 than under the Human Rights Act and Article 3 itself.

I therefore conclude that the test is, as stated in paragraph 29 of Jansons, whether the risk that the fugitive will succeed in committing suicide, whatever steps are taken, is on the evidence sufficiently great to result in a finding of oppression."

11. Miss Westcott is content for this court to proceed upon an assessment whether it would be oppressive to return the appellant by asking itself the question whether there is a substantial or very high risk that the appellant will upon extradition make an attempt on his own life. I therefore turn to the evidence in the present case.
12. It is not argued that the appellant will suffer inhuman treatment in Poland. The appeal is advanced solely upon the basis that there is a risk that the appellant will commit suicide if he is separated from the opportunity of seeing his son in the United Kingdom. However, from the evidence of Dr Cadinouche it is apparent that the risk is unknown and unquantifiable. The appellant does not suffer from a mental illness. There are aspects of his personality which are relevant. He is unpredictable but he is not currently depressed. He may self-harm when under stress but he did not do so when his partner, the mother of his child, ended their relationship. If he does self-harm it is not possible to predict the nature or degree of that self-harm. The appellant has himself given evidence of the speed with which he was provided with medical care when serving his last sentence in Poland and of the fact that he was provided with therapeutic sessions to assist him with his anxiety, self- harm and aggression.
13. On the question of proportionality the appellant has a two year old son to whom he is devoted. He wishes to take a role in his upbringing. He would not, however, be able to adopt that role as a member of the same household since, as the appellant accepts, the relationship with the mother is over. There has been no exploration in the evidence of the question, since the mother is a Polish national, it would be possible or feasible to arrange occasional visits to a Polish prison or to arrange other means of communication between father and son. For that reason such considerations must be left out of account. The sentence the appellant will be required to serve will be three years nine months less any remission to which he will be entitled in Poland or any credit for the time which he has spent in custody in the United Kingdom. Miss Westcott informs us that the period of 10 months spent in prison on remand in this country will count.
14. Upon his release the appellant will be able to resume contact with his son who will still be under the age of six years. I note the following passage from the report of Dr. Cadinouche at page 7, paragraph 29 of her report:

"29. With regard to the offences Mr Laszczkowski said that: 'It is something stupid that I did.' with regards to the consequences of the offences that he committed, Mr Laszczkowski said that he would prefer to spend a longer time in prison in England to be able to keep in touch with his son and spend as minimum as possible time in Poland."

15. Miss Westcott accepted that this appears to be a recognition by the appellant of the inevitability of a return to Poland, an inevitability which may be based upon advice which he has received, and it is one in respect of which he has already commenced efforts towards reconciliation. It seems to me that the appellant has already begun the process of reconciling himself to the need for self-control while he completes his sentence. In my judgment, the unpredictability of his personality to which I have referred does not make the case that it would be unjust or oppressive to extradite the appellant to Poland, nor in my judgment would the return of the appellant constitute a breach of his article 3 or article 8 human rights. For these reasons I would dismiss the appeal.
16. MR JUSTICE SUPPERSTONE: I agree.