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
		25 July 2012

1. MR JUSTICE OUSELEY: There are seven appeals before me against decisions of various district judges at the City of Westminster Magistrates' Court in which there is a single common point of appeal. That is that the conditions in which Polish extraditees are conveyed from Biggin Hill to Poland, within Polish jurisdiction and under Polish control, breach Article 3 of the ECHR. Although some raised a question of whether precisely the same conditions breached Article 8, Mr Atlee, who appears in all those cases, accepts that Article 3 is the appropriate measure and no different result could emerge from an examination of the same facts within the Article 8 framework instead.
2. There are two other appeals in which a further point is raised, but Mr Atlee, who appears also in those appeals, accepts that the arguments here in these seven in relation to Polish flight conditions will dispose of the point in those two appeals as well.
3. In most of the cases, the issue was not raised before the district judge. In a number of the cases, the Notice of Appeal did not have any evidence available to support it. All else apart, there is every prospect that an appeal in that form would be called on for disposal within a matter of days after its being lodged without more ado. I also point out that I made a number of orders about the filing of evidence without prejudice to admissibility, all of which have been ignored.
4. I am concerned, however, to deal with the substance of this point, because if good, it is a point of considerable importance which would effectively lead to a major re-examination by the Polish authorities of the manner in which they transport extraditees, and if bad, is best given its quiescence as soon as possible.
5. As is not difficult to imagine, a certain amount of prison chatter has given rise to concerns that have led to some solicitors to try to find evidence, perfectly properly, to support the concerns of their clients. This is, however, one area in which the running has been made by this particular firm.
6. The first piece of evidence upon which they rely was produced in a witness statement of Miss Chung. This consisted of photographs of the interior of an extradition flight in a military aircraft. The photographs were published by The Daily Telegraph and The Daily Mail online. Their purpose was not to highlight the conditions of transport, but rather the cost of the sometimes quite trivial extradition warrants which Polish judicial authorities issue.
7. Nothing in the photographs suggests that at the moment when they were being taken any breach of Article 3 was occurring. They show a plane configured in an old-style, troop-carrying way, with seats down the side of the plane with netting over the windows, and the passengers, or at least some of them, in handcuffs next to custodians, but they do not show passengers wearing any other form of restraint.
8. The issue was raised in the appeal of Pietluch before District Judge Zani, who had a certain amount of evidence in response on behalf of the Polish authorities. That evidence persuaded District Judge Zani, whose judgment was applied by other district judges in at least two other cases, that there was no breach of Article 3 in the proposed and commonplace manner of transport.
9. He referred to the test, as did Mr Gibbins before me, set out in Miklis v Deputy Prosecutor General of Lithuania [2006] EWHC 1032 (Admin), in which Latham LJ said that the fact that human rights violations took place is not in itself evidence that a particular individual would be at risk of those violations. That would depend on the extent to which a particular individual could be said to be specifically vulnerable by reason of a characteristic which would expose him to human rights abuse.
10. Mr Atlee, before District Judge Zani, had said that the extraditees were handcuffed or shackled. He also had argued that the Polish military aircraft had a poor safety record. The judge had, however, evidence as to why Polish extraditees went by air and not by sea (there being no direct route) nor by rail, a two-day journey with a number of borders to cross. He had before him evidence to which I shall turn which described the manner in which Poles were extradited. The first piece of evidence was from Mr Kaminski, Head of the Convoy Unit at Police Headquarters in Warsaw, who, in a letter translated into English and dated 22 May 2012, explained that there was approximately one military aircraft flight a week with between 20 and 25 extraditees per flight. The aircraft was a CASA C-295M. Prior to departure, crew members gave a safety briefing to the passengers. All seats were equipped with a seat belt. Detainees were allowed to use the toilet during the flight, which had a bowl and a sink. The planes were pressurised and had full air conditioning. Handcuffs were an authorised method of restraint. Use of a direct restraint method was employed to eliminate incidents that could threaten the safe completion of the procedure and they were authorised by law. In a passage to which Mr Atlee referred, he had said that detainees were not "restrained in any other way...no other direct restraint method is permitted". Military aircraft such as this were used by members of the Polish Cabinet and presidential staff members, and aircraft were appropriately serviced before every flight.
11. District Judge Zani had also a statement from Miss Jolly, a SOCA officer. She gave evidence that military flights had been used since 30 November 2007, and in the 118 flights since then there had been no reported incidents on any of these flights. The Poles no longer used the Hercules C130, and instead used the CASA. She produced photographs of the interior of the aircraft which, in the configuration generally used, had standard airline seats for each prisoner and accompanying officer with seat belts, and faced the direction of travel, rather than being along the side of the plane. Arrangements were made for an extraditee to travel only if SOCA were satisfied that the person was fit to fly. She had witnessed kindness and compassion from UK officials towards both bail and custody prisoners.
12. Police Sergeant Rance made statements which confirmed the distinction between those surrendering on bail and those in custody. He gave evidence that if the British officials were in charge, they used forms of restraint if necessary such as a body cuff in addition to handcuffs, but that was on commercial flights. He was aware that leg restraints were used by other countries.
13. Miss Kaldowski, an interpreter and translator who had assisted in removal arrangements at Biggin Hill since the summer of 2010, confirmed that in her experience detainees from custody were kept in the prison van or police vehicles at the airport, but were allowed out for a cigarette break, to stretch their legs and to use toilet facilities under escort. She had seen Polish officers prepare leg restraints, but had not actually seen them applied. Officers did also take refreshments out from the airport buildings to those who were kept in the prison vans whilst they were waiting for the aircraft. Those on bail could use the terminal facilities without such constraints. She said that UK officers were always unfailingly polite and helpful to the extraditees.
14. The allegations do not relate to anything done by British officials, whether prison or some other authority, in relation to the transport or handover process at Biggin Hill, but concern exclusively the conditions under which the Polish authorities transport the extradited persons. District Judge Zani, as I have said, held that there was no breach of Article 3 and his judgment has been followed.
15. I should add at this stage before turning to the next piece of evidence that although dangerousness of the aircraft was raised in the skeleton arguments, it is not a point that was pursued. It was inspired by the thought that Soviet-style Antonov transport planes were used, which it was said had a poor safety record. Be that as it may, that point is not pursued in the light of the evidence as to the sort of aircraft that is used.
16. Since District Judge Zani's judgment, however, there has been one further piece of evidence that has come to the hands of the appellants, and indeed without it their cases would be completely hopeless. This is a statement made on 13 July 2012 by a Dariusz Kaczor, who gives his address as somewhere in Wembley Park. Although he was out of the country when he made it, it was taken down over the telephone and subsequently signed. He was extradited on 22 November 2011 from Biggin Hill. He was on bail when he was handed over. He said that he was handcuffed and his feet were cuffed, and then he was put on the plane, which he found difficult. He was sat down next to a policeman and he was chained to a point on the floor of the aeroplane next to his seat, unable to move. He said that everybody else on the plane had the same treatment. There were 88 people on the plane, half of whom were extraditees and the other half policemen to look after each of the extradited persons. The police were wearing thick coats. He explained that he found it freezing because there was no heating. He was so cold that "my teeth were chattering during the flight". He was refused permission during the six-hour flight to go to the toilet and was desperate to relieve himself. He said nobody else was allowed to go to the toilet either. He gives no further evidence about that. He noticed that people from prison had all been given a pre-prepared package of food, but it had been taken away and never returned. He was not allowed to eat his own food, nor was he allowed a drink. The police, however, did have food, which they ate. He found the flight very noisy and the police had ear protection. He refers to an incident after he got off the plane.
17. In response to that statement, the Polish authorities produced a statement letter, dated 24 July 2012, from someone at the National Police Headquarters Preventive Bureau. He said that direct coercion did permit the use of joined shackles designed to restrain arms and legs together. In appropriate cases, police were entitled to use that, but he said it happened rarely. People simply were not chained to the aircraft's structural components. That was prohibited. They were allowed to use the toilet facilities except when considerations of flight safety, such as takeoff and landing, prohibited it. They also received a meal within two hours of landing. The sort of aircraft currently being used, the CASA C-295M, did not require hearing protection. The Antonov was withdrawn in 2009. Occasionally the Hercules was used if a large number were being transported, which he said is the type that Kaczor was extradited on, but it had not been used in 2012 thus far.
18. He specifically responded to Mr Kaczor's allegations, saying that no measure of direct coercion was applied to him until after the plane had landed, while he was being escorted off the plane. It was necessary because of his aggressive behaviour, including refusing to leave the aircraft. The author also says that an escorted person may complain to the police, to the court, to the public prosecutor and to the ombudsman, and can take proceedings in the European Court of Human Rights.
19. Before I turn to the significance of all that evidence, I mention two further points raised but not pursued. The first is an allegation that these flights are conducted in conditions of secrecy. That, as Mr Gibbins points out, is at odds with the press cuttings. Second, that there had been silence in response to enquiries. There was, it appears, delay in responding to enquiries, but the enquiries have been responded to.
20. I have already referred in setting the framework for these issues to the decision in Miklis. Mr Gibbins referred me to the case of Shchukin and Others v Cyprus [2010] ECHR 1210 (29 July 2010). This concerned the transport of people from Cyprus to Odessa who complained that they left in summer clothes and arrived in winter. It was said that the absence of an ability to take warm clothing, or to obtain it before disembarkation, breached Article 3, a complaint rejected as manifestly ill-founded. The court said there was no indication of any intention to humiliate or debase, and nor had it been claimed or shown that they were adversely affected to any extent. But Mr Atlee relies on it as showing that transport conditions are not excluded from the scope of Article 3 and may be such as to breach them. In principle, I accept that submission. The question is whether they do so in this case.
