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
		21/06/2013

Mr Justice Foskett:

1. Extradition of the appellant is sought by the judicial authority in Hungary on a conviction warrant issued on 20 July 2011 and certified by the Serious Organised Crime Agency on 12 April 2012. The purpose of the warrant is to secure the appellant's return to Hungary to serve a sentence of 14 months imprisonment imposed on 29 March 2010 for three offences of fraud committed in December 2005. The appellant was interviewed on three occasions in September and October 2006 and January 2007 in relation to those matters.
2. Although the appellant sought to suggest in the court below that he did not know about the criminal proceedings taken against him, District Judge Snow found that he did, but deliberately absented himself from those proceedings and that, by leaving Hungary in 2008, he became a fugitive from justice. He does not seek to appeal those findings. I should, perhaps, record what the District Judge said about this aspect of the case and his views on the appellant's credibility:

"23. I found [the appellant's] evidence to lack credibility. I am satisfied that he dishonestly changed his account of knowledge of the proceedings, in an attempt to deal with the further information provided by the [judicial authority]. His evidence before me was evasive.

24. I am satisfied so that I am sure that he was interviewed on a number of occasions by the police as a suspect, that he was aware of his prosecution and the requirement to notify the authorities of his new address within three days of any change. I am satisfied so that I am sure that the [requested person] is a fugitive.

25. The [requested person] has been sentenced to four terms of imprisonment in 2004 and 2005. He is clearly familiar with the legal procedures in Hungary. In addition, as set out above he had been through a number of stages of the criminal process in connection with the offences detailed in this EAW. He left Hungary in the knowledge of those ongoing proceedings. If I had not found him to be a classic fugitive … I would have found him to be a fugitive as defined by Teare J in Slovac Republic v Zigmund [2009] EWHC 922 (Admin)."

3. He does, however, seek to appeal against the District Judge's conclusion that there was nothing to prevent his extradition for the purpose of serving the sentence. The District Judge gave a detailed written ruling on 17 May, running to some 17 pages, and citing many of the relevant authorities, when rejecting the varying bases upon which the appellant sought to challenge his extradition, The appellant had the advantage of being represented before the District Judge by Miss Mary Westcott, who also appeared for him on this appeal. The substantive hearings were on 17 December 2012 and 3 April 2013.
4. The appellant took an overdose of anti-depressant medication and alcohol on or around 7 April 2013 which resulted in the District Judge postponing the giving of his decision from the intended date of 10 April until 17 May. The appellant's mental health condition and the risk of suicide to which it gives rise lie substantially at the heart of the case now advanced on his behalf.
5. I will endeavour to summarise the position in relation to those matters shortly, largely taken from the findings of the District Judge. Anyone who has involvement in this field will know that the threat of suicide is a not unfamiliar scenario in the kind of situation arising in this case. It is, of course, important to consider the circumstances of each case to examine the seriousness of the threat as one of the factors to consider. I will return to the approach to this issue shortly.
6. The District Judge had the benefit of a report on the appellant from a consultant psychiatrist, Dr P. N. Mahadun who himself had access to the appellant's medical records. Miss Westcott emphasises understandably that there is clear evidence of suicidal tendencies before the appellant was arrested for the matters that are now before the court for consideration. Dr Mahadun's report was dated 9 November 2012 and based upon an interview with the appellant on 19 October 2012. Dr Mahadun addressed this issue at paragraph 10.6 which reads as follows:

"He had attempted suicide much before the extradition became an issue. The first suicide attempt when he stood in a railway track happened 18 months ago. The attempted hanging happened in October last year. The recent reported suicide attempt which was not independently verified appeared to have happened after the extradition became an issue. The suicidal thought he has appears to be independent of the extradition matter and a symptom of his depression. Any adversity such as extradition will increase the risk of suicide and that will make a causal link to the risk of suicide."

7. Against that background, and the background of other evidence, the District Judge made the following evidential findings:

"… I am satisfied that:

Prior to his arrest on this EAW he had made three suicide attempts.

Those attempts have resulted from his mixed anxiety and depressive disorder. That condition arose from a combination of the injury to his eye, his inability to work, feelings of hopelessness and helplessness, separation from his wife and son in Hungary, the threat of his extradition and imprisonment in Hungary.

