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
		16 January 2013

Ruling re adjournment
1. MR JUSTICE SIMON: This is an application to adjourn, advanced by Mr Keith on behalf of the appellant, Michael Rawski; and the grounds for seeking an adjournment are that he wishes to investigate, possibly with his client and possibly with a view to raising an argument, that the appellant was classified as a dangerous prisoner and was subject to solitary confinement and constant watch when he was a prisoner in Poland. That this matter, and in particular that he was a category N prisoner, was not and should have been raised in front of the District Judge, was due, Mr Keith says, to the fact that the person representing him, who was a paralegal fluent Polish speaker, failed properly to present his case.
2. A statement that has been prepared by Giovanna Fiorentino, who is a solicitor currently employed by the previous solicitors, is to the effect that any instructions obtained by Ms Kucharska were reviewed by her. He now says that he told Ms Kucharska about the conditions of his imprisonment in Poland and his categorisation as an N prisoner. There is no evidence of that, she finds, and in the circumstances it has been necessary to come off the record.
3. Mr Keith submits that the question whether he was a category N prisoner, or would be a category N prisoner, is a material matter which the court ought to deal with, notwithstanding that there is no present evidence before the court in relation to it. In my view it does not justify an adjournment. The court will obviously hear submissions, which can put an argument on the basis of the contingency that he was a category N prisoner, or would be a category N prisoner, but in my judgment it is not proportionate, or necessary or a requirement of fairness for the matter to be adjourned so that further evidence should be put before the court.
(Counsel addresses submissions to the Court) Judgment
4. MR JUSTICE SIMON: This appeal raises an issue under section 25 of the Extradition Act 2003 whether the mental condition of the appellant is such that it would be unjust or oppressive to extradite him. The appellant is sought so that he may serve the remaining part of a sentence imposed for the offence of causing the death of a fellow prisoner by a long period of mistreatment resulting in the victim's suicide. According to the European Arrest Warrant, dated 7 June 2011, this was the second offence of mistreatment of a fellow prisoner.
5. On 29 October 2007, he was sentenced to a term of 12 years' imprisonment of which nine years, nine months and 25 days are still to be served. Senior District Judge Riddle heard evidence from the appellant and described him as an "unimpressive witness", who avoided answering direct questions, sometimes deliberately. In particular, he refused to answer questions about the offence for which he had been convicted, since he said he intended to appeal. On one of the important issues of threats to him and the sequence of events which led him to leave Poland, he was "vague and contradictory". Having heard the evidence the District Judge accepted that there are dangerous gangsters in Poland and that he might be at risk if he were returned due to the nature of the offence. However, he was not satisfied that he left Poland in fear of his life (see page 5).
6. The judge then went on to consider the central issue raised on this appeal: the appellant's suicide risk. He referred to the psychiatric report of Dr Liam Dodge, dated 7 December 2012, describing it as "thoughtful and helpful". Dr Dodge described the appellant as meeting the diagnostic criteria for mental and behavioural disorders due to multiple drug use, with an alternative diagnosis of mixed personality disorder. He did not think the appellant met the diagnostic criteria for any more severe or enduring mental illness, for example, oppressive disorder, post traumatic stress disorder, paranoid schizophrenia or delusional disorder.
7. So far as the risk of suicide was concerned, the appellant has a history of acting on suicidal ideation, including two serious attempts while in Poland. While in this country at HMP Wandsworth he has made one less serious attempt, but has continued to state suicidal intent. Dr Dodge concluded that should he be extradited there would be a high risk of further acts based on his suicidal attempt. A "high risk" means that he is very likely to act on his suicidal ideation unless there is some form of intervention. If he is to be extradited Dr Dodge recommended that he be subject to regular monitoring procedures.
8. The appellant's legal advisers applied to adjourn the hearing before the Senior District Judge to investigate whether the appellant's condition can be properly catered for in a Polish prison system. The application was refused. As the District Judge noted:

"I refused that application. Firstly, Polish prison conditions have been examined on numerous occasions and are well-known to this court. The Polish prison system has proper medical care facilities and does, where appropriate, transfer people to hospitals and other therapeutic environments. Secondly, the conditions outlined by the expert are not, on the face of it, being treated in this country or indeed susceptible to treatment. Thirdly, the risks identified by Dr Dodge are not sufficient to justify a finding that extradition would breach this defendant's human rights, or amount to oppression."

So far as the third point is concerned, the District Judge reviewed the law by reference to the Divisional Court case of Richen Turner v United States of America [2012] EWHC 2426, and, having referred to the views of Dr Dodge, concluded as follows:

"There appears to be no severe and enduring mental illness underlying his risk of suicide. The doctor recommends that if he is to be extradited then he should be placed under regular monitoring procedures. That assessment must be passed to the prison authorities in this country and in Poland, and I expressly ask that the CPS does so. I am satisfied that Poland has appropriate measures to deal with suicide risk, and the risk of violence from other prisoners, although I recognise that no system can guarantee that the risk is removed altogether. I bear in mind that this defendant has a very substantial prison sentence still to serve for an extremely serious offence. The public interest in ensuring that the sentence is served, and that we comply with our treaty obligations, is such as to satisfy me that extradition is neither oppressive under s 25 nor in breach of Mr Rawski's human rights.

In fact as I am satisfied that extradition is compatible with the defendant's Convention rights, I must order that Mr Rawski be extradited to Poland."

9. On the appeal to this court the grounds and skeleton argument raise two issues, which have been supported today by Mr Ben Keith, to whom the court is indebted, in view of the short notice of his instructions. On the face of it the two issues are first, a reiteration of the argument that the extradition would be unjust or oppressive within the meaning of section 25, in view of his acute and ongoing mental health issues; and secondly, an argument that the conditions of solitary confinement, to which he would be subject if extradited, would breach his rights under Article 3 of the European Convention on Human Rights.
10. In relation to this latter point it is accepted that the point is "materially different" from the one relied on before the District Judge, and depends on fresh evidence as to the effect of solitary confinement, which is not only new, but presently non-existent. As I have already indicated, when refusing the adjournment the appellant says that if it is a materially different argument that was not his fault, since he had given instructions as to the previous terms of his confinement.
11. As to the first issue it is unnecessary to consider every case on the subject in the light of the summary of principles set out by Aikens LJ in Richen Turner v Government of the Unites States of America at paragraph 28. Applying these principles to the present case, and particularly propositions 3 to 7, I reach the following conclusions:

Proposition 3, there is plainly a risk of the appellant acting on his suicidal ideation. This is likely to increase if he is extradited, although the suicide risk pre-existed the threat of extradition.

Proposition 4, I am prepared to accept that his mental condition removes, or at least reduces, his capacity to resist the impulse to act on his suicidal ideation. Proposition 5, I do not accept on the present evidence that the risk of succeeding in committing suicide is sufficiently great to result in oppression "whatever steps are taken to prevent it". As already noted, the District Judge said that the CPS should pass on to the prison authorities in Poland the recommendation that he be subject to regular monitoring procedures. Perhaps somewhat anomalously the argument was raised that this itself might amount to oppression. I reject that argument.

Proposition 6, nor do I accept that there are insufficient arrangements in place in the Polish prison system to cope with the appellant's mental condition and risk of suicide. There is a presumption, which can only be displaced on cogent evidence, that a requesting state member of the European Union will be able to comply with its ECHR obligations, and that the risk of suicide in case of extradition will be no greater in one country than another.

12. This leads on to the second issue and the evidential basis for a submission based on Article 3. The principles to be applied when this court considers an appeal based on section 25 and Article 3 are well-established. First, the requested person must show that there are "substantial grounds for believing that there is a real risk of ill-treatment of the requisite degree of severity" (see R v Razgar v Secretary of State for the Home Department [2003] EWCA). Secondly, the ill-treatment must be deliberately inflicted by state agents and be such as to cause serious suffering beyond what is implicit in the nature of the sentence. Thirdly, there is a presumption that Poland will comply with its obligations under Article 3 (see, for example, most recently Krolik v Poland [2012] (Admin) court 2357).
13. The basis for the appellant's argument is that he would be held in solitary confinement if returned to Poland, both because of the nature of his conviction (ill-treatment of a fellow prisoner) and because of his ties to Polish gangsters. It is said that he would be housed in cells reserved for N status prisoners. The appellant's submission on this point is summarised in the skeleton argument at paragraph 45:

"It is submitted that there is a real risk that the Appellant will be housed in solitary confinement and subjected to additional measures that will be inhuman and degrading. Whilst it is submitted that the 'N' status regime is not inhuman per se, and elements of it may even be warranted for those viewed as dangerous, it is submitted that the reviews undertaken as to the continuation of this regime are insufficient and the effect of the regime will be magnified on someone who is already deemed to be a high suicide risk."

14. I am prepared to accept that the appellant may be held in conditions which will minimise the possibility of him harming other prisoners, as he would in most countries in similar circumstances. However, I do not accept that there is persuasive evidence that he will be subject to a particularly harsh regime, such as would be impermissible under Article 3.
15. The appellant relied on certain paragraphs of the report from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, dated July 2011. The passages relied on were set out in paragraph 43 of the appellant's skeleton argument. There are, however, a number of problems with this approach to the appeal:

(1) the passages relied are plainly selected extracts as can be seen from the passage from paragraph 91:

"That said, there appeared to be little or no structurally planned intervention on the part of the staff to attempt to provide mental or physical stimulation to prisoners".

It is clear that the passage relied on is a qualification and that the report sets out the "apparent" position. That leads to the next point:

(2) It is unclear what the Polish response has been to this report. The passages relied on are all expressions of opinion and it is uncertain whether the respondent takes issue with these points, some of them, or all of them; or whether the Polish Government has taken steps to respond to the criticism and improve matters.

(3) This is the problem with raising this sort of issue after the hearing in the Magistrate's Court where it can, and should, be considered on the basis of proper evidence. In a supplementary skeleton argument Mr Keith referred to the case of Horych v Poland [2012] application 13621/08 where he submits that it was found that the treatment of category N prisoners was in breach of Article 3. In his oral argument he refined that by saying that the court found in its decision in March 2012 that there was not a proper process for reviewing category N prisoners.

16. Again, that point expressed in that way suffers from a similar difficulty: it is unclear what the Polish response has been to the decision, whether it has taken steps to improve it, and whether the position is, as was stated by the court in that case. This again is the problem with raising this sort of issue after the hearing in the Magistrates' Court where it can, and should, be considered on the basis of proper evidence. Nor is the argument helped by the fact that the case of Horych v Poland was not actually placed before the court in support of this submission.
17. In my judgment, advancing this type of argument, without any real factual underpinning, offends against the repeated expressions of view by the Divisional Court that this type of argument must be raised in the normal course before the District Judge. The issues relied on neither individually nor cumulatively lead to the conclusion that the appeal should be allowed, and accordingly it is dismissed.
18. MR JUSTICE SIMON: Is there anything else?
19. MR KEITH: My Lord, could I have an order for taxation of the legal costs?
20. MR JUSTICE SIMON: Yes.