England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/04/2012

Mr Justice Wilkie:

Introduction

1. These two appeals are listed to be heard together as their factual matrices substantially overlap, as do the arguments deployed by the appellants and the respondent. The requesting judicial authority in each case is the Municipal Court in Prague, in the Czech Republic. Each appellant is sought for extradition pursuant to a European arrest warrant (EAW) dated 28^th July 2010. certified by SOCA on 15^th August 2010.
2. In each case the warrant is sought for the purposes of conducting a criminal prosecution for one offence of illegal production and possession of narcotic and psychotropic drugs. They were arrested in Prague on 16^th March 2008 at the airport en route to the UK. The drug was said to be found in the luggage of the appellant Halliday. The maximum length of custodial sentence which may be imposed for the offence accused is 15 years.
3. They were each, initially, in different prisons but were, on different days, released, it would appear on medical grounds, and returned to the UK.
4. The extradition of each of them was ordered on 30^th September 2011 by DJ John Zani. In the case of each appellant it was argued that section 25 of the Extradition Act 2003 barred their extradition on the ground that it would be unjust or oppressive to extradite him by reason of his physical or mental condition. In the case of the appellant Timothy Wilby, in addition, he argues that extradition is barred by section 21 of the 2003 Act on the grounds that the UK would be in breach of its obligations under the European Convention on Human Rights (ECHR), in particular Articles 3 and 8, were he to be extradited. Article 3 provides that no one shall be subjected to torture, or inhuman or degrading treatment or punishment. Article 8 prohibits disproportionate interference with family or private rights. In addition, at the hearing of the appeal, Mr Wilby sought to rely on section 14 of the 2003 Act which bars extradition if it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence, or become unlawfully at large.

