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
		30/01/2013

The President of the Queen's Bench Division

This is the judgment of the court.

1. These three appeals were heard together because they raised the question as to whether proceedings for the extradition of the appellants under European Arrest Warrants (EAW) ought to be discharged or adjourned because of the risk that the appellants might commit suicide by reason of their mental condition. It is convenient first to consider the general approach before turning to the facts of each case though, as we shall make clear, the decision in each case is highly fact sensitive.

I Suicide Cases

2. Although it will be necessary to refer to the argument raised under Article 3 of the ECHR, the relevant provision in relation to proceedings under an EAW is s.25 of the Extradition Act 2003 (the 2003 Act) which provides:

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

(a) The meaning of s.25 of the 2003 Act

3. It was contended on behalf of each of the respondent judicial authorities that s.25 of the 2003 Act ought to be interpreted in the light of the Framework Directive and in particular Article 23.4 which provides as follows:

"The surrender may exceptionally be temporarily postponed for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the requested person's life or health. The execution of the European arrest warrant shall take place as soon as these grounds have ceased to exist. The executing judicial authority shall immediately inform the issuing judicial authority and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed."

It was submitted that as the Article refers to temporary postponement, the exercise of the power under s.25 should only be for temporary postponement save in an exceptional case.

4. As is clear from decisions of the CJEU in Criminal Proceedings against Pupino (Case Cl05/03 [2006] QB 83 at paragraphs 43 and 47, Dabas v High Court of Justice in Madrid [2007] UKHL 6, [2007] 2 AC 31 at paragraphs 4 and 5 (Lord Bingham), paragraphs 15-22 (Lord Hope), paragraph 76 (Lord Brown) and Assange v The Swedish Prosecution Authority [2012] UKSC 22, [2012] 2 AC 471 at paragraphs 6-10 (Lord Philips) and paragraphs 121-2 (Lord Dyson) and at paragraphs 198-218 and 245-6 (Lord Mance), the Act ought to be interpreted wherever possible to achieve the results sought by the Framework Decision. However in Officer of the King's Prosecutor Brussels v Cando Armas [2006] 2 AC 1, Lord Bingham expressed at paragraph 8 his view:

"Part 1 of the 2003 Act did not effect a simple or straightforward transposition, and it did not on the whole use the language of the Framework Decision. But its interpretation must be approached on the twin assumptions that Parliament did not intend the provisions of Part 1 to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure of cooperation by the United Kingdom than the Decision required, it did not intend to provide for less."

5. He agreed with Lord Hope who said at paragraph 24:

"But the liberty of the subject is at stake here, and generosity must be balanced against the rights of the persons who are sought to be removed under these procedures. They are entitled to expect the courts to see that the procedures are adhered to according to the requirements laid down in the statute. Unfortunately this is not an easy task, as the wording of Part 1 of the 2003 Act does not in every respect match that of the Framework Decision to which it seeks to give effect in domestic law. But the task has to be approached on the assumption that, where there are differences, these were regarded by Parliament as a necessary protection against an unlawful infringement of the right to liberty."

6. It is clear s.25 (and its equivalent in Part 2 of the Act, s.91) was introduced for the specific purpose of transferring to the court the power to deal with cases where ill health arose, as opposed to allowing the decision to be made by the Secretary of State. The terms of the section used the terms used in previous statutes; in particular the terms "unjust" and "oppressive" had the benefit of the well known exposition in Kakis v The Government of the Republic of Cyprus [1978] 1 WLR 799: see Government of the Republic of South Africa v Dewani [2012] EWHC 842 (Admin) at paragraphs 66-67. S.25 gives the express power to the court to discharge. We cannot therefore accept that the provision should be limited to a temporary postponement save in exceptional cases or should be interpreted more narrowly than the express terms in which it was enacted by Parliament.

(b) The previous cases

7. There have been a large number of cases in which the question as to whether the mental condition of a requested person who poses a substantial risk of suicide amounts to his extradition being unjust or oppressive or in breach of Article 3 of the Convention. These include:

Boudhiba v National Court of Justice, Madrid [2006] EWHC 167 (Admin),

Prancs v Rezekne Court of Latvia [2006] EWHC 2573 (Admin),

Kwietniewski v Circuit Court in Tarnobrzeg, Poland [2008] EWHC 3121 (Admin),

Spanovic v Government of Croatia [2009] EWHC 723 (Admin),

Jansons v Latvia [2009] EWHC 1845 (Admin),

Howes v HM Advocate [2009] HCJAC 94, (2010) SLT 337,

Prosser v Secretary of State [2010] EWHC 845 (Admin),

Rot v District Court of Lublin, Poland [2010] EWHC 1820 (Admin),

S v Court of Bologna [2010] EWHC 1184 (Admin),

Wrobel v Poland [2011] EWHC 374 (Admin),

Mazurkiewicz v Poland [2011] EWHC 659 (Admin),

Griffin v Westminster Magistrates Court and Tribunal de Grand Instance, France [2011] EWHC 943 Admin,

Kozlowski v Poland [2012] EWHC 1706 (Admin),

Savage v USA [2012] EWHC 3317 (Admin).