His risk of suicide is high.

His condition is managed in the community where he lives alone.

His condition can be managed through a General Practitioner/Psychiatrist and psychological support through counselling and cognitive development. His current dosage of medication is a low one. He is not currently receiving psychological treatment. His condition is not helped by his excess use of alcohol.

Dr Mahadun … is of the opinion that [his] condition can be managed.

Dr Mahadun is of the view that extradition and imprisonment are "serious events, which could cause a deterioration in [his] mental health and that could lead to an increase in his risk of suicide from high to very high". I accept that this assessment is correct.

[He] will receive the necessary psychiatric treatment in Hungary."

8. The District Judge went on to draw the following conclusions:

"I am satisfied that the risk of suicide arises from [his] pre-existing psychiatric disorder. That pre-existing risk will increase because of the prospect of extradition.

I am satisfied that the risk of suicide is substantial and that his mental condition removes his capacity to resist the impulse to commit suicide.

I am not satisfied that [he] will succeed in committing suicide whatever steps are taken."

9. Miss Westcott places particular emphasis on the first two of the foregoing conclusions because of the approach of the Divisional Court (with different constitutions) in Turner v Government of USA [2012] EWHC 2426 (Admin) and Polish Judicial Authority v Wolkowicz [2013] EWHC 102 (Admin). The relevant passages from the judgments in those cases are frequently cited and I will not extend this judgment by repeating them. However, it was accepted that one of the factors for the court to consider in this kind of situation is whether there is a "substantial risk" that the proposed extraditee will commit suicide and whether his mental condition is such as to remove his capacity to resist his impulse to do so. Only then can the makings of a case that extradition would be oppressive be made out. Even then other factors fall to be considered, one of which is whether the risk of the proposed extraditee succeeding in committing suicide, whatever steps are taken, is so great as to result in a finding of oppression.
10. Although, as I have said, Miss Westcott supports and relies upon the first two propositions, she challenges the correctness of the District Judge's approach in the third proposition to which I have referred. She submits that the District Judge set the bar too high by, as she would suggest, concluding that it was necessary to form the view that the appellant will commit suicide whatever steps are taken before a finding of oppression can be made, whereas the issue, as articulated in the cases to which I have referred, is whether the risk of completed suicide, whatever steps are taken, is sufficiently great to make extradition oppressive. She contends that the evidence in the present case is sufficient to justify that conclusion.
11. The distinction between attempting to commit suicide and actually doing so is, of course, brought into relief by the propositions to which I have already referred. The District Judge clearly concluded, as the evidence suggested, that there was (and doubtless still is) a substantial risk that the appellant will, if the opportunity presents itself, attempt to commit suicide. The essential question, however, is whether the risk of a successful attempt, no matter what preventative steps are taken, is sufficiently great to result in the conclusion that it would be oppressive to extradite him.
12. Whilst the precise choice of words by the District Judge may not fully have conveyed this analysis, I am quite sure that that is what he intended when the three propositions to which I have referred are put together. Given his conclusion, which is supported by the evidence of Dr Mahadun, that the appellant's condition can be managed with appropriate treatment, the third proposition is entirely correct as stated, but equally entirely correct if re-formulated by reference to the level of risk of a completed suicide.
13. That conclusion is one which is capable of being arrived at irrespective of the external mechanisms put in place to prevent any attempt at suicide being successful. Miss Westcott drew the attention of the District Judge, as she has to me, to reports concerning the quality of treatment and supervision that the appellant might receive if extradited to Hungary. Before referring to that material briefly, it is, perhaps, worth emphasising the word "might" in that last sentence. With proper advanced warning of the difficulties that the appellant's management might present once in the hands of the Hungarian authorities, it is surely much less likely that he will slip through any "system net" there may be in Hungary than might otherwise be the case, if indeed such is the general case. I will return to this aspect later.
14. The parameters within which considerations relating to the quality of measures to prevent suicide in the requesting state are to be evaluated by this court were set out with clarity by Sir John Thomas, President of the Queen's Bench Division, in Wolkowicz at paragraph 10 of the judgment of the court. They were set out in full by the District Judge in his ruling. They are by now well known. Again, I will not extend this judgment by setting them out in full. There is, in broad terms, a presumption that a receiving state within the EU will discharge its responsibilities in this regard which is to be relied upon by the domestic courts in the UK in the absence of strong evidence to the contrary. The District Judge concluded that the appellant had failed to rebut the presumption that Hungary will discharge its responsibilities in this regard.
15. Miss Westcott criticises that conclusion in the context of the District Judge's ruling as a whole because, she contends, the District Judge conducted no examination of the material about the situation in Hungary that had been placed before him.
16. A fair amount of material had been placed before him – as indeed has been placed before me, with some additional material that has emerged recently. It would have been a very extensive ruling if the District Judge had sought to review all that material. That comment must not be taken as any criticism of the placing of such material before the court: a conscientious approach to its task may require consideration of such material in an appropriate case and I do not suggest that this is not an appropriate case. However, it is an obvious point that a court can consider conscientiously the implications of substantial material without citing from it extensively. I have no reason to suppose that the District Judge did not take it all into account. He did endeavour to place this kind of material in context by referring to what Calvert-Smith J said in Balsevics v Rezekene Court (Latvia) [2012] EWHC 8113 at paragraph 16 which was to the effect that in all countries, including this country, inspection regimes will identify weaknesses in custodial settings which ought to be improved. Reports of this nature have to be looked at in that context.
17. I too do not intend to quote extensively from the material placed before me. However, in deference to Miss Westcott's arguments I must make some reference to it.
18. There is a lengthy report from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ("CPT") reflecting on investigations carried out in March and April 2009 and an equally lengthy response from the Hungarian Government dated 8 June 2010. Adverse comments are undoubtedly made concerning issues of overcrowding in prisons generally, that prison hospitals were unsatisfactory and that there was a significant lack of qualified medical staff. Miss Westcott draws attention, in particular, to critical comments made about the Judicial and Observation Psychiatric Institute (known as the 'IMEI'). The IMEI is constituted by a building or series of buildings within the boundaries of Budapest Prison and constitutes the principal (and perhaps the only) forensic psychiatric institution in Hungary. The need for its replacement elsewhere has been recognised for some time bearing in mind, in particular, the presence of bars and armed guards which, according to the CPT report, give rise to an oppressive physical environment and not a therapeutic environment. The report said this:

"The CPT reiterates its view that it would be highly desirable for the IMEI to be re-located; this would help to ensure that a medical, rather than a penal, ethos prevails. The Committee urges the Hungarian authorities to find a solution as a matter of priority."

19. The government response to this was as follows:

"… The construction of a new forensic psychiatric institution has been on the agenda for several years .… Consequently, there is not any possibility for major state of repair of the building."

20. The CPT report also said that custodial staff working in the building the investigating team visited needed specific training in working with psychiatric patients.
21. The government response appears to accept these criticisms, but in respect of the IMEI the point is made that most prisoners who are received into this institution only remain there for a relatively short time.
22. As indicated, the CPT report related to the situation as it presented itself in 2009. Miss Westcott draws attention to a report prepared by the Parliamentary Commissioner for Civil Rights for the year 2011 in which criticisms of what appears to be the IMEI are made with the assertion that the "still usable hospital wards are overcrowded". Another document emanating from the office of the same Commissioner contains the following paragraph:

"The condition of the IMEI building has greatly decayed. No additional nurses can be employed due to the freeze of employment. It is a grave problem that the age of psychiatrists working there is between 70 and 75 years and their replacement is inadequate. The placement of persons with mental or physical impairment does not meet the stipulations of the UN Convention on the rights of persons with disabilities; the building is not all free of obstacles and additional activities of therapy and others promoting rehabilitation should be arranged for besides the one or two special circles. The Ombudsman has found that the placement of patients undergoing psychiatric treatment and those sent there for treatment gravely violates their right to human dignity. Therefore, he pressed for the creation of the conditions of IMEI for a modern operation within a foreseeable time and that the transcript of the institution under the supervision of the Minister of Health should be considered."

