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
		20 February 2013

1. MR JUSTICE FOSKETT: The appellant's extradition is sought in order to serve a sentence of three years' custody following his conviction by a District Court in Poland on 15 September 2005. The appellant was convicted by that District Court of three offences of supplying drugs, all of which occurred in 2004. The European Arrest Warrant was issued on 13 December 2008 and certified by the Serious Organised Crime Agency on 15 November 2009. The appellant was arrested in Yeovil on 29 August 2012 and appeared before District Judge Purdy sitting at Westminster Magistrates' Court following the initial hearing, which was then adjourned. The case came before the court on a further six occasions prior to the case being heard by Senior District Judge Riddle on 11 December 2012. At that hearing the appellant sought a further adjournment in order to obtain evidence to support an argument that extradition would be oppressive pursuant to section 25 of the Extradition Act 2003. The application for the adjournment was refused and extradition was ordered, Senior District Judge Riddle finding that extradition was not barred by reason of section 25 of the Act.
2. This appeal was launched on the basis that the Senior District Judge was wrong to refuse an adjournment because the lack of report arose from particular difficulties the appellant's solicitors were having with the Legal Services Commission over the funding of the report, as set out in one of the statements of Susan Chung. I do not need to consider that as such because things have moved on, though a decision concerning adjournment is essentially a discretionary matter and I would be most reluctant to say that the refusal to grant one was wrong.
3. A psychiatric report has now been obtained from Dr Jan Falkowski, consultant psychiatrist at the Royal London Hospital. It is based on a consultation with the appellant at Her Majesty's Prison Wandsworth on 14 January. It is dated 11 February and was not received by the appellant's advisers until 15 February. Without abandoning all arguments based on Fenyvesi, Ms Westcott has sensibly taken the pragmatic position of taking the report at face value and arguing the respondent's position from that standpoint. I am content to make my decision on the basis that it has been admitted in evidence, though I make it plain that a strict application of the Fenyvesi approach would probably not permit its admission. Where a report is received talking of a potential risk of suicide, it is difficult simply to say that it will be ignored. However, that comment is no green light to the late submission of reports and it does not mean that in other cases judges will be so accommodating. One advantage of any such report being available for consideration by the District Judge in cases like this is that there is scope for the testing of the evidence, which does not ordinarily arise at the appellant stage.
4. Mr Atlee is content to argue the case on the basis that the contents of the report show that the necessary threshold for discharging the appellant exists or, alternatively, if it does not, that I should adjourn the case to enable discovery of the facilities that exist in Poland to manage the appellant's condition. The question of the relevance of potential risk of suicide has been much litigated in recent years, Poland v Wolkowicz & others, a decision of the President of the Queen's Bench Division and Mr Justice Burnett, being the most recent. I need not set out the considerations in detail. They are well known.
5. The report of Dr Falkowski shows that there is a familial history of suicide in the appellant's family, his father and grandfather having committed suicide. It is not clear whether this is substantiated from medical records or is simply the say-so of the appellant but, for present purposes, I will assume it is correct. The appellant says that he has been a regular cannabis taker for a number of years and has taken other drugs as well, though he has not, according to his account, taken those other drugs since 2009. Apparently he has no psychiatric history prior to 2009 but he believes he was hypnotised at a party in 2009 when his drink was spiked and, at some stage thereafter, he was sectioned for two to three months at a psychiatric hospital in Sheffield. According to Dr Falkowski's report, the appellant developed some suicidal ideation following his discharge and also speaks of hearing voices. It is said that the appellant believes he is suffering from schizophrenia and Dr Falkowski has confirmed that diagnosis. He has been prescribed antipsychotic medication, which has apparently helped his symptoms somewhat. He expressed the view that he would not cope with imprisonment in Poland, if returned to Poland, and, according to the words used in Dr Falkowski's report, "has decided he will kill himself if he is sent to Poland."
6. I should quote three paragraphs in particular of the report, before indicating the nature of the competing arguments. First of all paragraph 17:

"[The appellant] was well kept and established a good rapport and eye contact. His speech was normal in form and content. He was tearful and distressed during the course of the interview. He appeared depressed and dejected. He reported his mood as low. He feels anxious at times and is afraid of what will happen to him. He often fears life is not worth living and is thinking about killing himself if he is sent to Poland. He experiences auditory hallucinations in the second and third person. He believes his thoughts can be read and that people talk about him. He hears voices most days. His cognitive functioning was intact."

Moving on to paragraphs 20 and 21, they read as follows:

"[The appellant] attempted to hang himself and has cut his wrists. He has been sectioned in the past under the Mental Health Act because of his attempt to kill himself. His mood is currently low. He is worried about being returned to Poland. He feels he would not cope with returning to a prison there. He has decided that he would kill himself if he was returned to Poland. [The appellant] has made a number of serious attempts to harm himself in the past. There is significant risk that he will attempt to commit suicide again if he is returned to Poland. There is a significant history of suicide in the family. This increases the risk of his attempting suicide and there is a significant risk that he may succeed.

"[The appellant] suffers from chronic paranoid schizophrenia. The olanzapine has helped his symptoms. It is important that he continues to be prescribed antipsychotics. He is likely to continue to have symptoms for the foreseeable future."

Mr Atlee says that paragraph 20 establishes the necessary minimum, namely a substantial risk that the appellant will commit suicide, and goes on to say that it is his mental condition that will drive him to that objective. Ms Westcott submits that, on proper analysis, the report (a) does not establish a substantial risk, and (b) in any event says that it is all within his control, as paragraph 17 of the report demonstrates.

7. Given the circumstances in which the report is being received, I would be reluctant to make too many assumptions favourable to the appellant. However, taking the report at its highest in his favour, namely that there is a significant risk of an attempt at suicide, I agree with Ms Westcott that the report shows that this is this entirely within his control and is not driven by the schizophrenia from which he suffers. That schizophrenia is, in any event, at present being controlled and should continue to be controlled, providing he takes the medication.
8. The next issue is whether, if he attempts suicide, he will succeed. Again, I need not rehearse the authorities, they are clear that there is a presumption that the European Union countries have appropriate facilities to deal with those who represent a suicide risk. Since there is nothing before me to raise any question that that is so so far as Poland is concerned, I see no basis for making further enquiries. Doubtless many returned prisoners will threaten suicide and the authorities will be alive to that scenario.
9. For those reasons, briefly expressed, I propose, therefore, to dismiss the appeal. I will, however, ask Ms Westcott, via the CPS, to ensure that a copy of Dr Falkowski's report reaches the respondent judicial authority, and I imagine Mr Atlee will ensure that the Governor of Her Majesty's Prison Wandsworth also receives one.
10. Thank you both very much indeed for your assistance.