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
		26 September 2012

1. MR JUSTICE BEAN: This is an application by the appellant to adjourn an appeal to this court against a decision of District Judge Purdy that he be extradited to Poland on a conviction warrant. He has been convicted of one offence of assault and one of gaining a pecuniary advantage by deception, each of which took place some 10 years ago and in respect of which he has a little less than 2 years to serve. He has also been charged with an offence of fraud.
2. He raised before the District Judge the passage of time and, in very general terms, an Article 8 challenge. On 7 June (which was, I am told, the fourth hearing in the Magistrates' Court) the matter proceeded to an uncontested extradition hearing. He lodged his notice of appeal with the Administrative Court on 13 June, that is the 7th day of the period beginning with the date of the hearing at which the extradition order was made. So that was in time, but unfortunately notice was not served on the Crown Prosecution Service until five days later. That notice was out of time, and the question of whether that would be a bar to a successful appeal raises some interesting issues under the case law beginning with Mucelli v Albania and continuing to the more recent Supreme Court decision of Pomiechowski v Poland. Counsel have cited some authorities from the European Court of Human Rights and the European Commission of Human Rights as well.
3. I prefer to concentrate on the substance of the matter. Mr Jesurum, for the appellant, seeks an adjournment on the basis of a witness statement just taken from Mrs Beata Lignman, the appellant's former wife and current partner, who says as follows:

i. "We were married between 1984 and 2003. We divorced in 2003 but stayed together as partners. We plan to marry again soon.

ii. We have two adult sons who do not live with us ...

iii. Our youngest Janusz was born in 2000.

iv. I was diagnosed with bipolar disease in 2001 or 2002. I received treatment in Poland at a private hospital. I received drugs in Poland which induced dependency.

v. I have lived in the UK since 2011 together with my husband and our youngest son. Since being in the UK I have been weaned off the drugs that I had in Poland and given sleeping tablets. I am currently on 40 milligrams a day of citalopram now reduced to 20 milligrams. I have been advised that I can reduce this further. I am receiving good treatment from my General Practitioner in the UK.

vi. I am very concerned that my health will be severely affected if my husband was extradited to Poland. I am completely dependent on him. I do not speak English and he interprets for me with the doctor. He is also very important in helping me care for our child. I have attempted suicide previously and if he was extradited to Poland I do not think I would be able to cope in the UK or function without him.

vii. I am concerned that my health will deteriorate if my husband is deported and that I will again attempt suicide and that my son will be taken into care."

4. It does not appear that any of this was placed before the District Judge. Mr Jesurum recognises that this witness statement on its own would be insufficient to persuade the court that extradition should be refused on Article 8 grounds. That is entirely realistic. But Mr Jesurum seeks an adjournment so that expert psychiatric evidence can be obtained about Mrs Lignman's state of health and fuller evidence given as to the likely effect on Janusz, who is now 12 years old, of his father's extradition to Poland given the allegedly fragile state of his mother's health.
5. In the well-known case of The Szombathely City Court v Fenyvasi [2009] EWHC 231 (Admin), the then President of the Queen's Bench Division, Sir Anthony May, gave guidance about the difficulties facing litigants who are the subject of an extradition order in the Magistrates' Court and who seek to rely on new evidence in this court. He said that evidence which was "not available at the extradition hearing" means evidence which either did not exist at the time of the extradition hearing or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained. The President continued:

i. "If it was at the party's disposal or could have been so obtained, it was available. It may on occasions be material to consider whether or when the party knew the case he had to meet. But a party taken by surprise is able to ask for an adjournment. In addition, the court needs to decide that, if the evidence had been adduced, the result would have been different resulting in the person's discharge. This is a strict test, consonant with the parliamentary intent and that of the Framework Decision, that extradition cases should be dealt with speedily and should not generally be held up by an attempt to introduce equivocal fresh evidence which was available to a diligent party at the extradition hearing. A party seeking to persuade the court that proposed evidence was not available should normally serve a witness statement explaining why it was not available. The appellants did not do this in the present appeal.

ii. ... Even for defendants, the court will not readily admit fresh evidence which they should have adduced before the district judge and which is tendered to try to repair holes which should have been plugged before the district judge, simply because it has a Human Rights label attached to it. The threshold remains high. The court must still be satisfied that the evidence would have resulted in the judge deciding the relevant question differently, so that he would not have ordered the defendant's discharge. In short, the fresh evidence must be decisive."

6. I consider, firstly, that evidence as to Mrs Lignman's state of health was available or could have been obtained in the Magistrates' Court within the terms of the judgment in Fenyvesi. If, as Mrs Lignman says, she and the appellant are still partners, then it must have been known to the appellant at the time of giving instructions to his lawyers in the Magistrates' Court what his partner's state of health was, and concerns about her or about the effect on Janusz could and should have been conveyed to his lawyers.
7. Secondly, even if the statement of Mrs Lignman had been before the District Judge, I cannot imagine that it would have led him to a different conclusion from that which he reached. It is very rare indeed for the courts to hold that the effect of extradition on the fugitive's partner or children is a reason for blocking extradition. If it were it would apply in almost every case.
8. As to Mrs Lignman's references to her having attempted suicide, this would have to be the subject of expert evidence. The subject of suicide risk of the fugitive has been considered in a number of cases, including a decision of mine in Wrobel v Poland and a recent decision of the Divisional Court in which Aikens LJ reviewed the cases on the risk of suicide by the fugitive. There are no authorities of which I am aware on the risk of suicide by a fugitive's partner, but it seems to me that that risk cannot put the fugitive in a better position in law than the risk that he himself might attempt suicide. As to that, the case law establishes that there has to be a very high probability of a successful suicide attempt being made if extradition is to be refused on that basis.
9. So even if it were not for the rule established in Fenyvasi, it is entirely speculative, on the evidence before me, whether any successful challenge to extradition could have been mounted. On the contrary, it seems to me overwhelmingly probable that it could not.
10. The appellant has not made out a case for adducing fresh evidence, and I therefore refuse an adjournment.
11. Mr Jesurum, are there any other substantive points that you would wish to raise today given that I have refused an adjournment?
12. MR JESURUM: My Lord, no. In view of your Lordship's ruling, the point on service and everything else becomes irrelevant. May I ask for detailed assessment of costs?
13. MR JUSTICE BEAN: Yes, I will just finish off the judgment and then certainly you may have that order.
14. I then have to decide whether there are any grounds before me today on which an appeal could succeed. In my judgment, there are not. This makes it unnecessary to decide the point about whether the appellant's notice was served in time. Even on the assumption that it was, the appeal must be dismissed.
15. I grant an order for legal aid assessment of the appellant's costs. Thank you both very much for your assistance.