23. From other material it appears that the IMEI will be re-located as from December 2013.
24. In a report not available at the time of the hearing before the District Judge, the 'US State Department Human Rights Report on Hungary 2012' repeats concerns about overcrowding (said to be running at the rate of 137% at present) and inadequate facilities and says the following about mental health care within the custodial setting:

"The ombudsman handles prison complaints in general and conducts ex officio inquiries but has no authority to act on behalf of prisoners. During the year the ombudsman released reports on the conditions of four youth detention centers … and five prisons …. The ombudsman assessed the conditions at four prisons for adult detainees as inhumane and humiliating due to the small size of cells and the separation of toilets with curtains instead of walls. The ombudsman also criticized the lack of psychologists and psychiatrists in several facilities."

25. This report also says this about the psychiatric treatment available for prisoners in this way:

"NGOs continued to complain about the lack of independent oversight of government-run long-term care institutions for persons with mental disabilities. According to the MDAC, 25,000 persons with disabilities were living in long-term care psychiatric and social care institutions. On October 15, the ombudsman released a report on the accommodation and care of psychiatric patients in the Forensic Psychiatric Mental Institute (FPMI). The FPMI is the only institute where forced medical treatment ordered by a court can be carried out and where detainees with psychiatric or neurological problems are transferred from penitentiary institutions. The ombudsman's report concluded that the present circumstances constituted a violation of patients' rights to human dignity and to health."

26. In a recent "briefing paper" for the CPT (dated 28 March 2013) the Hungarian Helsinki Committee made the following observations about the IMEI:

"The Commissioner for Fundamental Rights also paid a visit to the IMEI; his concerns were articulated in a report dated 11 October 2012. Beyond observing the bad physical conditions the Commissioner requested the Minister of Public Administration and Justice to resolve the hiring freeze of employees in order to increase the number of healthcare staff at the institution. The Commissioner also criticized the placement of patients; found highly problematic that 10-19 patients with different psychiatric disorders are squeezed into one hospital room.

…

Detainees in the IMEI are forced to take psychiatric medication, and the medication – as unofficial sources and NGO-monitoring experiences suggest — is claimed to be old-fashioned medication which has more severe side effects than more modern medications. The HHC brought a lawsuit on behalf of a detainee who was unlawfully medicated. In June 2012 the first instance court established the violation of the detainee's inherent personal rights and obliged the IMEI to pay HUF 5 million as non-pecuniary damages because the IMEI staff subjected him to the so called "chemical straitjacket": the indiscriminate usage of multiple anti-psychotic drugs.

The unofficial responses received from prison staff and psychologists only reinforce the HHC's experiences in interacting with detainees with psycho-social disabilities who were placed in other detention facilities after their medication was determined in the IMEI. The HHC has experienced numerous times that detainees arriving from the IMEI, where they supposed to receive the appropriate medication or their medication was supervised, cannot communicate, fall asleep during discussion and are addicted to medication."

27. If I understand the position correctly, that briefing paper has not been responded to by the Hungarian Government, but Miss Westcott says that it, together with the other material to which I have referred briefly, suggests that there are systemic problems with providing adequate medical healthcare and secure, stable conditions of detention in the Hungarian prison estate. She does not go so far as to suggest that there is a breach of Article 3 of the ECHR, but says that the conditions evidenced by these reports must be taken into account in an appropriate case (and this case is one) in relation to the questions that arise under section 25 and by reference to Article 8.
28. As presented, of course, the material to which I have referred does not suggest a happy or satisfactory picture. However, if the concern is in connection with the facilities within the IMEI, it does have to be said that that institution is only one part of the system and it is not wholly clear that the appellant would indeed be housed there during his sentence because, as Mr Stansfeld rightly observes, the evidence suggests (a) that the IMEI is principally designed for those undergoing treatment under a court order and (b) that those who may have attempted suicide undergo treatment there for a relatively short period. That, of course, is not an answer to the question of whether there can be sufficient confidence that the treatment that the appellant requires (which is both medication and psychological counselling) will be provided given some of the criticisms made from the other sources to which I have referred. However, this very issue has been raised with the authorities in Hungary specifically in the context of the appellant's case and in a letter dated 28 November 2012 it is said that the appellant would be provided with the necessary psychiatric therapy and medicines. The District Judge recorded that in his judgment.
29. Is the picture thus created such that I should conclude that someone such as the appellant, who displays a high risk of attempting suicide, cannot be managed safely or securely within the Hungarian prison estate during what, in the scale of things, is a relatively short sentence? Whilst inevitably the material to which I have referred raises concerns, I do not think that the presumption that ordinarily arises has been rebutted by evidence to the standard referred to in the case of Krolik v Regional Court in Czestochowa, Poland & Others [2013] 1 WLR 490, but, more particularly, any concerns there may be in this particular case about the capacity of the Hungarian prison estate to respond to the difficulties that the appellant may present can be met by the prior warning that can, and by virtue of the order I propose to make, will be given to the Hungarian authorities about those difficulties. I will return to this in paragraphs 35-38 below.
30. Although, as will be apparent, I have received some additional evidence over that which the District Judge received (which was not available at the time he considered the matter), I agree with his assessment that the general presumption to which I have referred has not been overcome in this case.
31. It is clear from the appellant's medical records that there have been some difficulties in his accessing the psychological help that he requires in this country because of the language barrier and Mr Stansfeld does make a perfectly fair point that that barrier will not exist in Hungary provided that the appropriate counselling is available. Fortunately, after some inappropriate treatment within the prison system in the UK, a satisfactory medication regime has now been established and the Hungarian authorities can be alerted to what is perceived here to be an appropriate pattern of medication.
32. For my part, therefore, I do not see the basis for concluding that it would be oppressive for the appellant to be extradited to Hungary. The threshold for establishing that is high and, notwithstanding Miss Westcott's persuasive submissions, I do not consider that the threshold has been crossed.
33. Miss Westcott has also submitted that to extradite the appellant would amount to a disproportionate interference with his Article 8 rights. A large part of that submission depends upon the assessed level of suicide risk measured against the facilities available to deal with it in Hungary, but also she draws attention to the fact that the offences themselves were committed some considerable time ago and that they were relatively low level frauds. They were not, she reminded me, sophisticated drug smuggling offences that occurred in the case of HH. She also said that during the delay between the commission of the offences and the issue of the warrant the appellant's mental illness worsened. She says that he is now settled in the UK, where his sister also lives, and that he has retained his good character whilst in the UK.
34. There is some force in each of these matters, but they do not, in my judgment, add up collectively to anything sufficiently weighty to overcome the public interest in maintaining a proper and effective extradition system.
35. For those reasons, the appeal will be dismissed. However, I propose directing that the order dismissing the appeal shall be stayed for 21 days from today so that –

i) An urgent transcript of this judgment can be obtained at the public expense, to be made part of a dossier to be sent to the Hungarian authorities before the appellant's extradition takes place.

ii) Both the appellant's advisers and the respondent to this appeal may furnish to the Hungarian authorities any further material in that dossier that, in their opinion, touches upon treatment and supervision that may be required to reduce the risk of successful suicide when the appellant is received in the Hungarian prison estate. What that material includes will be a matter for them, but Dr Mahadun's report is an obvious example of something to be supplied, plus any report from the prison medical service. Another helpful report would be that of Dr Paul Reed whose discharge summary, following the appellant's hospitalisation after his suicide attempt, is also helpful in relation to the medication required. The prison medical service will be able to indicate the current (satisfactory) medication regime.

36. It may, of course, be sensible to have translations of these documents prepared.
37. I will give permission to either party to apply to me in writing on 48 hours written notice to the other party in connection with the terms of the stay. I make it absolutely plain that I expect the time limit of 21 days to be observed strictly and I shall require extremely strong grounds for extending the period: it would only be if some important document was quite unavoidably delayed.
38. I should say that it may well be that co-operation between the prison authorities in the UK and in Hungary concerning the exchange of information about an extraditee takes place as a matter of course and the order I propose is not intended to replace that. However, the additional delay in effecting extradition in this case is simply to ensure that, in a potentially difficult case, all the relevant information is to hand in a timely fashion. A report commissioned on behalf of the extraditee (as Dr Mahadun's report was in this case) may not, as a matter of course, find its way into that exchange of information and, accordingly, the opportunity to include it in a dossier prepared by the prison authorities is provided by the course I propose.
39. I am grateful to both Counsel for their assistance.