8. In a recent suicide case, Turner v Government of the USA [2012] EWHC 2426 (Admin), Aikens LJ summarised the propositions which could be derived from these cases at paragraph 28:

"(1) The court has to form an overall judgment on the facts of the particular case.

(2) 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.

(3) The court must assess the mental condition of the person threatened with extradition and determine if it is linked to a risk of a suicide attempt if the extradition order were to be made. There has to be a "substantial risk that [the appellant] will commit suicide". The question is whether, on the evidence the risk of the appellant succeeding in committing suicide, whatever steps are taken is sufficiently great to result in a finding of oppression.

(4) The mental condition of the person must be such that it removes 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 if that is the case there is no oppression in ordering extradition.

(5) On the evidence, is the risk that the person will succeed in committing suicide, whatever steps are taken, sufficiently great to result in a finding of oppression?

(6) Are there appropriate arrangements in place in the prison system of the country to which extradition is sought so that those authorities can cope properly with the person's mental condition and the risk of suicide?

(7) There is a public interest in giving effect to treaty obligations and this is an important factor to have in mind."

9. We agree with counsel that this is a succinct and useful summary of the approach a court should adopt to s.25 and s.91 of the 2003 Act.

(c) The importance of preventative measures

10. The key issue, as is apparent from propositions (3), (5) and (6), will in almost every case be the measures that are in place to prevent any attempt at suicide by a requested person with a mental illness being successful. As Mr Watson correctly submitted on behalf of the respondent judicial authorities, it is helpful to examine the measures in relation to three stages:

i) First, the position whilst the requested person is being held in custody in the United Kingdom is clear. As Jackson LJ observed in Mazurkiewicz at paragraph 45, a person does not escape a sentence of imprisonment in the UK simply by pointing to the high risk of suicide. The court relies on the Executive branch of the state to implement measures to care for the prisoner under the arrangements explained in R v Quazi [2010] EWCA Crim 2759, [2011] Crim LR 159.

ii) Second, when the requested person is being transferred to the requesting state, arrangements are made by the Serious Organised Crime Agency (SOCA) with the authorities of the requesting state to ensure that during the transfer proper arrangements are in place to prevent suicide in appropriate cases. As Collins J helpfully mentioned in Griffin at paragraph 52, steps should ordinarily be taken in such cases to ensure that no attempt is made at suicide and proper preventative measures are in place. Medical records should be sent with the requested person and delivered to those who will have custody during transfer and in subsequent detention.

iii) Third, when the requested person is received by the requesting state in the custodial institution in which he is to be held, it will ordinarily be presumed that the receiving state within the European Union will discharge its responsibilities to prevent the requested person committing suicide, in the absence of strong evidence to the contrary: see the authorities set out at paragraphs 3-7 of Krolick and others v Several Judicial Authorities of Poland [2012] EWHC 2357 and paragraphs 10-11 of Rot. In the absence of evidence to the necessary standard that calls into question the ability of the receiving state to discharge its responsibilities or a specific matter that gives cause for concern, it should not be necessary to require any assurances from requesting states within the European Union. It will therefore ordinarily be sufficient to rely on the presumption.

It is therefore only in a very rare case that a requested person will be likely to establish that measures to prevent a substantial risk of suicide will not be effective.

11. Furthermore it should therefore not ordinarily be necessary at a hearing before the District Judge for him to be referred to the facts of the other cases: Lord Reed described them as merely illustrative in Howes. We would repeat the observation made in Dewani at paragraph 73 in relation to s.25 and s.91 of the 2003 Act, that little help is gained by reference to them.
12. It was submitted by the appellants that there was a difference between the approach to s.25 and s.91 of the 2003 Act summarised in Turner and the way in which the risk of suicide should be considered under Article 3 of the Convention, as under Article 3, in the light of the decision of the ECtHR in Harkins and Edwards v UK (2012) 55 EHRR 19, there was no balancing exercise to be undertaken by bringing into account the importance of honouring extradition agreements. It is not necessary to say any more than that this is a point that does not arise in the present appeals or is likely to arise in other cases. The issue will be determined, as is evident from what we have stated, by the degree of risk of suicide and the measures in place to prevent suicide succeeding.