21. Mr Atlee also referred me to the decision in a very different subject matter, Pretty v United Kingdom 2346/02 [2002] ECHR 427 (29 April 2002) in which at paragraph 52 the court referred to the degree of ill-treatment that had to be shown for Article 3 to be breached. Treatment had to humiliate or debase an individual, showing a lack of respect for, or diminishing, his or her human dignity or arousing feelings of fear, anguish or inferiority "capable of breaking an individual's moral and physical resistance". Those indicate the high threshold that has to be satisfied before circumstances can be said to breach Article 3. As I have already said, Miklis shows that a real risk requires evidence of widespread problems rather than an occasional one.
22. It is my judgment that the evidence in this case is nowhere near establishing a breach of Article 3. The only relevant piece of evidence is the short recent statement from one extraditee which is challenged in fact as to part. In my judgment, what Mr Kaczor says about being shackled to the plane is simply wrong. I accept that leg and arm restraints are used at times, but what he says about them being used for everyone on the whole flight I find impossible to accept, particularly in the light of the photographs which I have seen and the evidence in the most recent letter. His evidence is inadequate in that it explains nothing of the levels of cold and is not supported by evidence in relation to the levels of cold. He does not describe what he was wearing for the flight either, nor is there evidence as to the noise levels. It is to be borne in mind that those police officers who wore greatcoats and had ear protection not only would be doing the journey there and back but would be likely to be doing it with some frequency.
23. There is no evidence either that anybody who was refused permission to go to the toilet urinated or defecated on the floor, which suggests that for that number of people on a flight of six hours the circumstances were not as Mr Kaczor described. I accept Mr Gibbins' point that it is extremely unlikely that police escorts who had to sit next to these individuals throughout the whole flight would be willing to sit next to somebody having forced them to urinate or defecate, and it would in any event by highly unlikely to be conducive to the good order of the flight, and it would be of utmost concern if fellow passengers could see someone else being reduced to such extremes.
24. There is no evidence that anybody has ever complained about conditions on a Polish flight to the Polish authorities or taken proceedings in Strasbourg in relation to them. Yet these flights have been going on since 2007 and between 2007 and 2009 would have been undertaken in the less comfortable conditions of the Antonov. It is quite clear that the generality of flights, by a very considerable margin, take place in planes other than those to which Mr Kaczor refers anyway.
25. The very difficulty which is asserted by the appellants in obtaining evidence to support their case is eloquent testimony to the absence of evidence to support what Mr Kaczor says. It is to my mind not capable of being accepted as a basis of a finding that Article 3 was breached in the light of the other evidence that has been given on behalf of the Polish judicial authorities to which I have referred.
26. I have to say as well that even taking Mr Kaczor's evidence at face value I would not find that that involved a breach of Article 3. Even taking six hours, even taking a desperate desire to go to the lavatory which could not be fulfilled, absence of food and drink, cold and noisy, it is uncomfortable, undesirable, but there is no evidence of any significant adverse effect on him and, so far as material, no intention of debasing or humiliating him. Rather there is what might be an overly tough attitude towards the maintenance of order on the flight.
27. For all those reasons, I have come to the conclusion clearly that the Polish conditions of extradition do not breach Article 3, and I hope that that will be the end of the point.
28. I shall now deal with the surviving non-Polish military flight points in the two cases in which they arise.
29. MR GIBBINS: My Lord, may I interject with just two matters. The first is that there are a number of matters, I believe all of them in which Mr Atlee is instructed, that are currently for hearing on the same point in the City of Westminster Magistrates' Court on 26 August. My Lord, I am conscious that the holiday period is almost upon us. I wonder if efforts could be made for my Lord's judgment to be made available in advance of 26 August.
30. MR JUSTICE OUSELEY: We can see. The real problem is I do not intend to be here, but it may be capable of being sent to me.
31. MR ATLEE: Could I say they are not all my cases.
32. MR JUSTICE OUSELEY: It does not matter, Mr Atlee. I will try and get the transcript out. I do not know whose cases they are.
33. MR ATLEE: If it would assist the court, I can confirm that I shall be notifying the Westminster Magistrates' Court that I am no longer in a position to assist those I represent (Inaudible).
34. MR JUSTICE OUSELEY: That is very proper, Mr Atlee.
35. MR GIBBINS: My Lord, the other matter, and I tread very carefully, but I am mindful of both the caution that this court quite rightly approaches such matters with, and that is the question of wasted costs. I do not pursue it --
36. MR JUSTICE OUSELEY: No. There was evidence in the end that had to be considered, and I have reached a view on it. I think if we had not had that other evidence, then the issue might have been one to arise, but I think we would spend a lot of time in the end to no real avail. I have said what I wish to say.
37. MR GIBBINS: I push it no further, my Lord.
38. MR ATLEE: My Lord, would you permit me to observe that if the evidence of Mr Kaczor had not become available, an application would have been made to withdraw.
39. MR JUSTICE OUSELEY: Yes.