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
		11/05/2017

Mr Justice Holroyde :

1. On 29^th April 2016 District Judge (Magistrates' Courts) Tempia ("the DJ") ordered the extradition of the Appellant ("Mr Kowalski") to Poland. Mr Kowalski now appeals against that order, pursuant to limited leave to appeal granted by King J. I am grateful to counsel on each side for their helpful written and oral submissions.
2. Mr Kowalski was born on 27^th February 1961 and so is now aged 56. He came to the UK in March 2013. His mother Mrs Helena Kowalska ("Mrs Kowalska"), now aged 78, had arrived in the UK some years earlier. Mr Kowalski says that he lives with his mother, for whom he cares, in Acton, west London. He has a Polish partner, Ms Felner, who lives some distance away in east London, and spends some of his time with her.

The Polish proceedings and the European Arrest Warrant:

3. Mr Kowalski's extradition was sought by the Respondent, the Regional Court in Bielsko-Biala, Poland, to serve the remaining term of a prison sentence imposed upon him in 2013, and also to stand trial on criminal charges dating back to 2009. A mixed conviction and accusation warrant was issued by the Polish court on 1^st September 2015, and certified in this country by the National Crime Agency on 24^th September 2015. Mr Kowalski was arrested on 16^th November 2015, outside Ms Felner's home.
4. The conviction part of the warrant relates to 20 offences of dishonesty committed between March 1997 and March 2000, which involved fraud and/or the use of false documents to obtain loans and lease agreements in relation to machinery and equipment used in a business. These were serious offences in which Mr Kowalski played a leading role: he established and managed an organised criminal group to commit the offences, and the offences involved obtaining, or attempting to obtain, loans and leases with an aggregate value equivalent to around £1 million. The accusation part of the warrant relates to two further allegations of fraud, involving the use of forged documents in 2009 to obtain loans totalling the equivalent of about £19,000.
5. Criminal proceedings in Poland took some time. Mr Kowalski was present at the time when he was convicted of the 20 offences. Sentencing appears to have been a protracted process, because there seems to have been a procedural error which made it necessary for a further hearing before a different court. Eventually, however, the various sentences were combined, and reduced to take account of totality, by an order made on 1^st October 2013 and made final on 23^rd January 2014. The overall sentence was a term of 6 years 3 months' imprisonment. Taking into account the substantial period of time which Mr Kowalski had spent in custody during the course of the proceedings, there remains to be served a term of 2 years, 1 month and 13 days' imprisonment.
6. Mr Kowalski, as I have said, left Poland and came to the UK in March 2013. There is however no doubt that he was aware of the sentence imposed upon him. In February 2014 his Polish lawyer unsuccessfully applied to defer execution of the sentence. In late October 2014 Mr Kowalski was summoned to prison to serve the remaining term. Mr Kowalski did not comply with the summons, and the European arrest warrant was subsequently issued.

The proceedings before the District Judge:

7. Mr Kowalski made his first appearance before Westminster Magistrates' Court on 17^th November 2015. The substantive hearing before DJ Tempia took place on 4^th March 2016. Mr Kowalski was represented, and both he and his mother gave evidence. The issues raised on his behalf related to sections 21, 21A and 25 of the Extradition Act 2003, and Article 8. DJ Tempia agreed to hear the evidence but then to adjourn so that medical evidence could be served in support of Mr Kowalski's case. She gave her decision in writing on 19^th April 2016, having heard submissions about the medical evidence.
8. The evidence before DJ Tempia comprised:

i) Mr Kowalski's proof of evidence and oral evidence adopting and expanding upon that proof.

ii) Mrs Kowalska's proof of evidence and oral evidence adopting and expanding upon that proof.

iii) Ms Felner's proof of evidence.

iv) A report dated 28^th March 2016 by Dr Farhy, a consultant counselling and psychotherapeutic psychologist relating to Mrs Kowalska. Dr Farhy noted that there was no record of Mrs Kowalska having suffered any mental health problems before the extradition process began in relation to her son; she did however have a history of suffering severe personal losses during her life. He administered tests which showed her to be at the lower end of the severe range in respect of anxiety, and at the bottom end of the moderate range in respect of depression. He found her to be physically independent and mobile, but handicapped by her very limited English and her lack of support and social activity. His opinion was that if the extradition proceeded, she was bound to become more depressed and there was a "significant chance" of her developing a major depressive episode.