(d) The timescale for appeals

13. In each of these appeals we have considered psychiatric evidence that was not before the District Judge. We have done so, exceptionally, because we considered it in the interests of justice to do so. That has in part been because of the delay that elapsed in the hearing of the appeals.
14. It is clear, however, that, once a decision has been made by the District Judge, the appeal in a case where the risk of suicide is in issue must be heard within as short a timescale as is practicable. There are two reasons for this. First, it is self evident that the stress on the requested person is greatly increased by any delay in the appeal as is the risk of self harm; as a matter of common humanity expedition is essential. Second, the decision in such cases by the small number of judges who hear these cases is highly fact sensitive. It is often reached after hearing psychiatric evidence. An appellate court's review of the decision made by the District Judge should be on the same evidence as was before the judge. It should not be necessary to have fresh evidence which a requested person might wish to put before the appellate court on the basis that the elapsed time has brought about a material change in the mental state of the requested person.
15. The court will therefore, for the future, ordinarily aim to hear appeals where the issue of the risk of suicide is in issue within two to three weeks of the notice of appeal being lodged. Parties must therefore be prepared for the appeal to be heard within this timescale. This means that a skeleton argument should, if possible, be lodged with the notice of appeal; if it is not, a direction will ordinarily be made that the papers, including skeleton arguments, be served within a period of between 7 and 14 days, dependent on the date of the hearing.
16. We turn to the three appeals before us.

II Mariusz Wolkowicz (alias Del Ponti)

(a) The offences committed by Wolkowicz

17. On 26 May 2011 the Regional Court at Bialystok, Poland issued a conviction EAW against Wolkowicz (otherwise known as Del Ponti) who was born on 30 October 1977. It related to convictions before the Regional Court on 27 June 2003, 16 January 2006 and 22 September 2006 for which he was sentenced to a cumulative total of over 14 years imprisonment; he has at least nine years to serve. The offences of which he was convicted were in total 24. They included many offences between 1995 and 2004, including offences of burglary, forgery, theft, assault, robbery and several offences of escaping from custody and failing to surrender. The warrant was certified by SOCA on 5 August 2011.
18. As the extradition proceedings in respect of that warrant were concluding, the Regional Court as Bialystok issued on 14 August 2012 an accusation EAW against Wolkowicz in respect of an alleged obtaining a pecuniary advantage by deception by selling fake gold rings in Bialystok in April 2010.

(b) The course of the extradition proceedings

19. Wolkowicz was arrested under the conviction EAW on 5 August 2011 in Huddersfield where he was being held under his alias of Del Ponti for unrelated matters. It was Wolkowicz's evidence that he had come to the UK to join other members of his family in 2009, as he was severely disabled (as we explain at paragraph 28 below) and hoped that he could receive better medical treatment in the UK.
20. On 6 August 2011 he appeared at the City of Westminster Magistrates' Court before the then Deputy Senior District Judge. At a hearing later that month it was indicated that issues would be taken in respect of his physical health under s.25 and in relation to his conviction in absence under s.20 of the 2003 Act. There were then numerous further hearings. The Polish Judicial Authority provided further information about various issues, including an assurance that he would be under the care of medical specialists if returned to Poland; this would include treatment at public hospitals outside prison.
21. In the course of 2011 expert urologists, Mr Miller and Mr Shah, wrote reports. On 6 December 2011 Wolkowicz obtained authority to instruct a neurologist. On 26 December 2011 Mr Ameen, a consultant neurosurgeon, prepared an expert report.
22. The extradition hearing commenced on 12 December 2011 before the Senior District Judge and continued at various hearings in March. On 21 March 2012, the Senior District Judge heard evidence from Mr Ameen about the effect of imprisonment on his physical condition. On 23 March 2012 Dr Peter Pierzchniak, a consultant forensic psychiatrist (who is also an Honorary Lecturer at Guy's King's and St Thomas' Medical School), saw Wolkowicz. Dr Pierzchniak wrote a report on 28 March 2012.
23. On 29 March 2012 the case was listed for judgment before the Senior District Judge but at that hearing an issue was raised of a risk of suicide; the report of Dr Pierzchniak was served. Further hearings then followed.
24. In the summer of 2012, Wolkowicz, through different solicitors, commenced judicial review proceedings in respect of his treatment in prison by Her Majesty's Prison Service. The only relevance of those proceedings to these extradition proceedings is that on 29 May 2012, Dr Rix, a consultant psychiatrist, was requested by the court in the judicial review proceedings to prepare a report on his psychiatric condition. He prepared a report dated 11 June 2012 to which we refer at paragraph 30 below.
25. In September 2012, Dr Philip Joseph, a consultant in forensic psychiatry at St Mary's and St Charles, London, examined Wolkowicz on behalf of the Polish Judicial Authority. He produced a report dated 6 September 2012.
26. On 17 September 2012 Dr Pierzchniak and Dr Joseph gave evidence before the Senior District Judge. On 15 October 2012 the Senior District Judge gave judgment on both EAWs and ordered the extradition of Wolkowicz to Poland.

(c) The judgment of the Senior District Judge on s.20: deliberate absenting from trial

27. The judge heard the evidence of Wolkowicz in respect of his contention that he did not deliberately absent himself from the trial. The judge held the bar under s.20 did not arise. As there is no appeal on this issue, it is not necessary to set out the evidence and the conclusion of the Senior District Judge.

