British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Pesut v Republic of Croatia [2015] EWHC 46 (Admin) (22 January 2015)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/46.html
Cite as: [2015] EWHC 46 (Admin)
[New search] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
MR JUSTICE NICOL
____________________
| Vojislav Pesut |
Appellant |
|
| - and - |
||
| Republic of Croatia |
Respondent |
____________________
John Jones QC (instructed by Specialist Crime and Counter-Terrorism Unit, Crown Prosecution Service ) for the Respondent
Hearing dates: 16th December 2014
____________________
Crown Copyright ©
- On 5th December 2012 the Republic of Croatia requested the extradition of the Appellant to face prosecution for a war crime, namely the shooting dead of a civilian in Vukovar on 3rd November 1991. Croatia became a member of the European Union on 1st July 2013 and, since then, is a category 1 territory for the purposes of the Extradition Act 2003 ('the Act') but, because it had not achieved that status at the time of the request, the matter had to proceed under Part 2 of the Act. The Secretary of State certified the request on 23rd January 2013. The Appellant was arrested on 5th February 2013. The extradition hearing took place on 10th January 2014. District Judge Snow sent the case to the Secretary of State on 17th January 2014. The Appellant now appeals that decision pursuant to s.103 of the Act.
- The Secretary of State ordered the Appellant's extradition on 3rd March 2014. There is a further right of appeal against such a decision, but the Appellant has chosen not to exercise it. Consequently, it is only the District Judge's decision which we have to consider.
- On the Appellant's behalf, Mr Cooper advances in effect three grounds of appeal:
- Section 70 of the Act (so far as is material) provides:
- This requirement is therefore closely analogous to that which applies under Part 1 for the extradition of a person to a category 1 territory under an accusation European Arrest Warrant – see s.2(3) of the Act. I accept that the principles developed for that purpose are broadly applicable to the requirement under s.70(4). Those principles are usefully summarised in the well known case of Asztaslos v Szekszard City Court Hungary [2010] EWHC 237 (Admin) [2011] WLR 252 especially [38].
- In this case the request from the Croatian Ministry of Justice began,
- Mr Cooper submits that these apparently clear statements that the Appellant is wanted for the purpose of a prosecution are rendered equivocal by other parts of the request. Thus, the request records that
- The District Judge was taken by Mr Jones who then, as now, represented Croatia, to the Divisional Court's decision in Assange v Sweden [2011] EWHC 2849 (Admin) in which it was said that the further questioning of a suspect was not inconsistent with the suspect being an "accused" for the purposes of s.2(3)(a) or wanted for the purposes of a prosecution - see [150] – [151]. The District Judge accepted Mr Jones' submissions that, when looked at in the necessarily cosmopolitan manner, the request was unequivocally for the return of the Appellant for the purposes of a prosecution.
- It is fair to say that, while Mr Cooper maintained this ground of appeal, it was not at the forefront of his submissions. It is sufficient to say that I agree with Mr Jones and the District Judge. The request does state that the Appellant is wanted for the purposes of prosecution. It complies with s.70 of the Act. It is a valid request.
- In considering this potential bar to extradition the court is concerned with the risk of prejudice in the conduct of the trial itself – see Kakis v Cyprus [1978] 1 WLR 779.
- The offence which gives rise to the request was committed 22 years before the decision of the District Judge and took place now 23 years ago. Mr Cooper submits that the passage of time will inevitably make it difficult for the Appellant to defend himself and to answer detailed questions about what happened that long ago. The problems for the defence will be the more acute because Vukovar has experienced considerable population changes since the events of 1991. The expert evidence of Professor Brad Blitz, Professor of International Politics at Middlesex University, was that Vukovar had lost 30% of its population by 2001 and there had been a further decline since then. Mr Cooper argued that this would inevitably hamper the Appellant in finding witnesses. The Appellant was not a fugitive and therefore the delay in bringing the matter to trial was not his fault. Furthermore, Mr Cooper argues, racial tensions in Croatia remain and make it still harder for the Appellant (who is of Serbian ethnicity) to identify witnesses on his behalf. Even if potential defence witnesses could be identified, they are likely to be reluctant to come forward to assist a Serb. In addition, the deterioration in the Appellant's health leads to him suffering periods of confusion. That, too, would pose a risk of prejudice to his trial.
- The District Judge was not persuaded by these arguments and neither am I. So far as they rely on the general passage of time, its impact on memories and the possible loss of witnesses, I consider that they are too vague to establish that the passage of time would make extradition unjust. In this country, allegations of a much greater vintage are tried despite similar objections. Greater specificity is required before the complaint can be made good that delay will make a trial unfair.
- However, there is an additional and more fundamental obstacle in the way of this ground of appeal succeeding. Croatia has for many years been a party to the European Convention on Human Rights. Although it was not a member of European Union when the request was issued, it is now and will be if and when the Appellant is tried. There is a strong but rebuttable presumption that such a state will observe its international human rights obligations (see for instance Krolik v Regional Court in Czestochowa, Poland [2013] 1 WLR 490 at [5] and Gomes v Government of Trinidad [2009] 1 WLR 1038 at [35]). These obligations would include those under Article 6 of the ECHR to accord the Appellant a fair trial. If, because of his health, the loss of witnesses or any other reason he cannot have a fair trial, we must presume that Croatia will acknowledge that and deal with the situation appropriately. The presumption is only that. It can be displaced, but the evidence must be convincing and approach an international consensus. The evidence in this case does not come close to that level.
- Accordingly, in my judgment this ground of appeal does not succeed.
- By s.82 of the Act,
- Mr Cooper contends that the Appellant's physical and mental condition is such that it would be oppressive to order his extradition. His condition has deteriorated in the time since the offence was allegedly committed and that there is no prospect of it improving so that an adjournment would serve no purpose. Consequently, he argues that the Appellant should be discharged under either or both s.82 and / or s.91.
- So far as s.91 is concerned, the effect of the authorities (with particular reference to the risk of suicide) was summarised by Aikens LJ in Richen Turner v Government of the USA [2012] EWHC 2426 (Admin) [28] as follows:
- The District Judge had the report of Dr Forrester dated 17th August 2013 as to the condition of the Appellant. The District Judge said at [19] of his decision,
- The District Judge accepted that the Appellant received valuable assistance from his partner (Ann Newson) with whom he had been together for 13 years at the time of the District Judge's judgment.
- Before the District Judge the Appellant relied on reports from Professor Blitz and Professor Caplan, Professor of International Relations at the University of Oxford, to seek to establish that the Croatian prisons were overcrowded and provided inadequate health care. However, the DJ was unimpressed with their evidence. He noted that Professor Blitz had not visited a Croatian prison since 2001 and Professor Caplan had never visited one. Neither had visited a psychiatric institution in Croatia. They relied on reports. The District Judge relied on the presumption that Croatia, as an EU State and as a party to the European Convention on Human Rights, would comply with its ECHR obligations. There was not, he considered, sufficient evidence to displace that presumption. He noted as well that the Appellant's health problems had not prevented him from undertaking the physical work required in his job as a street cleaner. He rejected the argument that the Appellant's discharge should be ordered under s.82.
- He also considered the risk of the Appellant committing suicide. He noted that Dr Forrester's report had said that there was an elevated category of suicide risk and the nature of his underlying condition was of such severity that it would remove his capacity to resist the impulse to commit suicide. Dr Forrester had added that if the Appellant's extradition was ordered he would be concerned about a "serious escalation in his level of suicide risk." The District Judge observed that he had to consider a different question, namely whether there was a substantial risk that the Appellant would commit suicide. Furthermore there was no evidence from Dr Forrester as to how recently the Appellant had tried to commit suicide or self harm. The Appellant's partner had said that the last attempt had been some years previously. Overall the District Judge was not satisfied that there was a substantial risk of suicide, nor that his underlying condition would incapacitate the Appellant from resisting any impulse to take his own life. Nor was there sufficient evidence to rebut the presumption that Croatia would discharge its responsibilities towards the Appellant.
- This falls into two categories: further and more up-to-date evidence as to the Appellant's mental and physical condition; and, secondly, a report by Lidija Horvat dated 19th September 2014. She is a Croatian lawyer and her report speaks to the conditions in Croatian prisons. There is also a report of the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ('CPT') on a visit to Croatia in September 2012. The Report was published in March 2014.