Timothy Wilby

5. Timothy Wilby was diagnosed HIV positive in 2003. He believes he contracted the disease in about 1999. Prior to his imprisonment in the Czech Republic he had relied on his own natural immunity to combat the illness together with close monitoring by his physicians.
6. A decrease in the CD 4 count to less than 200mm per cubic millimetre of blood is the diagnostic criterion for Aids and a clinical indicator of when to start anti retroviral therapy (ART).
7. By March 2008 he was suffering severe, painful and aggressive HIV related arthritis. His CD 4 count was close to 200. His doctor, Dr Gant, recommended commencing HAART (highly active ART) but postponed commencement of that treatment until after his return from the Czech Republic (thwarted by his arrest).
8. Mr Wilby contends that, by reason of what he regards as his wilfully negligent treatment in respect of his illness which he received in prison until his release on 30^th December 2008, as well as a serious subsequent ailment, to which I will return, the DJMC ought to have concluded that bars to his extradition arose under section 25 and section 21 (in relation to Articles 3 and 8 of the ECHR).
9. Mr Wilby and the judicial authority were in serious dispute about some of the facts around his detention and his treatment while still in detention, as well as in their respective perceptions of the reasons for what had happened. The DJMC, in his judgment, recorded the sequence of events, and identified certain of these conflicts, but made no specific findings, either as to the conflicts of fact, or as to the differences in interpretations of those facts. A preliminary issue I have had to determine is the basis upon which I should address those conflicts and disputes, which the parties were maintaining, as evidenced by their respective skeleton arguments. A number of factual disputes were identified, which were factual disputes rather than interpretations of events. In respect of each of them the position of the judicial authority was based on what they had said in response to various complaints and allegations made by the appellant. However, they did not furnish any primary documentation which would authoritatively support their version of events. I, therefore, ruled that, in so far as there were disputes as to what happened, as opposed to the interpretation of what happened, I would approach this appeal on the footing that the DJMC must have approached his task on the assumption that he should act on the version of facts which was most favourable to the appellant, and that I would similarly do so.
10. The main events can be summarised as follows. Mr Wilby was medically examined as soon as he was detained. He informed the judicial authority of his HIV status. He complains that night sweats nightly left his bed linen saturated and that he was not permitted to change the sheets more than more than once or twice a fortnight or shower more than twice a week. He was confined in his cell 23 hours a day and was fed through a cat flap food which he regarded as inedible. He was not provided with an interpreter, nor did the staff speak English. After his initial medical examination he was not taken to the AIDS clinic until August, some 5 months later. In the meantime Dr Gant provided a report in June that his CD 4 count called for access to medical care, failing which he would soon develop an infection which may kill him. A translation of this letter was not made available to the medical authorities until 25^th July 2008, following which he was sent for tests, starting on the 20^th August, leading to a report dated 17^th September which recommended prophylactics, ART, analgesics and hospitalization. The CD 4 count at that time was 127.
11. There came a point, after he had been to the HIV clinic, that his HIV status became common knowledge within the prison system and he was placed in solitary confinement with a black cross on his door about which a complaint was made by him and by the British Consulate.
12. Despite the recommendations of the medical report by the Czech doctors on 17^th September 2008, at no time was Mr Wilby prescribed ART. The detailed versions of how this came about differ but there is no dispute that Mr Wilby initially received some medication. It became apparent that he was having to pay for it out of his limited financial resources and, as a result, could not afford to buy food. As a consequence, he began refusing any medication. The position of the judicial authority is that this was evidence of his non-co-operation and, as a result, they did not prescribe ART.
13. The position concerning payment by a prisoner for medication was complex and required the prisoner to have health insurance, through which the cost of medication would be reimbursed. Mr Wilby, as a non Czech citizen, did not have the necessary health insurance and it took some time and the involvement of the British Consulate for the position to be rectified, which it was towards the end of November. Mr Wilby became the beneficiary of an EHIC (EU wide health insurance certificate) which would run for 3 months from the end of November, but which would secure payment for medication. There is a dispute as to whether, in addition, he signed forms in respect of a Czech based insurance company. That seems to be a side issue as, on any view, the ability to pay for medication through the EHIC came on stream towards the end of November.
14. In addition, Mr Wilby declined to be hospitalized within the prison system. There is a dispute whether he refused of his own volition, or was advised by the medical staff that it would be better for him not to go into hospital lest he be exposed to infection. Furthermore, it is a fact that, even after the EHIC came on stream, ART was not prescribed. The position of the Czech authorities is that he was still refusing to accept medication.
15. On 30^th December 2008 he was released from prison and had to make his own way out of the country and thence to the UK. No notice was given of his release, whether to Mr Wilby or to the British Consulate, but a relative wired the funds necessary to purchase an overnight bus ticket to enable him to return to the UK.
16. From the judicial authority's perspective, Mr Wilby's release arose from the continuing difficulty in obtaining his cooperation in accepting medical treatment. The recommendation of the regional medical commission to the prosecutor and to the court was that the investigation of his offence be accelerated and that he be released from custody and deported to his country of origin. That gave rise to the decision to release him.
17. Mr Wilby contends that the accumulation of his experiences whilst in custody could properly be described as wilful negligence and constituted a breach of Article 3 of ECHR. It is said by him that his treatment is cogent evidence that it would be unjust and oppressive, in light of his physical or mental condition, to extradite him to the same prison system where he had suffered such neglectful treatment over a period of months (section 25) and that extradition would constitute a breach of Articles 3 and/or 8 of the ECHR (Section 21).
18. The judicial authority points out that Mr Wilby was medically examined immediately upon his detention and that they were well aware of his HIV status which, at that time, was not being medicated in the UK. A review after 3-6 months is not, they say, inappropriate. Upon receipt and translation of Dr Gant's letter of June 2008. He was examined reasonably promptly, starting in August 2008 and culminating in the report of the 17^th September 2008 which recommended that he receive, amongst other things, ART treatment. The difficulty in making arrangements for payment of that treatment led to Mr Wilby refusing medication. By the end of November, the insurance position had been resolved by the EHIC. That was only of 3 month duration. In the light of Mr Wilby's continuing refusal to accept medication and the limited duration of the EHIC a decision was made by the court, on recommendation by the regional medical commission, that he be released from custody to return to the UK to resume medical treatment. It is said by the judicial authority that, viewed from their perspective, his treatment falls far short of a breach of Article 3 and/or Article 8 and/or such as to give rise to the bar on extradition provided for by Section 25.
19. Happily, Mr Wilby returned to the UK and received medication following which his CD 4 count has substantially improved and, as long as he is regularly taking the medication, remains at a satisfactory level, though he remains immune or suppressed and at risk of complications.
20. Unhappily, however, on 13^th April 2010, Mr Wilby suffered a stab wound to the liver during a robbery at his home address, since when he has developed life threatening aneurisms in his liver. The most recent evidence in relation to that is a report of 11^th March 2011 in which Professor Davidson says that, since June 2010 there has been no evidence of any residual aneurism, suggesting that the damaged vessel has now been adequately occluded. In these circumstances the risk of further aneurisms formation will be low, possibly of the order of 5-10%. However, further aneurisms could be life threatening and the risk would be compounded if there was a misdiagnosis or a delay in diagnosis and treatment.
21. Mr Wilby argues that this additional medical factor supplements the argument that it would be unjust and oppressive for him to be extradited to a prison system where, he fears, even a relatively small chance of a further aneurism would not be properly monitored and/or it would be likely to be misdiagnosed or there would be unacceptable delay in treatment.
22. a. In addition, he is about to have a minor hernia operation which means that he will be unfit to travel until mid May.

Julian Halliday

23. Mr Halliday suffers from a series of ailments.

i) He was first diagnosed HIV positive in 2001. Currently it is well controlled on ART drug therapy.

ii) He was further diagnosed with a "Burkitt" like lymphoma in 2003 requiring treatment with chemotherapy and radiotherapy. Currently it is in remission with no evidence of any recurrence.

iii) He suffers dilated cardiomyopathy with a left ventricular systolic dysfunction. He is currently under care of a consultant cardiologist and managed medically on four drug therapy. There is a guarded prognosis with a 5 year survival of less than 25%. It requires ongoing 6 monthly follow ups including serial blood tests, ECGs and cardiac ECHOs.

iv) He was diagnosed Hepatitis C positive in 2001. He is currently under the care of the Institute for Liver Studies at Kings Hospital. He has normal liver function at present. He is due to start a 6 month course of treatment for Hepatitis C, which could continue for 12 months, involving daily medication and weekly injections.

24. In addition to these physical ailments he suffers from a moderate/severe depressive illness medicated by fluoxetine and has a generalised anxiety disorder. He suffers frequent panic attack symptoms.
25. In an addendum to his medical report dated 18^th February 2011 Dr Bonar describes his medical treatment for his HIV in the Czech Republic as "appropriate but suboptimal given the time scale it took for him to access the medication".
26. On 9^th April 2008, the Regional Medical Commission wrote to the Metropolitan Prosecutor's office in Prague about Mr Halliday. His admission inspection had revealed he was HIV positive since 2001 and had successful treatment for non Hodgkin's Lymphoma. His examination had resulted in ART being started immediately. That therapy, together with cardiology medicines, cost £26000 Kcs per month which had to be paid by the prison itself. It said:

"HIV in stages of Aids is a serious threat to the patient because of numerous infections and carcinogenic complications. Therefore long term imprisonment in a prison is not acceptable. The continuous providing of specific therapy and continual more and more frequent escorts to the specialized health care departments will rise enormous economical burden. The present medical committee together with a medical practitioner of AIDS Centre therefore recommend the deportation of the patient to the UK as soon as possible".

27. On 17^th April 2008 the Regional Medical commission wrote to the prosecutor's office amongst other things to the following effect:

"That the conclusion of the examination showed serious mainly infectious poorly morbidity of the defendant which requires very expensive wide variety of therapies and prognosis mainly due to the ongoing Aids is very uncertain… leaving aside the economic aspects of the therapy and the necessary frequency of escort which will definitely rise, it is evident that the therapy is in non criminal health… in terms of the custody time bomb not just for himself but also a threat for others… therefore the medical fitness of the accused for custody is on a boundary, in the short term it will probably be zero. Local medical committee advised the accused after the end of the urgently necessary hospitalization… released from custody while insuring the expeditious transfer to the country for treatment…".

As a result of this correspondence he was released from custody and returned to the UK shortly after the 18^th April.

The judicial authority's stated arrangements for health care of prisoners.

28. These are the same for both Mr Wilby and Mr Halliday and can be summarized as follows:

a) not all health care required by a foreign national whilst in custody is covered by public health insurance. Such care as is not covered by insurance has to be paid for by the prisoner. However any care that is required to prevent serious damage to a prisoner's health, will be provided regardless of the prisoner's ability to pay. And any costs so incurred will be borne by the state.

b) there are no specialised facilities to treat prisoners with HIV within the prison system. Where necessary such care will be provided outside the prison system.

c) the medications currently prescribed to the appellant are available in the Czech Republic.

d) Where the health of a prisoner is such that detention in a prison hospital is unsuitable, the relevant medical commission may prepare an opinion for the cancellation, suspension, or abandonment of the remainder of the sentence. It is then a matter for the court of competent jurisdiction to determine whether to follow such a recommendation.

e) Health care for conditions which do not imminently endanger life or will not cause permanent pathological changes must be paid for by the foreigner from his or her own funds.

f) Prerequisite for the provision of health care based on the EHIC is registration for a health insurance company in the Czech Republic.

g) Section 72 of the Czech rules of criminal procedure provides that there must be continuous examination whether the reasons for detention still exist. The accused must immediately be released if it is evident that, given the circumstances of accused or the case, the prosecution will not result in the imposition of a sentence of imprisonment (subject to certain exceptions which do not apply here). However, the remand of the accused into custody can be decided only by the court, though based on the suggestion of the public prosecutor.

The approach of the courts to sections 25 and 21 (Articles 3 and 8).

Section 25.

29. The threshold for a successful reliance upon Section 25 is very high ( Reece- Edwards v District Court Suwalki Poland [2009] EWHC 3589 Admin Dyson LJ at para 9).
30. The threshold, whilst not the same as for a breach of Article 3, certainly approaches it (Mikolajczkyk v Wroclaw District Court [2010] EWHC 3503 Admin at para 4. and Kolanowski v Poland [2009] EWHC 1509 Admin Lord Justice Stanley-Burnton para 1.9.)

Article 3.

31. In relation to category 1 territories, the starting point is an assumption that the requesting state is able to and will fulfil its obligations under the Human Rights Convention (R... Targosinski (v Poland) [2011] EWHC 322 Admin Lord Justice Toulson para 5).
32. The burden of proof that a category 1 country will not comply with its obligations is on the applicant and is a heavy one. It has to be proved beyond reasonable doubt. The mere possibility of breach is not sufficient. Cogent evidence must be adduced to discharge the heavy burden upon the appellant (Tworkowski v Poland) [2011] EWHC 1502 at para 14 Mitting J).
33. Where what is concerned is conduct which is indirect, such as the unavailability of treatment for illness, the threshold for breach of Article 3 is particularly high. The applicant must be at a critical stage in a fatal illness before removal to a receiving state, without the necessary medical facilities, would amount to inhumane treatment (see D v UK [1997] 24 EHRR 423).
34. To bring a case within the category of very exceptional cases, as represented by D v UK it must be shown that the applicant's medical condition has reached such a critical stage that there are compelling humanitarian grounds for not removing him or her to a place which lacks the medical and social services he or she would need to prevent acute suffering. That treatment may be beyond the reach of the applicant in the receiving state is not to be treated as an exceptional circumstance ... N v SSHD) [2005] UK HL 31; upheld in N v UK) [2008] 47 EHRR 39).
35. In assessing whether extradition might be oppressive the court has to consider the risk of future ill treatment contrary to Article 3. It cannot refuse extradition as a means of punishing the requesting state for any past failures, unless they can be shown to have a bearing on future risk. ... R (Berners v Westminster Magistrates Court [2010] EWHC 1010 Admin para 23).

Article 8.

36. The burden of proof rests with the applicant to show that extradition would be a disproportionate interference with his Article 8 rights. The threshold is very high. In Norris v Government of the United States of America [2010] UKSC 9 at para 82 Lord Phillips stated:

"only the gravest effects of interference with family life will be capable of rendering extradition disproportionate to the public interest that serves".

The DJ MCs decisions.

37. In his decision on Mr Wilby, the judge emphasised, in relation to Article 3, the very high threshold he stated as follows:

"I am satisfied that the Czech authorities are aware of their responsibilities and duties under the provisions of the ECHR. They are clearly well aware of Mr Wilby's health problems. They have specifically recommended that he bring with him all relevant paperwork as well as a short term supply of prescribed medication. They will arrange for a health assessment upon arrival into the Czech Republic and state that, in the event that his health were to deteriorate seriously, they would have procedures available for the necessary medical professionals to recommend release from custody. Furthermore they state that the trial is expected to start within or after 1 month of his arrival".

He considered the submission that the prison conditions that Mr Wilby would face would constitute a further and separate Article 3 breach. On both grounds he was not satisfied that the Article 3 challenge was made out. His approach to Article 8 was similar, emphasising the strong public interest in giving effect to extradition treaties and the very high threshold. He decided that the threshold was not surmounted.

38. In relation to section 25, he also emphasized the very high threshold and concluded that there was nothing to suggest that it had been met. He was satisfied that the Czech prison system would be able to deal adequately and appropriately with Mr Wilby's health difficulties.
39. In relation to Mr Halliday, he recorded that he had been told:

"that the Czech authorities have been provided with copies of his medical records and they have stated that adequate treatment will be provided to him… it is clear from the information provided by the Czech authorities that they are well aware not only of Mr Halliday's current state of health but also of the difficulties that arose in respect of his health in 2008. I am told that there is a possibility that he may not be detained in prison pending trial and that, even if convicted, a non custodial sentence may well be considered appropriate. I am also told that the Czech authorities have stated that Mr Halliday's trial is very likely to take place within a short time after his return…"

40. He concluded that he was satisfied that the Czech authorities were well aware of their ECHR duties and obligations and would abide by them and that there were no bars to his extradition request.

Submissions by the Appellants

41. Mr Wilby contends that the most cogent evidence of his future ill treatment in breach of Article 3 and/or 8 and/or section 25 is the evidence of what happened to him between the 16^th March and the 30^th December 2008. His medical treatment was deliberately neglectful. It was slow and he was not supplied with the medication he needed. Although he was seen straight away, he was not seen again, despite his HIV status, until mid August and there was no report on his condition until mid September. This was despite his doctor writing in June of his condition. The Czech medical authorities then recommended ART therapy but none was offered until his precipitate release on the 30^th December 2008. He was placed in a position where he could either afford to eat or to be medicated but not both and it was rational of him, in that predicament, to refuse medication, which was then used as a reason not to offer ART at all. Even if his release on the 30^th December was on medical recommendation its precipitate nature denotes a total indifference to his proper care. In addition, he says that his treatment in the prison amounted to degrading or inhuman treatment. In breach of patient confidentiality he was identified as HIV positive in the crudest way and segregated. He was not provided with the basic human decencies in the light of his continuing problem with night sweats. He was warned off hospitalisation and he was charged for necessary medication which placed him in the invidious position of choosing either to eat or to be treated for his serious medical complaints. Even when the insurance was sorted out he was still not supplied with the medication he required.
42. Mr Wilby emphasized that his subsequent susceptibility to liver aneurisms enhances the dangers which incarceration in the Czech Republic would hold for him. He says that the best evidence of future conduct is past conduct and that, therefore, the statements of intent by the Czech Republic authorities must be regarded as less probative of what is likely to happen than the evidence of what did happen in 2008.

Mr Halliday

43. Mr Halliday cites the experience of Mr Wilby as evidence of what may happen to him, despite the fact that his experience was somewhat different. In any event the Czech authorities recognised, in April 2008, that he should not be incarcerated and in March 2011 the Municipal prosecutor said that, having regard to his health status, a criminal prosecution will not end in the imposition of a sentence of imprisonment. In the light of that, it would be wholly inappropriate for him to be extradited into custody. The judicial authority would be going back on what it said in 2008 if he were to be taken into custody, whether pending trial or after trial. His multiple morbidity and very serious prognosis, particularly in relation to this heart complaint, is such that it is said that the very high threshold is surmounted and accordingly his extradition is barred pursuant to Article 25.

The Judicial Authority's Submissions

44. Leaving aside the factual disputes about 2008, I am concerned with what will happen now. The position is very different. Mr Wilby and Mr Halliday will return with their full medical histories well documented and made known to the Czech authorities. They will have with them not only details of their current medication but also current supplies of medication. This will be an orderly return. They will have no reason not to have in place the EHIC cover which will last for 5 years. In all those circumstances whatever difficulties there may have been in 2008 with Mr Wilby having the necessary medication prescribed and paid for would not arise.
45. The trial will in all likelihood start within a month. If they were convicted, it is unlikely, given Mr Halliday's health, that he would receive a custodial sentence, though that would be a matter for the court. The position in respect of Mr Wilby is less clear. Ms Bramwell in her closing submission indicated that potentially if he has similar health problems to those of Mr Halliday it is unlikely that he would receive a substantial custodial sentence though she could not say with certainty what the outcome would be. If sentenced to custody, there is an ongoing obligation to review the question whether the sentence should continue or should be suspended or abandoned. The procedures which resulted in their being released in 2008 would apply as much to them after conviction as it did whilst on remand. In those circumstances it is said the high threshold required for a breach of Article 3 and/or 8 and/or Section 25 is not remotely reached.

My Conclusions

46. There can be no doubt that Mr Wilby had an extremely difficult and unhappy time between March and December 2008 whilst in custody. It may well be that his day to day treatment at the hands of individual prison officers and/or other prisoners was neglectful and unpleasant. There is no doubt that there was, for several months, a difficulty about arranging the finance to provide him with the medication which the medical profession was recommending. It is a fact that he never did receive, nor was he ever offered, ART. It is also clear that he was released on the 30^th December 2008 in an unplanned way, as far as he was concerned.
47. However, it is also, in my judgment, clear that the medical treatment which he received was of a reasonable standard and provided within a reasonable time frame. He was immediately examined. At that time he was not under any medication in the UK. His position was reviewed within a reasonable time scale and had regard to what Dr Gant was saying. The report of 17^th September was produced within a reasonable time frame and reflected an appropriate diagnosis and regime of treatment. Problems with financing the medication, in my judgment, from the perspective of the Czech authorities, arose from bureaucratic difficulties rather than wilful neglect. Given a more ordered return to custody, if he is remanded in custody on his return, these difficulties would be well capable of being avoided. I am not persuaded that the way Mr Wilby was treated when in prison in 2008 represents a systemic failure nor anything more than individual shortcomings. Nor am I persuaded that they are likely to be repeated in the context of his controlled return arising from the present proceedings given what the Czech authorities have said about their approach to their return.
48. It is clear that the Czech system contains a developed and active system of keeping detention under constant review where people are suffering from severe medical ailments and it contains a properly structured scheme for ensuring that a court can take a decision, with proper medical advice, to suspend, or abandon, any sentence of detention that may be passed. It seems unlikely, having regard to the approach taken in Mr Halliday's case and the statements of the prosecutor in relation to him, that Mr Halliday or Mr Wilby will, if convicted, be sentenced to a custodial sentence or, if they were, would be required to serve very long in custody, if their medical conditions remain as they are. Furthermore, in my judgment, the additional medical difficulty from which Mr Wilby suffers in relation to his liver aneurism has now settled sufficiently that the prospects of its recurring are remote. If it did the Czech authorities will be well aware of that possibility and of the need for urgent action.
49. It must be accepted that the return of Mr Halliday and Mr Wilby to the Czech Republic, potentially to custody, will be upsetting and, in certain respects, unpleasant for them. However, as the authorities make it clear, whether it is Section 25 or Section 21 (Article 3 or 8), the hurdle to be surmounted by an appellant to establish a bar to extradition is very high. In my judgment the cases of neither Mr Halliday nor Mr Wilby come anywhere near what is required for any of the hurdles to be surmounted by them. Accordingly, in my judgment, the DJ MC did not err in law in his approach to the questions he had to answer and I dismiss the appeals.
50. The same reasoning applies in respect of the argument which Mr Wilby sought to raise in relation to the passage of time. In truth, the way he put it meant that it added nothing to his argument on Section 25. The main consequence of the passage of time was said to be the stab injury, subsequently received by Mr Wilby, giving rise to the liver condition which I have taken fully into account in relation to section 25.
51. For the reasons I have set out above, the appeals of both Mr Wilby and Mr Halliday are dismissed.
52. In relation to Mr Wilby, however, it is clear that he is about to undergo minor surgical treatment for a hernia. In the light of that I have decided that his extradition and as a necessary consequence that of Mr Halliday should not take place until the beginning of June. The "required period" pursuant to section 36 of the 2003 Act will not start until the day on which this decision on appeal becomes final or the 1^st June whichever is the later date.