(d) The evidence in relation to his physical disability

28. Wolkowicz gave evidence to the District Judge in relation to his physical and mental condition. His evidence was that he had come to the United Kingdom at the end of 2009 when he already used a wheelchair. He could then cover small distances on his crutches. After his arrest in the UK in respect of other matters and whilst on remand, he fell down some stairs in October 2011. He also had problems with his bladder in respect of which Mr Ameen had reported.
29. The judge concluded that he was satisfied from documents provided by the Polish authorities that significant efforts were made to ensure that Wolkowicz received the correct treatment for his physical condition in Poland during his time in prison. He was satisfied with the observations of the Polish Judicial Authority that there was no evidence that any penal institution had failed to provide proper medical care for Wolkowicz. Although it was not necessary for the Polish court to demonstrate that it would replicate the treatment that Wolkowicz enjoyed in the United Kingdom, it appeared that in fact Wolkowicz had been treated better in Poland than in the United Kingdom. Indeed, as we have set out above, Wolkowicz was complaining by way of judicial review of his mistreatment by Her Majesty's Prison Service in the UK.

(e) The conflicting psychiatric evidence

30. As we have set out, the District Judge heard evidence from both psychiatrists. He also had the report of Dr Rix which was directed at the issues that had arisen in the judicial review and the care plan that Wolkowicz required. In his report, Dr Rix concluded that Wolkowicz had an emotionally unstable personality disorder rather than a depressive illness. He concluded that there would be a real and imminent risk of suicide if Wolkowicz's attempts to avoid extradition failed. The report was agreed to be admissible, but the judge had to take into account the fact that he had not been cross examined.
31. The evidence of Dr Pierzchniak, set out in his report dated 28 March 2012 and in his oral evidence, was that he interviewed Wolkowicz at HMP Leeds on 23 March 2012. He reported that he had been told by Wolkowicz that he had become depressed when serving his sentence in Poland and attempted suicide. He told Dr Pierzchniak that he had cut his wrists 10 times and took an overdose four times. He had been treated at Choroszcz Psychiatric Hospital; he was then released from prison and began to undergo rehabilitation. When he was able to walk, the authorities sent him back to prison. This had happened, he said, in 1999, 2001 and 2006. He had been in 10 prisons and psychiatric hospitals in total; the facilities in Poland were 20 years behind England in treating him adequately.
32. It was the opinion of Dr Pierzchniak that Wolkowicz met the criteria for diagnosis of severe depressive episodes without psychotic symptoms. He considered that Wolkowicz would be at real and imminent risk of suicide should the decision be made to return him to Poland. That was because he presented a number of known background risk factors, because his suicidal ideas were calmly stated and appeared to have been well thought out over a period of months, if not years. Although Wolkowicz told Dr Pierzchniak that he would only complete suicide if a decision was made to extradite him to Poland, Dr Pierzchniak was so concerned about his potential for suicide that he suggested further treatment. Dr Pierzchniak's evidence to the Senior District Judge was that he was convinced his depressive illness was genuine. Although he had not seen him since March 2012, he thought that the depressive illness had not improved. He did not agree with the approach and methodology of Dr Joseph.
33. Dr Joseph's evidence, in his report and oral evidence, was that after his examination of Wolkowicz in September 2012 and a study of the medical records of his detention at HMP Leeds, he concluded that Wolkowicz did not suffer from a depressive illness. If, which he doubted, Wolkowicz was suffering from any form of psychiatric disorder, it was likely to be an emotionally unstable personality disorder, characterised by instability of mood, impulsiveness, a low tolerance to frustration and episodes of self harm. He considered that Wolkowicz was deliberately exaggerating his physical disability in order to manipulate the legal process and avoid extradition to Poland. There was evidence of manipulative behaviour in the inmate records; he had shown Dr Joseph the medication he was stockpiling to kill himself, in the knowledge that Dr Joseph would report it, just as Dr Rix had done. There was nothing which prevented his extradition to Poland from a psychiatric point of view. The medication he received in prison was available in Poland; he had already received psychiatric treatment in a psychiatric hospital in Poland. In his oral evidence he explained his disagreement with Dr Pierzchniak was the result either of an improvement in Wolkowicz's condition since March 2012 when Dr Pierzchniak had seen him or alternatively that Dr Pierzchniak may not have attached as much weight as he did to the inmate medical records. He accepted in cross examination that Wolkowicz was a suicide risk, but it was low to medium.

(f) The conclusion of the Senior District Judge

34. The judge concluded that Dr Joseph and Dr Pierzchniak both held genuine beliefs but they were irreconcilable. The judge accepted that Dr Joseph had, contrary to the submission made on behalf of Wolkowicz, conducted a mental state examination. He preferred the evidence of Dr Joseph and adopted his conclusion that Wolkowicz was not depressed. He did so because Dr Joseph had far more evidence at his disposal and had relied more on the records relating to Wolkowicz than the interview, whereas Dr Pierzchniak had relied much more on the interview; some of that account on which Dr Pierzchniak had relied was not true. He held that it was not unjust or oppressive to order his extradition to Poland.

(g) The submission on the appeal

35. It was submitted by Mr Josse QC for Wolkowicz that the finding of the Senior District Judge that he preferred the evidence of Dr Joseph to that of Dr Pierzchniak was unsustainable. In particular, Dr Joseph had been demonstrably wrong in stating that Wolkowicz was faking his physical condition; the reports of neurologists and the urologists made it clear that the symptoms were genuine.
36. We accept that some criticism can be made of Dr Joseph. He was going a little too far in saying, without qualification, that Wolkowicz was exaggerating his physical disabilities. However that did not begin to undermine the reasons given by the Senior District Judge for preferring his evidence over that of Dr Pierzchniak in relation to Wolkowicz's psychiatric condition. The reasons given by the Senior District Judge are clear and fully supported by the evidence. We are satisfied that his findings were findings of fact open to him on the evidence and which he was entitled to make.

(h) The further evidence of Dr Rix

37. Dr Rix had been asked to see Wolkowicz on 20 December 2012. As the other two appellants had had the opportunity of placing further evidence from their psychiatrists before the court, we considered it would be perceived by Wolkowicz to be unfair to reach our conclusion without affording him a similar opportunity. We received that report together with further written submissions on behalf of Wolkowicz.
38. Dr Rix's report of 21 December 2012 re-affirmed his diagnosis that Wolkowicz was suffering from an emotionally unstable personality disorder, a condition which he said was difficult to treat either in custody or in hospital. He also considered that Wolkowicz appeared to be suffering from a depressive illness or a depressive episode, taking into account the self reported symptoms of low mood, hopelessness, loss of appetite, loss of interest and loss of concentration. He had made a serious attempt to commit suicide on 18 December 2012, having stored up 25 clonazapam tablets. The future risk of self harm was high. He was under multi-professional mental health care and constant watch to prevent suicide. Dr Rix considered that he needed treatment and had written to the prison suggesting assessment for removal to hospital under s.48 of the Mental Health Act.

(i) Conclusion

39. Assuming that there was a high risk of suicide, on the basis that we should accept Dr Rix's further report as confirming the views expressed by Dr Pierzchniak, there is nothing to suggest that effective steps cannot be taken to mitigate that risk whilst he is in custody in the UK and during removal to Poland. The attempted suicide on 18 December 2012 was prevented. There is no evidence at all to impugn the ability of the Polish authorities to take similar steps. Even if we were to accept that evidence, the appeal could not therefore succeed. However, we would have had very considerable difficulty in accepting the fresh evidence as contradicting the very clear findings made by the Senior District Judge.
40. The appeal is therefore dismissed.

III Wojciech Biskup

(a) The EAWs

41. Two EAWs were issued in respect of Biskup who was born on 27 December 1973.

i) A conviction EAW was issued in the District Court in Czestochowa, Poland on 3 June 2009. It related to a conviction on 24 August 2000 by the provincial court in Czestochowa of attempted racketeering and extortion between 27 January 2000 and 1 February 2000 with others in that he attempted to coerce money from the owners of a café in Czestochowa with other persons. He was sentenced to imprisonment for one year. That warrant was certified by SOCA on 23 August 2011.

ii) On 3 October 2011 the Circuit Court in Katowice issued an accusation EAW against Biskup. The accusation warrant accused him of a number of serious offences including participation in a criminal armed organisation between November 1998 and August 1999, murder on 2 August 1999 through the use of a firearm, attempted murder through the use of a bomb in August 1999, robbery in July and August 1999, burglary in August 1998, burglary in March 1999, possession of weapons and ammunition between July 1999 and September 1999, fraud in December 1999 and fraud in numerous instances in 2000 and 2001. The warrant was certified by SOCA on 11 October 2011.

(b) The arrest of Biskup and the course of the extradition proceedings

42. On 21 October 2011 Biskup was arrested on both warrants in Bournemouth. There were a significant number of hearings between then and 6 March 2012 when the extradition hearing started before the Senior District Judge. The initial point taken on his behalf was that extradition would be oppressive due to the passage of time since the commission of the offence and that there would be a breach of Article 3 due to the risk he would be attacked by criminal gangs in a Polish prison.
43. At the hearing on 6 March 2012, after Biskup had given evidence, he appeared to be unwell. It emerged that he had been transferred to the hospital wing at Belmarsh having complained of auditory and visual hallucinations. On 19 April 2012, the court was informed that Biskup was suffering from schizophrenia and hallucinations and that a psychiatrist had been instructed to prepare a report to assess whether an issue arose under s.25 of the 2003 Act. On 17 July 2012, Biskup was assessed by Dr Pasternak, who graduated from the Jagiellonian University of Krakow in 1990 and who since 2006 had been a consultant psychiatrist in the National Health Service. On 27 July 2012 the court was provided with Dr Pasternak's report. On 6 August 2012, the Senior District Judge ordered Biskup's extradition.

(c) The decision of the Senior District Judge on passage of time

44. The Senior District Judge rejected the contention that there was a bar to extradition by reason of passage of time. Although there is no appeal on that issue, it is necessary to summarise the findings as some are relevant to the issue of mental health under s.25 of the 2003 Act which was the principal ground of the appeal. In his judgment, the Senior District Judge set out Biskup's account of what had happened. The judge found that Biskup was aware of the conviction proceedings, attended some of the hearings and then fled. His evidence was that he did so because he was fearful of serious attacks by criminals. The judge strongly doubted that evidence and found that it was far more likely that he fled either to avoid sentence or out of concern at developments in the proceedings for which the accusation EAW was issued. The judge concluded that although a long time had passed, Biskup had left Poland indefinitely. No blame had attached to the Polish authorities for not being able to locate him thereafter.

(d) The judge's decision on mental health and the risk of suicide

45. The only evidence before the judge was the report of Dr Pasternak dated 25 July 2012 which set out the history of Biskup's mental illness. He had first been diagnosed at Wandsworth at the end of February 2012 as psychotic and was given anti-psychotic drugs. The report then set out the history of his treatment in Belmarsh prison to which he had been transferred on 2 March 2012.
46. Dr Pasternak concluded that the symptoms were consistent with a form of delusional disorder. He considered that it was a condition which was chronic, exacerbated by the stress of possible extradition to Poland which in Biskup's mind was associated with a risk of being killed or hurt by people belonging to organised crime. Dr Pasternak noted that Biskup was worried about being interrogated and imprisoned in Poland, as it brought back memories of traumatic events in the past. He found it difficult to be more specific. While the stress was unresolved, Biskup's condition would remain controlled only with medication. Dr Pasternak considered that he would be at a high risk of suicide if extradited.
47. The very experienced judge concluded that for many the process of extradition was distressing and stressful. The longer the extradition proceedings continued the more stressful the process and greater the risk of self harm. It was also the general experience that those who were wanted for very serious offences not infrequently suffered from mental health difficulties and a tendency to self harm.
48. It had been accepted on behalf of Biskup that the evidence did not meet the high threshold required by s.25, but it had been contended that there was a lower test for oppression in the passage of time cases. It was far from obvious the passage of time had had any effect on Biskup's fears. He concluded that as Biskup's condition was in remission and as there was a presumption that Poland would observe Biskup's ECHR rights, Biskup could expect to receive proper psychiatric care. If there was a perceived risk of self harm or suicide, the Polish authorities could be expected to take appropriate steps to protect him.
49. Looking at all the factors in the round, the Senior District Judge was satisfied that it was not oppressive and not unfair to return him to Poland. He added:

"He faces very serious allegations. There would be no suggestion in this jurisdiction that a defendant accused of the offences which are alleged against Biskup would not face trial here and, if convicted, would not be in prison. I have full confidence in the Polish authorities' ability to care for this defendant and provide adequate treatment and protection for him."

50. The judge rejected the alternative claim under Article 3.
51. Biskup appealed to this court on 9 August 2012 on the basis that the Senior District Judge was wrong to find the extradition was not barred by passage of time and the judge was wrong in finding that extradition was not barred by reason of his mental health. The second ground was the basis on which the appeal was advanced before us, as we explain at paragraph 55 below.

(e) Further report of Dr Pasternak

52. We were provided with a further report from Dr Pasternak dated 14 December 2012. The report set out the further treatment that Biskup had received at Belmarsh between the date of Dr Pasternak's first report of 25 July 2012 and the date of his second report. It then set out Dr Pasternak's assessment of Biskup, having interviewed him in Belmarsh on 13 December 2012. He reported that Biskup showed some response to the anti-psychotic medication, but he did not think that, unless something changed in his life, Biskup would fully recover. Extradition to Poland would have a negative impact on Biskup's mental health; it would definitely contribute to his hopelessness and high levels of anxiety. Biskup was convinced his life would be threatened when extradited; he did not feel able to face being killed and that is why he considered strongly killing himself in Poland. He was determined not to self harm in the UK.
53. It was Dr Pasternak's view that the risk of self harm would be the highest immediately after extradition to Poland. He should possibly be admitted to a hospital ward for a few weeks of observation and get access to his family in Poland. There would be merit in prescribing anxiolitics and/or anti-depressants. He should also have spiritual care. Biskup believed that there was no other choice for him than to kill himself; he seemed to become indifferent to the idea, even slightly disassociated from the fact that suicide was forbidden in his faith.
54. Dr Pasternak was also asked to express a view on Biskup's ability to engage with and instruct his legal team, in particular whether he would be able to participate properly in any trial process in Poland. Dr Pasternak's view was that under stress Biskup tended to regress and become agitated and anxious. He would try to avoid being confronted with reality and passively refuse to engage with his legal team. He would avoid reading letters and require assistance of people he knew in meetings with his legal representatives. There was no doubt about his wish to contest his extradition. Dr Pasternak was not sure that Biskup would engage with solicitors in Poland in a meaningful way, especially considering his negative belief regarding his staying alive there.

(f) Submissions on the appeal

55. It was submitted that whether the position of Biskup was looked at under s.14 (passage of time) or under s.25 (unjust or oppressive by reason of his physical and mental health) or under s.21 (Article 3 or Article 8), the submission was most effectively made under s.25. There could be no doubt about the appellant's serious mental illness; he was not a malingerer or manipulating the process. The evidence of Dr Pasternak was clear and should have been accepted.

(g) Our conclusion

56. Although we accept in the light of the evidence before the Senior District Judge and the further evidence before us that Biskup has a serious mental illness, there can be no doubt that whilst in the UK his condition and the risks have been properly managed by the UK authorities. There was no evidence before us and none before the District Judge which provides any basis for contending that his condition cannot be properly managed when being transferred to Poland and by the Polish authorities when he is held by them in a custodial institution. The reports of Dr Pasternak will no doubt be supplied to the Polish authorities. The views expressed by Dr Pasternak as to his ability to instruct lawyers came nowhere near raising an issue on fitness to plead. The appeal must be dismissed.

IV Vilma Rizleriene

(a) The EAW


 


57. Vilma Rizleriene, who was born on 6 August 1971, was charged in Lithuania with murder. It was alleged:

"On 9 December 2008 between 11 a.m. and 2.30 p.m. at Vilties str. 8-22, Kelme City, Vilma Rizleriene gave birth in the bathroom to a baby girl – Gedene Rizleryte and right after the birth, while her child was helpless due to the infancy, pulled off the umbilical cord with her hands and thus bleeding from the umbilical cord, due to the developed anaemia the baby girl died on the spot within the couple of minutes; thus Vilma Rizleriene intentionally killed a preteen, helpless family member – Gedene Rizleeryte."

If found guilty she is liable to be punished by imprisonment from 8 to 20 years or imprisonment for life.

58. It appears that she broke the terms on which she had been allowed to be at liberty and came on 4 April 2010 to the United Kingdom.
59. On 15 April 2010 she was adjudged a wanted person. On 14 June 2010, an EAW was issued by the Prosecutor General of the Republic of Lithuania, the competent judicial authority in Lithuania. It alleged that she was a fugitive from justice. The EAW was certified by SOCA on 15 February 2012.
60. On 13 March 2012 Rizleriene was arrested and has been remanded in HMP Holloway since that time. On 20 July 2012 there was an extradition hearing before the then Deputy Senior District Judge, District Judge Wickham.

(b) The psychiatric evidence before Judge Wickham

61. Although Rizleriene did not give evidence before Judge Wickham, Dr Peter Pierzchniak, a consultant in forensic psychiatry, did. Prior to giving evidence he had provided to the court a report dated 18 June 2012. In that report he set out the psychiatric history that he had gleaned from an examination of Rizleriene and from a study of her medical records since her arrival in the United Kingdom on 4 April 2010. She described to him her history of admission to a psychiatric hospital in Lithuania, her treatment for depression and the medication she had been taking. It appears from her medical records that while she was in the United Kingdom prior to her arrest, a Mental Health Act assessment took place on 6 December 2010 where she appeared paranoid; she refused informal admission, but she was admitted under the powers in s.2 of the Mental Health Act 1983 to the Broadoak Unit in Liverpool. She was discharged on 26 August 2011 to a mental health hostel. On admission to HMP Holloway in March 2012, a mental state examination revealed low mood but no current suicidal ideation. She was started on her previous anti-psychotic medication and followed up by a psychiatrist.
62. In his report, Dr Pierzchniak concluded that Rizleriene met the criteria for a diagnosis of schizophrenia, thought disorder and auditory hallucinations. She also met the criteria for a diagnosis of depressive episodes. He noted that a number of her symptoms were marked and distressing and that suicidal ideas had become common. He concluded that she should be considered to present a real and imminent risk of suicide should the decision be made to return her to Lithuania. He considered she needed specialist forensic psychiatric services; were she to be extradited to Lithuania he did not think she would be able to fend for herself.
63. In his evidence to the Deputy Senior District Judge, Dr Pierzchniak said that Rizleriene had low mood and anxiety all the time, feeling hopeless and worthless and had thoughts of deliberate self harm and suicide. He told the judge that if she was extradited, her mental health state would deteriorate rapidly and she would be at a high risk of suicide. He did not believe that the quality of treatment in Lithuania would be as good as it was in the United Kingdom; she should not be held in a prison anywhere. His belief was that she should be held in a medium secure unit of a psychiatric hospital. He said that as a Lithuanian national she would not be entitled to it.
64. The Deputy Senior District Judge concluded that there was no evidence before her of attempted suicide or self harm since Rizleriene has been in the United Kingdom. The judge found that although Dr Pierzchniak was a most caring and concerned psychiatrist, he was unable to be dispassionate. He had applied his own definition of "oppression" to the defendant. After hearing his evidence, the judge concluded that further enquiries should be made as to the type of health care that would be available to Vilma Rizleriene in Lithuania if she was to be extradited.

(c) Information provided by the Ministry of Justice of Lithuania

65. That information was provided by the Department of Prisons of the Ministry of Justice in a letter to the Prosecutor General for Lithuania dated 13 August 2012. The letter set out the three levels of care available in Lithuania. At level 2, psychiatric services (and other specialist services) were available in the prison hospital. Where a patient needed specialist care, which could not be provided by the prison hospital, a patient was taken to public health care facilities and received a consultation there. Those arrested and convicted were prescribed specific treatment according to their health problems as they were diagnosed.
66. As an arrested person Rizleriene would be held in a remand prison and examined by medical specialists for her health needs. Every person who arrived in such a facility would, within the first days, be visited by psychologists who would assess the psychological state, risk related to suicidal or auto-aggressive self destructive behaviour and if necessary ad hoc psychological consultations or psychotherapy would be prescribed. Not all remand prisons had a psychiatrist, but if a person needed psychiatric care and none was available in the prison, the patient would be referred for consultation to a psychiatric unit at a hospital or another public health care facility.
67. In answer to the question as to whether she would be able to receive Olanzapine or another appropriate anti-psychotic drug, the Department of Prisons stated that those on remand and convicted received medication prescribed by medical specialists for treatment; if a particular drug was not available with a particular brand name it would be replaced with another analogous drug belonging to the same chemical group. In answer to the question as to what provisions were in place within the Lithuanian prison system for those who presented a suicide risk, the Department stated that it had a programme for the prevention of suicide and self harm. Included within the programme was the position of those diagnosed with a high risk of suicide or self harm; these were placed on a special register and a psychologist working with what was described as the Crisis Tackling Team provided recommendations as to particular steps that needed to be taken. There would be treatment available for a person suffering from schizophrenia in accordance with the prescribed processes set out in the Lithuanian law on the health care system.

(d) Decision of the District Judge

68. The Deputy Senior District Judge in her judgment of 11 September 2012 held that the report gave the assurances that were required of any Convention country. In the absence of any contradictory evidence the court would accept what it had been told by the Prison Department as being correct and reliable. She concluded that the argument under Article 3 must fail. The response of the Prison Department was sufficient to establish that there was provision for prisoners with recognised mental illnesses. The test for oppression under s.25 was set out in the authorities and it was not met. Her extradition was ordered.

Appeal to this court

69. Rizleriene appeals to this court on the basis that her extradition should have been barred by virtue of s.25. It was contended in the written submissions that the judge was wrong to find there was no credible or compelling evidence that there was a very high risk of suicide. An application was made to this court for a further psychiatric report from a new expert on 25 October 2012. Ouseley J granted an application for an updated psychiatric report from Dr Pierzchniak. That report was provided on 17 December 2012.
70. In his further report Dr Pierzchniak drew attention to the fact that Rizleriene had self harmed on 26 September 2012 but also to the fact that by 10 October 2012 the prison authorities considered her to be more stable. She had been referred to a psychiatrist on 23 October 2012 because of the self harm but by the time she saw the psychiatrist matters had improved. Dr Pierzchniak reaffirmed his diagnosis and put forward his view that Rizleriene continued to present a real and imminent risk of suicide if the decision was made to return her to Lithuania. He also suggested to the prison medical team that she should be transferred to his own hospital to increase assessment and treatment options. He concluded by expressing the view that:

"It is strongly arguable that by reason of her mental condition it would be unjust or oppressive to extradite Ms Rizleriene."

71. In Miss Nice's careful and measured submissions to the court, both orally and in writing, it was submitted that the Deputy Senior District Judge was wrong to find that the appellant did not pose a sufficiently high risk of suicide to amount to oppression. She drew attention to the fact that there was no challenge to the findings of Dr Pierzchniak. However, in her oral submissions, Miss Nice accepted in the light of the objective matters set out in Dr Pierzchniak's report that no new factor appeared to emerge.

Conclusion

72. It is clear that Rizleriene is suffering from a mental illness and that there is a significant risk of self harm and suicide. The real issue, therefore, is whether the facilities for addressing the risk and dealing with it are adequate, both during the period of time in which arrangements are made for her extradition and subsequently after her arrival in Lithuania.
73. Quite apart from the presumption in the case of a Member State of the Council of Europe, there was direct evidence in this case in relation to her treatment whilst in custody in Lithuania and of the facilities available in Lithuania. In the light of that evidence, it seems to us impossible to contend that the Deputy Senior District Judge was not entitled to reach the conclusion of fact that she reached in relation to Rizleriene and that therefore in the circumstances it was not unjust or oppressive to order her extradition.
74. Her appeal must therefore be dismissed.