- The medical evidence can in turn be sub-divided as follows:
- Ms Horvat, as I have said, is a Croatian lawyer. She says that if the Appellant is extradited, he will be detained in Osijek prison pending trial. It was uncertain where he would serve any sentence of imprisonment if he were convicted. She acknowledges that there is a clear institutional and legal framework regarding the health protection of prisoners but she says that it is not fully implemented in Croatia. She says that there is a shortage of medical staff in the prison. In addition, the jails are overcrowded. She says also that suicide prevention is not carried out effectively because the administration treats this as an option rather than an obligation. There is a lack of psychiatrists in the prison system. She says that a large number of cases against Croatia are pending in the European Court of Human Rights in relation to prison overcrowding. Overcrowding has also been a theme of several critical reports from the Croatian People's Ombudswoman. She notes that in the report on its visit in 2012 the CPT warned of prison overcrowding, which had got worse since its previous report. In June 2014 the Croatian Constitutional Court recorded that the government had failed to implement its earlier rulings regarding inadequate prison conditions and noted that inhuman or degrading conditions could not be justified by the economic crisis or budgetary constraints. Material to the present case, the Constitutional Court noted that in December 2013, Osijek Prison was at 208% of its capacity and the Prison Hospital in Zagreb was at 107% capacity.
- I noted above that Dr Clark commented on the implications of Ms Horvat's report for the Appellant in an email of 15th December 2014. Dr Clark said that her main concerns would be:
- This Court must allow the appeal either if the District Judge ought to have decided an issue before him differently and discharged the Appellant, or, as a result of s.104(4) of the Act,
- The equivalent provision in Part 1 of the Act is in s.27(4) and (where an appeal is brought by the Judicial Authority against a district judge's order of discharge) s.29(4) of the Act. The latter was considered by this Court in the well known case of Hungary v Fenyvesi [2009] EWHC 231 (Admin). In the judgment of the Court given by Sir Anthony May, President of the Queen's Bench Division, it was said that the phrase "not available at the extradition hearing" meant more than the evidence was simply not adduced at the hearing. The party seeking to rely on it had to show that there was some good reason why it could not have been adduced before the district judge (although a strict application of this requirement might be mitigated to avoid an extradition which would be contrary to the UK's obligations under the ECHR). In any event the Court's task is to decide whether the evidence was such as would have required the district judge to decide an issue differently and order the requested person's discharge. No one has suggested that any different approach should be adopted to s.104(4) of the Act.
- In his skeleton argument dated 28th November 2014, Mr Jones did not object to the Court considering the up-to-date evidence of Ms Newson and the further medical evidence. He did submit that there was no evidence before the Court as to why Ms Horvat's report could not have been produced at the time of the hearing before the district judge. He submitted, in any case, that none of the fresh evidence would have led to a different result and, for that reason, s.104(4)(b) was not satisfied. Subsequent to the service of his skeleton, the Appellant filed a witness statement from David Siebler, a solicitor with the Appellant's solicitors. He said that a report had been sought previously from a Croatian public defender but he was very reluctant to help ("believed political/ bias reasons"). Efforts were made to find an alternative lawyer but with no success. In view of this, Mr Jones withdrew his first objection to Ms Horvat's report. However, he maintained his second i.e. that, even with all the fresh evidence, the Appellant's extradition should still be ordered and the result would not therefore be different. We agreed to consider the fresh evidence de bene esse. We said that we would rule on its admissibility in our judgment.
- In addition, if we were minded to consider the further evidence, Mr Jones sought leave to rely on the further information provided by Croatia in response to the Appellant's fresh evidence. In a letter dated 18th November 2014, the Croatian Ministry of Justice said that, as of 18th November 2014, the total capacity of the country's penal estate was 3,900 and, as of that date, the total number of prisoners was 3,907. If the Appellant were extradited he would be held initially in Osijek Prison. He would be medically examined on arrival. If necessary (for medical or psychiatric reasons) he would be transferred to the Zagreb Prison Hospital "which usually accommodates prisoners with pronounced safety measure of mandatory psychiatric measure along with a prison sentence". The letter referred as well to a loan being negotiated between Croatia and the Council of Europe Development Bank for the purpose of extending and rehabilitating Zagreb Prison. In a separate letter of 15th December 2014, the Croatian Ministry of Justice gave contact details for the head of the Zagreb Prison Hospital for the purpose of communicating the Appellant's medical history.
- The further evidence as to the Appellant's medical and psychiatric condition since the hearing before the District Judge was, obviously, not available to the Appellant and I agree that Mr Jones was right to accept that it therefore satisfied that aspect of the Fenyvesi test. The same is plainly true of the report for the 2012 visit of the CPT which was published in March 2014. The information as to the steps which the Appellant's solicitors took to obtain a report from a Croatian lawyer is more sketchy, nor does it appear as though the District Judge was asked to adjourn the extradition hearing in order to allow more time for a lawyer able and willing to provide such a report to be found. Speaking for myself, however, I would not refuse to consider this evidence on the basis that it has not been shown that it was unavailable at the time of the extradition hearing. I bear in mind particularly, the approach of Mr Jones, who did not seek its exclusion on that ground and who, despite, the relatively late service of the report of Ms Horvat, has had sufficient time to seek (and to some extent obtain) a response from the Judicial Authority. The critical issue in relation to all the fresh evidence, however, remains: does it require a different conclusion from that reached by the District Judge so that the Appellant should be discharged?
- Mr Cooper submitted that the fresh evidence showed the Appellant's condition was deteriorating. Dr Forrester now considered his depression to be severe. The Appellant also suffered from PTSD. He had made more frequent attempts at suicide and was suffering more frequent bouts of confusion which, according to Dr Forrester, disabled him from resisting the urge to commit suicide. Osijek Prison, to which the Appellant would first be sent, was significantly overcrowded and there was a risk that any transfer to the Zagreb Prison Hospital would be delayed to his detriment. The CPT criticisms showed that the Hospital was still below Article 3 standards and this evidence was sufficient to rebut the presumption that an EU country would abide by its human rights obligations. Croatia was, after all, a recent member state and initial difficulties in meeting those standards were to be expected. Domestic law as well as international norms should in theory protect the Appellant, but the decisions of the Strasbourg Court, the Ombudswoman, and the Croatian Constitutional Court (as well as the reports of the CPT) showed that theoretical rights could not be relied upon in practice.
- Mr Jones argued that the fresh evidence did not lead to a different conclusion than the District Judge had reached. Croatia took seriously the Appellant's medical and psychiatric needs and did not seek to minimise them. However, the Croatian authorities in their most recent letter had established a means of communicating his medical history to the head of the Zagreb Prison Hospital. It was to be expected (given the recent history of Croatia) that that hospital would have had ample experience of treating traumatised patients. Professors Blitz and Caplan had agreed that Zagreb Prison Hospital had satisfactory psychiatric facilities as the District Judge had noted in his judgment. As for overcrowding, Ms Horvat's figures were based on December 2013. The more recent data from Croatia showed that the total prison population had fallen from 4,346 to 3,907 which was only 7 over its maximum capacity. Even on the December 2013 figures, the Zagreb Prison Hospital was only 8 patients over its maximum limit. These figures were very far from showing that overcrowding had reached the stage of being inhuman or degrading. The test for "oppression" was somewhat lower, but not by much, and this standard was not met either.
- Furthermore, part of the Appellant's stress appeared to be due to uncertainty of the legal proceedings which would be removed once they were resolved (even if the outcome was extradition). A further significant part of his condition was related to the consumption of alcohol, but that could be controlled once he was detained in prison.
- Mr Jones argued that Ms Horvat did not claim to be an expert on prisons. Her report was not footnoted. Neither the CPT report she cited, nor the decisions of the European Court of Human Rights had made a finding of systemic failings. The individual judgments related either to prisons other than the ones where the Appellant was likely to be detained and/or concerned complaints of many years ago. In some cases, they were before Croatia joined the EU. In any event, as the recent information from Croatia showed, the authorities there were taking active steps to address the criticisms which had been made. These included reducing the prison population and making arrangements for funding for a further extension of the estate. Dr Clark's email responded to Ms Horvat's report and so had the same weaknesses. She did draw attention to the specific needs of the Appellant's management, but these would be taken into account.
- I have said that Mr Cooper advanced the Appellant's case under s.91 (oppression because of the Appellant's mental and physical condition) and s.82 (oppression because of the passage of time). Neither his grounds of appeal nor his skeleton argument relied on s.87 of the Act (extradition would be contrary to the Appellant's human rights). Nonetheless, from time to time in the course of his oral submissions, he did appear to argue that, if extradited, the Appellant would suffer inhuman or degrading treatment and so his extradition would be contrary to Article 3 of the ECHR.
- If and so far as this is pursued as an independent ground of appeal, I would reject it. As I have already said, Croatia, is a member of the EU and a party to the ECHR. There is, in those circumstances, a strong, but rebuttable, presumption that it will not infringe the Appellant's rights under the Convention. The evidence in the present case (even taking into account all the fresh evidence) does not come close to demonstrating that the presumption is rebutted in this case. The prison overcrowding figures relied on by Ms Horvat are now outdated as the figures given by Croatia for November 2014 show. There is a steady downward trend in the prison population. The CPT recorded that, at the time of its visit in December 2012, there was a total of 5,400 inmates. In December 2013, according to Ms Horvat's report, the number was 4,346. In November 2014, according to the further information from Croatia, the number was 3,907. In both 2012 and 2013 the official total capacity was 3,771. By November 2014 it was 3,900. Mr Cooper is entitled to say that the most recent information from Croatia is not broken down by specific prison. Nonetheless, it shows that Croatia is addressing the problem of overcrowding in a meaningful way. The figures for December 2013, on which Ms Horvat relied, showed the Zagreb Prison Hospital (to which, it seems, the Appellant is likely to be transferred) was only marginally over its capacity. Osijek, it is true, in December 2013 had double its official capacity. Even that, tells us insufficient, without knowing the area for each prisoner which the official capacity allowed.
- Article 3, of course, requires consideration to be given to the specific circumstances of the individual in question. It is clear from the medical and psychiatric reports which were before the District Judge and which are before us that the Appellant is in a somewhat fragile condition. However, the Croatian authorities are alert to this. They have provided a means by which his medical history can be passed to them expeditiously. There is the Zagreb Prison Hospital to which, if necessary, the Appellant can be transferred. While the facilities available there may not be ideal, I am not persuaded that they fall so far below what is required that they would constitute inhuman or degrading treatment. If and so far as the Appellant intended to rely on s.87, I would dismiss that challenge.
- I accept that the concept of "oppression" in ss.82 and 91 must imply a standard that is less demanding than that of Article 3. Were it otherwise, those provisions would be redundant since an extradition in breach of Article 3 would necessarily be barred by s.87. Nonetheless, as this Court said in Richen Turner, "a high threshold has to be reached 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."
- I am not persuaded that the Appellant has crossed that threshold in this case. Croatia has been alerted to the Appellant's physical and mental condition. It takes these seriously. A channel of communication exists for his doctors here to pass further information to those who will supervise his care in Croatia. While there were (at least in December 2012) the shortcomings in the Zagreb Prison Hospital on which the CPT commented, they are not such as to make the extradition of the Appellant "oppressive". There have been further incidents since the District Judge's decision where the Appellant has threatened to commit suicide. None have led to more than minor injuries. It is the case that the Appellant has benefited from the love, devotion and vigilance of Ms Newson. Inevitably, extradition will separate him from her care. On the other hand, while in custody the Appellant's access to alcohol will be barred and it does appear as though there is some correlation between his suicide attempts and his consumption of alcohol. It is of significance that the discharge summary dated 6th November 2014 from St George's Hospital concluded that the Appellant's current risk of suicide was low but was likely to increase if he continued to drink. Taking together the limited nature of the Appellant's previous efforts to harm himself, the preventative measures which would be likely to be taken if he is extradited (not least the prohibition on alcohol), the medical facilities which would be available for the Appellant's medical and psychiatric needs, I am not persuaded that his extradition would be "oppressive". It was not necessary for Mr Jones to demonstrate that the risk of suicide would be eliminated, but this combination of factors means in my view that the statutory threshold is not crossed.
- There is a further factor to be considered in the present case. There is an absolute prohibition on extraditing (or otherwise removing from the UK) a person to a country where there is a real risk that they would suffer treatment of a kind which is inhuman or degrading. No public interest can justify such an extradition or removal. That is not the case when considering ss.82 and 91. I have already quoted from Richen Turner v Government of the USA (above) where Aikens LJ's 7th proposition was that, "There is a public interest in giving effect to treaty obligations and this is an important factor to have in mind." (Among the numerous other authorities to the same effect, see Government of South Africa v Dewani [2013] 1 WLR 82). In the present case, we have to bear in mind, not only this general proposition (which would apply to any extradition request by a state which has such a treaty with the UK), but the particular seriousness of the charge which Croatia wishes to prosecute in this case. The Appellant is charged with killing a civilian, a crime against humanity and a war crime. Whether he is guilty of the offence will, of course, only be decided at his trial, but the extreme seriousness of the alleged offence adds considerable weight to the importance of Croatia being able to conduct that trial.
- Since the new evidence would not result in an issue before the district judge being decided differently, the condition in s.104(4)(b) is not satisfied.
- For all of these reasons, I would reject the Appellant's grounds of appeal based on ss.82 and 91.
- It follows that I would dismiss this appeal.
- I agree.
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 [2008] 3 All ER 150 at [50] 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 [2009] 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 [2009] EWHC 1845 at [24] and [29]. (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 [2010] EWHC 1820 at [13] 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 [26]. (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) [2010] 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."
Discussion
Lord Justice Aikens: