QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE NICOL
| Vojislav Pesut
|- and -
|Republic of Croatia
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John Jones QC (instructed by Specialist Crime and Counter-Terrorism Unit, Crown Prosecution Service ) for the Respondent
Hearing dates: 16th December 2014
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Mr Justice Nicol :
i) The true purpose for which Croatia was seeking the Appellant's return was so that the offence of which he was suspected could be investigated. Accordingly, its request was not valid for the purposes of s.70 of the Act and the District Judge should have ordered the Appellant to be discharged.
ii) Because of the lapse of time, it would now be unjust to extradite the Appellant and he should be discharged under s.82 of the Act.
iii) Either because of the lapse of time, or in any event because of his physical or mental condition, it would be oppressive to extradite the Appellant and he should be discharged under s.91 or s.82 of the Act. Mr Cooper argues that oppression would be a consequence of a combination of the Appellant's physical and mental ill health and the poor condition of the Croatian prison estate. He submits that the District Judge should have reached this conclusion on the evidence before him, but, in any event, we should come to this view on the basis of that evidence plus further evidence which he seeks leave to adduce.
The validity of the request
"(1) the Secretary of State must … issue a certificate under this section if he receives a valid request for the extradition of a person to a category 2 territory.
(3) A request for a person's extradition is valid if –
(a) it contains the statement referred to in subsection (4)…
(4) The statement is one that -
(a) the person is accused in the category 2 territory of the commission of an offence specified in the request, and
(b) the request is made with a view to his arrest and extradition to the category 2 territory for the purpose of being prosecuted for the offence."
"Extradition request … for the purpose of the handover to judiciary bodies of the Republic of Croatia in order to carry out a criminal prosecution in the proceedings before the County Court in Osijek
Due to the fact that the defendant Vojislav Pesut is unreachable to the judiciary bodies of the Republic of Croatia, and that he has been arrested on the territory of the United Kingdom of Great Britain and Northern Ireland, the extradition proves to be justified as that this shall be the only way which shall enable it to conduct criminal proceedings against the defendant mentioned herein, for the criminal offence committed on the territory of the Republic of Croatia."
"The County State Attorney's office in Vukovar filed an investigation request … from 3 May to the County Court in Vukovar, proposing to conduct an investigation against Vojislav Pesut…for a reasonable suspicion that on 3 November 1991 in Vukovar by violating the rules of international law during the war and occupation, he killed a civilian, whereby he would commit a criminal offence against humanity and international law – the war crime against civilians, which presents an offence described and punishable by Article 120 Para 1 of the Basic Criminal Code of the Republic of Croatia…Pursuant to the investigation request, the County Court in Vukovar rendered the decision on investigation and custody…because of a reasonable suspicion that on 3 November 1991 the defendant Vogislav Pesut committed a crime against humanity and international law the war crime – a war crime against civilians, by having killed Ruza Bustic Stojic with shots from an automatic rifle…"
The request then continues by noting that the County Court in Vukovar issued an order for the arrest of the Appellant on 9th June 2010 and that, on 27th January 2012, the case was transferred to the County Court in Osijek because that was the court with proper jurisdiction over the alleged offence. Copies of the County State Attorney's request and the arrest warrant of the Vukovar Court (endorsed by the Osijek Court) were attached to Croatia's request.
I have emphasised the parts of the request which Mr Cooper submits show that the true purpose of the request is to aid the investigation, not prosecution, of the Appellant.
Whether extradition would be unjust because of passage of time: s.82
Whether extradition would be oppressive?
"A person's extradition to a category 2 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have–
(a) committed the extradition offence (where he is accused of its commission)…"
By s.91 of the Act,
"(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 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."
"(1) the court has to form an overall judgment on the facts of the particular case: USA v Tollman  3 All ER 150 at  per Moses LJ. (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: Howes v HM's Advocate  SCL 341 and the cases there cited by Lord Reed in a judgment of the Inner House. (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: see Jansons v Latvia  EWHC 1845 at  and . (4) The mental condition of the person concerned 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 his extradition: Rot v District Court of Lubin, Poland  EWHC 1820 at  per Mitting J. (5) On the evidence, is the risk of that the person will succeed in committing suicide, whatever steps are taken, sufficiently great to result in a finding of oppression: ibid. (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 with the person's mental condition and the risk of suicide: ibid at . (7) There is a public interest in giving effect to treaty obligations and this is an important factor to have in mind: Norris v Government of the USA (No.2)  2 AC 487."
"I accept that VP [the Appellant] suffers from the following conditions – cirrhosis of his liver arising from alcohol abuse, oesophageal varices and gastric disease which require regular treatment. He suffers from tinnitus and wears a hearing aid in his left ear. He has previously suffered from (although not currently) encephalopathy which caused him to become confused. He suffers from post traumatic stress disorder for which he received therapy from a psychologist in 2008, which ceased when the psychologist concluded that no further useful work could be undertaken. Further treatment for the PTSD was provided by his GP until January 2014 when he began a Cognitive Behavioural Therapies Course which is ongoing."
The fresh evidence
(i) A further statement from Ms Newson and extracts from her diary for September - November 2014. She speaks of the Appellant putting a knife to his throat in January 2014. She persuaded him to put the knife down. In August 2014, the Appellant again took a knife and drew it across his arms, stomach and throat but asked Ms Newson to take the knives away from him. In November he come home in a black mood, could not find a knife, but started to stab himself with a fork. He tried to cut his wrists with a small knife and made some deep scratches. She called the police. He apparently still works, though Ms Newson's diary records numerous absences because of ill health due, mainly to his consumption of alcohol.
(ii) A series of letters dated 19th November 2014 from Dr Sarah Clark, Consultant Physician and Hepatologist at St George's Hospital. She confirms that the Appellant has chronic liver disease secondary to alcohol. He was admitted to hospital three times in 2014. The first two were due to acute alcohol intoxication and the third related to alcohol withdrawal. The last was on 27th October 2014. He was discharged on 6th November having undergone detoxification, but had since drunk further alcohol. She comments that his health is extremely fragile and any stress to his liver such as infection could result in further decompensation of his liver disease. In a further email of 20th November 2014 Dr Clark comments on the report of Ms Horvat (see below). The discharge summary from the hospital dated 6th November 2014 said that the hospital psychiatry team felt that the current risk of suicide was low but likely to increase if he continued to drink alcohol.
(iii) A report from Dr David Baird, a consultant in forensic psychiatry, dated 24th October 2014. He diagnosed the Appellant as suffering from PTSD, alcohol dependence syndrome and moderate depressive disorder. Dr Baird considered that this combination placed the Appellant in an elevated risk category as regards self-harm and suicide, particularly if a decision should be made to extradite him. He also considered that the Appellant's capacity to resist the impulse to commit suicide was removed as a result of his mental condition and that the risk of suicide would greatly increase if he should be placed in custody or be extradited. He recommended that the Appellant be prescribed anti-depressants (which he was). He has also been seen regularly by the Merton Drug and Alcohol Recovery Team. Dr Belea, a consultant in addiction psychiatry, of that team has provided reports in which the doctor says that the Appellant is at high risk of suicide especially if the outcome of the court case is unfavourable.
(iv) A further report from Dr Forrester dated 14th December 2014 said that he considered the Appellant's depression now ranked as 'severe' and he was at 'high risk of completed suicide'. He suffered recurrent episodes of confusion during which he lacked the mental capacity to resist an impulse to commit suicide should one then arise. He needed a comprehensive package of clinical care to assist in preventing a deterioration in his overall condition.
"1) The apparent lack of medical care with the Croatian prisons and in particular no specialist expertise in gastroenterology/hepatology in the prison hospital.
2) Access to medical care: patients with liver disease can decompensate very quickly and develop problems related to encephalopathy (confusion) and ascites (intra-abdominal fluid) without any obvious precipitant. If either happens it is imperative that a medical assessment and treatment are undertaken very expediently to prevent on-going deterioration and I did not have confidence on reading the report that there would be the medical personnel on hand to recognise if these events were happening or that access to appropriate medical care would be available.
3) Due to Mr Pesut's underlying liver disease he is effectively immunocompromised and there is a risk of decompensation of his liver disease if he is exposed to infection, which the over-crowding and poor hygiene in a Croatian prison put him at risk of.
4) It is vitally important that patients with cirrhosis receive adequate nutrition as they are catabolic: poor nutritional intake increases susceptibility to infection and subsequent decompensation.
5) Mr Pesut requires a six monthly ultrasound scan of the liver and blood tests including an alpha fetaprotein for hepatoma development. It is important that this occurs since if detected early there is potentially a curative treatment for hepatoma. Again from reading the report I am not sure that this will happen."
The fresh evidence
"(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;
(b) the issue or evidence would have resulted in the judge deciding a question before him at the extradition hearing differently;
(c) if he had decided the question in that way, he would have been required to order the person's discharge."
Lord Justice Aikens: