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
		9 February 2011

MR JUSTICE BEAN:

The appellant, Mr Wrobel, was convicted in Poland in 2004 of offences of burglary and attempted robbery. He was sentenced to a total of two-and-a-half years' imprisonment, of which he has two years, two months yet to serve.

On 4 September 2008, the Polish judicial authorities issued a European arrest warrant and sought his extradition. He appeared at the City of Westminster Magistrates' Court before District Judge Nicholas Evans where the sole issue, as it has been before me, was whether it would be unjust or oppressive, within the meaning of section 25 of the Extradition Act 2003, to return him because of the risk of suicide if he was returned.

The District Judge had before him, as I have before me, reports by Professor Steven Hirsch, an Emeritus Professor of Psychiatry at Imperial College, London. The judge heard oral evidence from the appellant and his partner, but not from the Professor, who was not required to attend for cross-examination. The District Judge found that it would not be oppressive to extradite Mr Wrobel to Poland, and accordingly ordered his extradition. This is Mr Wrobel's appeal from that decision.

Professor Hirsch's report of 29 September included the following:

"31. I observed that he has an uncountable number of cuts on his arms and several scars on his neck. His partner told me he had used a razor to go straight across his abdomen on one occasion. He said the last time he made a cut was when he was in Pentoville Prison where he spent three months and was not guilty. At other times it was when he got angry and he had to cut himself to let himself go. He said it brings a good mood so he will not kill himself. Recently he has begun to want to kill himself."

Professor Hirsch observed that throughout the interview the patient's body was rocking back and fourth, and he had shaking or tremor in his hands or upper limbs.

At paragraphs 39 and 40 the Professor wrote:

"39. In my view as a person with his background and diagnosis who has found a better existence and a good relationship, he is paradoxically more vulnerable to desperate feelings and suicidal attempts when his world comes crashing down than before. This would be the case if he was extradited. I regard his risk of impulsive but serious self-harm, including suicide as very high during this period if the extradition goes through.

40. I have been asked for my view of the risk of him committing suicide or serious self-harm if he is returned to Poland and how that risk might be managed. I have stated the risk which I regard as substantially high. I do not believe this risk could be managed by medication. If he is returned to prison to serve the two year sentence, and should his partner leave him during that period, which has to be a risk, then the risk would be extremely high, though I do not have any evidence to suggest that she will leave him. It is however, an undoubted risk as time passes. Mr Wrobel is an abused and damaged person, damaged by his step-mother, his poor coping strategies, his chronic repeated imprisonment for non major offences, his disability with a history of epilepsy, chronic alcohol abuse, and his borderline personality. Despite this since coming to England he has been on a positive trajectory of rehabilitation as a result of his deep attachment to his partner, and possibly her therapeutic skill as she is a addiction therapist but I have not gone into this with her. She has brought him into contact with new trustworthy social contacts, and given him a positive view to life being worth living. The set back of finding himself separated and in prison again for an alcohol related offence will, in my view, if followed by extradition and 2 years imprisonment, likely lead to severe depression and return to his self-damaging behaviour, and I think suicidal acts a very high risk. Should she, in the course of time, find a new partner while he is away, I think the risk will be extremely high."

At this stage Professor Hirsch had not seen the patient's medical notes. By 26 October he had done so and wrote an addendum report in which he stated that his opinion expressed in the previous report, that there was a very high risk of suicide, had not been altered. He wrote:

"I repeat my conclusion that if he is extradited his risk of impulsive but serious self-harm, including suicide, will be very high by virtue of the fact that his mental health, with a borderline personality disorder and unpredictable serious swings in his mood state, and a high likelihood of depression, be it short term or persistent, will render him unable to resist the impulse to commit suicide."

This evidence, as I have said, was not subjected to cross-examination and there was no other expert's report before the District Judge. He did, however, have available to him, as did Professor Hirsch, medical notes on the appellant going back some years.

I have been referred to a number of authorities. The first one to which I will refer is a decision of the Appeal Court of the High Court of Justiciary in Scotland: Howes v Her Majesty's Advocate [2009] SCL 341. This was a case, as Miss Faure Walker for the Polish authorities points out in citing it, that involved extradition to the United States and therefore the proceedings were under Part 2 of the 2003 Act, but I doubt whether anything turns on that since the "unjust or oppressive" provision appears both in Part 1, section 25 and Part 2, section 91. Lord Reed, giving the opinion of the court, said:

"A judgment as to whether it would be unjust or oppressive to extradite a requested person is not ... a technical issue of law, but requires the court to form an overall judgment upon the facts of the particular case: a judgment which, as Moses LJ observed in United States v Tollman [2008] 3 All ER 150 at paragraph 50, is likely to reflect shades of grey rather than black or white. Previous cases are therefore illustrative of the court's approach rather than definitive of the circumstances in which an order for discharge may or may not be appropriate. That said, it is apparent from such cases as Boudhiba v National Court of Justice, Madrid [2007] 1 WLR 124, United States v Tollman, R (Tajik) v United States [2008] EWHC 666 (Admin), Spanovic v Croatia [2009] EWHC 723 (Admin) and Jansons v Latvia [2009] EWHC 1845 (Admin)that in practice a high threshold has to be reached in order to satisfy the court that a requested person's physical or mental condition is such that it would be unjust or oppressive to extradite him. That reflects a number of considerations. One, on which Hale LJ placed emphasis in R (Warren) v Secretary of State for the Home Department [2003] EWHC 1177 (Admin) at paragraph 40, is the public interest in giving effect to treaty obligations in extradition cases. It follows, as Sir Anthony May observed in Jansons v Latvia at paragraph 7, that "this court will not lightly conclude that a threat of suicide is sufficiently grave and likely to be carried out successfully, so that what would otherwise be the due process of extradition under international arrangements should not take place." Another important consideration is the fact that the countries with which such treaties are concluded are likely to have adequate facilities available for treating the health problems of persons whose extradition is requested."

As a decision of the High Court of Justiciary, even in a composition of three judges, this is not formally binding upon an English court, but both Miss Faure Walker and

Mr Hawkes for the appellant accepted it as a correct statement of the law, and I agree.

Jansons v Latvia [2009] EWHC 1845 (Admin), referred to in Howes, is an important case because it is a decision of a Divisional Court (consisting of the President, Sir Anthony May, and Dobbs J), rather than a decision of a single judge. Jansons was wanted in Latvia for two offences of theft or burglary. As in the present case, in the words of the President:

"We are not concerned with trivial offences. We are not on the other hand concerned with the kind of offences that concern injury or serious attacks on individuals."

His extradition was ordered on 4 September 2008 by Senior District Judge Workman. It was not suggested on appeal that there was anything wrong with that decision, when it was made. What was altogether exceptional about the case is that the very next day Mr Jansons attempted to commit suicide in Wormwood Scrubs Prison. He not only attempted, but he very nearly succeeded. The President said at paragraph 2:

"... it is said on his behalf, that his suicide attempt was a reaction by a mentally depressed and unstable person to his then imminent extradition to Latvia and it is said on his behalf that although he largely recovered from the immediate physical effects of his very serious suicide attempt and his condition in prison has been managed by doctors and others so as to avoid a further suicide attempt so far, uncontested psychiatric evidence says that if he is to be extradited to Latvia, he will commit suicide. The report says that in terms or, at least, one supposes, make every effort to do so."

At paragraph 24 the President said:

"The question under section 25 is not whether it would be unjust to return the appellant to Latvia, but whether it would be oppressive to do so. There is a clear cut case that he would, upon the evidence that if he were returned, his mental state would deteriorate and he would commit suicide."

Continuing at paragraph 26 the President said:

"The court must accept, as indeed I do, that there are appropriate arrangements in place in the prison system in Latvia and that, as he [counsel for Latvia] would have it, the appellant cannot establish that the Latvian authorities will not properly cope with his mental condition and properly cope with the risk of suicide. Set against that is the uncontradicted evidence not only that his mental condition would be triggered to deteriorate if he is returned to Latvia, but also, in unqualified terms, that he will commit suicide if he is returned to Latvia."

Finally at paragraph 29 the President said:

"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 to commit 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."

This case, as Foskett J observed in Sbar v The Court of Bologna [2010] EWHC 1184 (Admin), may be said to establish "something of a benchmark by which to judge other cases", although I respectfully agree with the High Court of Justiciary in Howes that the court nevertheless has to form an overall judgment upon the facts of each particular case.

There is, however, a dispute as to what the proper ratio of Jansons is. The best case in which to seek assistance on that issue, in my judgment, is R (on the application of Prosser) v the Secretary of State for the Home Department [2010] EWHC 84 (Admin), because that was another judgment of a Divisional Court with Sir Anthony May presiding. Mrs Prosser's offences were committed before the passing of the Extradition Act 2003 and therefore sections 25 or 91 of that Act were not in issue; instead, the case was argued under Article 3 of the Human Rights Convention. There were other material differences from the present case and the case of Jansons on the facts. Mrs Prosser's was not as strong a case of risk of suicide as either the present case or the case of Jansons, and there were several medical reports before the court which, to some extent, were in conflict with one another. However, what is useful is to see what the Divisional Court said at paragraphs 20 and 22, in particular what they said about Jansons:

"20. In principle a claim based upon a risk of suicide is capable of meeting the Article 3 threshold. But Mr Southey accepts that there is only one reported case based on the risk of suicide where extradition has been successfully resisted. That case was Jansons v Latvia [2009] EWHC 1845 (Admin), where not only had the claimant recently actually attempted to commit suicide on account of his threatened extradition while he was in prison and very nearly succeeded; but also uncontradicted expert opinion was that he would commit suicide if he were extradited. It was not expressed merely as a risk. Jansons was in fact decided under Article 8.

...

22. There is a risk of suicide but, as in, for instance, R (Tozlukaya) v Secretary of State for Home Department [2006] INLR 354, the risk in our judgment does not bring the case near the high Article 3 threshold, even if the risk is regarded as severe and likely to continue."

After referring to the various opinions of two of the doctors in the case the President went on:

"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." [emphasis added]

Miss Faure Walker relied on the judgment of Mitting J in Rot v District Court of Lublin, Poland [2010] EWHC 1820 (Admin). (She correctly points out that in the Westlaw printout the case is wrongly entitled: "The Queen on the application of Jan Rot v District Court of Lublin, Poland". It was an extradition appeal and not a judicial review.) At paragraph 13 the judge referred to Jansons and the appellant's attempt in that case to commit suicide the day after the Senior District Judge's decision, and continued:

"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... made observations consistent with those remarks..."

[emphasis added]

Mitting J then quoted from paragraph 22 of Prosser, which includes the sentence:

"A very high risk would doubtless be capable of achieving the Article 3 threshold."

I agree with much of what Mitting J said in Rot, but not with the sentence I have italicised. I do not accept that the correct test under section 25 is that there must be evidence that the fugitive will kill himself if extradited, nor that this is the ratio of Jansons. 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.

Secondly, I was struck by the President's words in paragraph 2 of Jansons when referring to the psychiatric report saying that Mr Jansons, if extradited to Latvia, "will commit suicide". The President commented:

"The report says that in terms or, at least, one supposes, make every effort to do so."

That bears out, I think, the view I have just expressed about certainty of success.

I also note that in paragraph 29 of Jansons the President, with whom Dobbs J agreed, used the phrase: "such a substantial risk that he will commit suicide", and in the same paragraph said:

"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."

Thirdly, in Prosser the President observed in paragraph 22 that:

"A very high risk would doubtless be capable of achieving the Article 3 threshold."

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.

In deciding what risk is sufficiently great to result in such a finding it must be borne in mind, firstly, that there is a public interest in giving effect to treaty obligations (see Howes and also Norris [2010] 2 AC 487); secondly, that it should be assumed, at any rate in a European arrest warrant case under Part 1 (such as the present one and Jansons), that the requesting state has the facilities to cope with and treat mental illness. Whether or not the treatment is, in all respects, as good as the appellant might receive in London is not to the point. Thirdly, a high threshold has to be surmounted in order to show oppression. Finally, in a case based on the risk of suicide there must, in my view, be independent and convincing evidence of a very high risk of suicide if the fugitive is returned.

Taking all this into account, I consider that the unchallenged evidence of Professor Hirsch does provide independent and convincing evidence of a very high risk of suicide in this case if the appellant is returned to Poland. I therefore find that District Judge Evans ought to have decided the section 25 issue differently, and ought to have found, as I find, that it would be oppressive to return the appellant to Poland to serve the term of imprisonment for which his extradition is sought. Accordingly the appeal is allowed and the order for extradition quashed.

MR HAWKES: My Lord, the appellant is legally aided. Might I ask for a legal aid assessment?

MR JUSTICE BEAN: Certainly.

MR HAWKES: I am very grateful.

MR JUSTICE BEAN: Thank you both very much for your high quality assistance.