v) Letters dated 17^th March 2016 from Dr Dhatt, a General Practitioner, relating to both Mr Kowalski and Mrs Kowalska. Dr Dhatt described Mr Kowalski's physical problems, and said that his liver condition needed close monitoring by a specialist unit. Dr Dhatt also described Mrs Kowalska's physical problems and noted that she reported herself as being anxious and frightened. He recorded that she had told him she began to suffer anxiety when she came to the UK (which was in about 2008), and he felt she would deteriorate if she were left alone by her son's extradition.

vi) A report dated 15^th March 2016 by Dr Belinda Smith, a consultant hepatologist, relating to Mr Kowalski. She reported that treatment for Mr Kowalski's viral hepatitis C had been successfully completed, and the condition was now cleared. She did however require long-term follow up and that Mr Kowalski should be monitored (with blood tests and ultrasound scans) every 6 months, "ideally by a liver specialist or gastroenterologist". The reason why such monitoring was necessary was because of a very small risk – less than 2% per year – that Mr Kowalski would develop liver cancer in the future.

9. DJ Tempia summarised the medical conditions relied on in relation to Mr Kowalski as follows: he suffered from viral hepatitis C (contracted in Poland), diabetes, cirrhosis of the liver, very high blood pressure and problems with his vision. He was however able to work 6 days a week, his place of work being so close to his home that he was able to return at lunchtimes to check on his mother. He described himself as living with his mother "for the most part". He said his mother started to feel really unwell from 2013, and stated that in 2014 his Polish lawyer had "tried to get the sentence suspended due to the fact that my mum was so ill".
10. As to Mrs Kowalska's medical conditions, the evidence in summary showed that she suffered from anxiety, heart problems, a tumour on her brain, dizziness and impaired vision. She speaks little English, and is socially isolated apart from the company and support of her son, whose care she said was essential. She told DJ Tempia that Ms Felner provided some assistance at weekends, but had commitments during the week which prevented her from providing regular care for Mrs Kowalska. Although Mrs Kowalska has a grandson who also lives in the UK, his home is in Bournemouth and he has his own family to care for. Mrs Kowalska's evidence was thus to the effect that in the event of the extradition of her son, she would be "totally helpless and alone". She was not however currently receiving any counselling or therapy for her anxiety.

The decision of the District Judge:

11. In her judgment, DJ Tempia referred to the familiar decisions in Norris v Govt of USA (no 2) [2010] UKSC 9, HH v Deputy Prosecutor of the Italian Republic, Genoa [2010] UKSC 25 and Polish Judicial Authorities v Celinski [2015] EWHC 1274 (Admin). As Celinski requires, she drew up a "balance sheet" of factors relevant to the Article 8 claims of Mr Kowalski and his mother. In favour of extradition, she identified the weighty public interest in honouring extradition arrangements; the seriousness of the offending and of Mr Kowalski's role in it; the substantial period of imprisonment which remained to be served; and her finding that Mr Kowalski was a fugitive in respect of the accusation matters. In considering the factors against extradition, she treated Mr Kowalski as being a man without criminal convictions in this country, because although the evidence before her showed that he had at one stage been subject to a suspended sentence, the Respondent had provided no evidence of the details of that conviction. She referred to Mr Kowalski's health problems, but noted that the hepatitis C had now been treated and that liver function tests were now almost normal, subject to the very small risk of developing liver cancer. She noted the diabetes and high blood pressure. She noted Mrs Kowalska's evidence of being dependant on her son, and of anxiety, but observed that conflicting accounts had been given as to when that anxiety first began to affect Mrs Kowalska. She also noted the contrast between Dr Dhatt's statement that Mrs Kowalska would deteriorate if alone, and Dr Farhy's description of a sprightly old lady. She noted Dr Farhy's opinion that there would be an almost certain increase in Mrs Kowalska's depressive symptoms and decline in her mental well-being if her son were extradited, albeit that there was no mental health referral at that stage. She noted the submissions made as to delays in the Polish criminal justice system.
12. Taking all those factors into account, DJ Tempia said –

"39. I am not persuaded about where Mr Kowalski actually lives. I have a significant doubt as to whether he lives with his mother, irrespective of his evidence and hers. This is because Mrs Kowalski's evidence was her son had lived with her for the past 3 years, yet he only moved to London at the end of 2014 and in his arrest statement, DC Secombe says he attended what was believed to be Mr Kowalski's home address on 16^th November 2015 in Leyton, when he initially spoke to his wife who said Mr Kowalski was not due home from work until 8pm; he was subsequently arrested on his return.

40. Mr Kowalski is thankfully free of hepatitis C and the prognosis is his liver will improve and indeed his liver function tests are nearly normal. He is insulin diabetes dependant and has high blood pressure. I am of the view that this can be regulated in Poland as can tests on his liver.

41. Mrs Kowalska told me she is totally dependant on her son. I have no reason to disbelieve that he is her social network and assists her in her day to day life, paying bills and dealing with official problems given her lack of English, but I am not persuaded by either her evidence or that of Dr Dhatt and Dr Farhy as to the devastating consequences on her if Mr Kowalski were extradited. I have already raised my concerns as to whether he actually lives with his mother and the reports of both the GP and the psychologist present her in very different lights, one saying she cannot do anything save for looking after her personal hygiene and light housework and the other saying she is independent and mobile. Her depression will increase if he is extradited and yet I have been given different information about exactly when it started, when she first arrived in the UK or her self reporting to Dr Farhy that it came to the fore when she realised her son may be returned to Poland. Of importance is the fact there is not and never has been a mental health referral to deal with her anxiety. If Mr Kowalski is extradited the state will intervene and assess her needs and give her the help she requires.

42. Ms Felner did not give evidence but I have read her proof of evidence. She refers to being unable to look after Mrs Kowalska if Mr Kowalski were extradited and her worries for Mr Kowalski's health but she does not tell me anything of her life with Mr Kowalski, if they live together, if she is financially dependent on him and that she would not be able to visit him if he returned to Poland."

13. DJ Tempia concluded that there were no very strong counterbalancing factors which would result in extradition being disproportionate under Article 8 or section 21A. She further concluded that it would not be unjust or oppressive to extradite Mr Kowalski by reason of his medical conditions. There was a presumption that the Polish authorities would provide adequate health care, and Mr Kowalski had not adduced evidence sufficient to rebut that presumption or to pass the high threshold which must be surmounted under section 25. She therefore ordered his extradition.

The grounds of appeal:

14. There are two grounds of appeal. The first, on which King J gave leave, is that DJ Tempia was wrong to find that extradition would not be an undue interference with the Article 8 rights of Mr Kowalski and his mother. The second, in respect of which King J adjourned the decision on leave until the hearing of the appeal, is that DJ Tempia was wrong to find that extradition would not be oppressive in the light of Mr Kowalski's medical condition.
15. In addition, a preliminary point arises as to the admission of further evidence on which Mr Kowalski seeks to rely. Ms Iveson relies on indications given both by King J (when granting leave at an oral hearing) and Collins J (at a subsequent hearing) as to the need for further medical evidence to be obtained. The evidence which it is sought to adduce comprises further proofs of evidence from Mr Kowalski and Mrs Kowalska, and the following medical reports:

i) Dr Dhatt: further report dated 20^th July 2016 (Mrs Kowalska).

ii) Dr Shuttleworth, a consultant psychologist: report dated 13^th October 2016 (Mrs Kowalska).

iii) Dr Darowski, a consultant in general and geriatric medicine who has the advantage of speaking Polish: reports dated 7^th November 2016 (Mr Kowalski and Mrs Kowalska), 25^th February 2017 (Mrs Kowalska) and 31^st March 2017 (Mr Kowalski).

The legislative framework and relevant principles:

16. The relevant legal principles are not in dispute between the parties. Poland is a Category 1 territory, and Part 1 of the Extradition Act 2003 accordingly applies. Both section 21 of that Act (in relation to the convictions) and section 21A (in relation to the accusations) require the court to consider whether extradition would be compatible with the Convention rights under the Human Rights Act 1998. Section 21A further requires the court to consider whether the extradition would be disproportionate: in this regard, the court must take into account only the three matters specified in section 21A(3), namely –

"(a) the seriousness of the conduct alleged to constitute the extradition offence;

(b) the likely penalty that would be imposed if D was found guilty of the extradition offence;

(c) the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D."

17. A specific bar to extradition in cases of physical or mental condition is provided by section 25 of the 2003 Act, which provides –

"(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 in respect of whom the Part 1 warrant is issued 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."

18. This appeal is brought pursuant to section 26 of the 2003 Act. By section 27, this court's powers are as follows:

"(1) On an appeal under section 26 the High Court may—

(a) allow the appeal;

(b) dismiss the appeal.

(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.

(3) The conditions are that—

(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;

(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.

(4) The conditions are that—

(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 appropriate 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.

(5) If the court allows the appeal it must—

(a) order the person's discharge;

(b) quash the order for his extradition."

19. In considering the Convention rights under Article 8 it is necessary to have regard to the rights not only of Mr Kowalski but also of Mrs Kowalska: see Beoku-Betts v SSHD [2009] 1 AC 115. In assessing whether extradition would be a disproportionate interference with those rights, the effect of the decisions of the Supreme Court in Norris and HH is that the issue is whether the interference with the Convention rights is outweighed by the public interest in extradition. It is likely that the public interest in extradition will outweigh the Article 8 rights of the requested person and any relevant member of his family unless it would result in an exceptionally severe interference with family life. That public interest always carries great weight, though the weight to be attached to it in a particular case will vary according to the nature and seriousness of the crimes of which the requested person has been convicted or stands accused. As was made clear in HH, delay since the relevant crimes were committed may both diminish the weight to be attached to that public interest and increase the impact of extradition upon family life.
20. In relation to section 25 of the 2003 Act, Ms Iveson accepts that there is a rebuttable presumption that the requesting state will provide necessary medical treatment to an extradited person whilst he is in custody. It is important to note that in Mikolajcyk v Wroclaw District Court [2010] EWHC 3503 (Admin) Ouseley J said (at para 16) that the threshold for showing that it would be oppressive to extradite someone on account of their physical condition "is necessarily a high one" and that

"It is not necessary for the requesting state to demonstrate that it will replicate the conditions which the appellant enjoys, either in prison in the United Kingdom or out of prison in the United Kingdom."

Ouseley J went on to say, at paragraph 17 –

"It is of course possible that treatment will be less satisfactory in Poland than in the United Kingdom, but the question is whether the difference in treatment would mean that extradition is oppressive. It is for the appellant to demonstrate that that is so."

21. The decision of a Divisional Court in Celinski makes it clear that on appeal, the single question for this court is whether the District Judge made the wrong decision. At paragraph 24, Lord Thomas Lord Chief Justice, said –

"Findings of fact, especially if evidence has been heard, must ordinarily be respected. In answering the question whether the district judge, in the light of those findings of fact, was wrong to decide that extradition was or was not proportionate, the focus must be on the outcome, that is on the decision itself. Although the district judge's reasons for the proportionality decision must be considered with care, errors and omissions do not of themselves necessarily show that the decision on proportionality itself was wrong."

22. In relation to the adducing of fresh evidence, and the application of section 27(4) of the 2003 Act, the principles to be applied were stated by a Divisional Court in Szombathely City Court v Fenyvesi [2009] EWHC 231 (Admin) as follows:

"32. In our judgment, evidence which was "not available at the extradition hearing" means evidence which either did not exist at the time of the extradition hearing, or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained. If it was at the party's disposal or could have been so obtained, it was available. It may on occasions be material to consider whether or when the party knew the case he had to meet. But a party taken by surprise is able to ask for an adjournment. In addition, the court needs to decide that, if the evidence had been adduced, the result would have been different resulting in the person's discharge. This is a strict test, consonant with the parliamentary intent and that of the Framework Decision, that extradition cases should be dealt with speedily and should not generally be held up by an attempt to introduce equivocal fresh evidence which was available to a diligent party at the extradition hearing."

23. The court went on, in paragraph 34, to accept that there may occasionally be cases where there may be a degree of latitude in the application of that test, in order to admit fresh evidence where a failure to do so might result in a breach of Convention rights.

The submissions:

24. Ms Iveson first challenges the decision below as being wrong on the evidence which DJ Tempia considered. She submits that DJ Tempia attached undue weight to "a small discrepancy" in the evidence as to when Mrs Kowalska first began to suffer anxiety; attached undue weight to Dr Farhy's comment at Mrs Kowalska was "sprightly", and so failed to give sufficient weight to other evidence about her physical condition; failed to give sufficient weight to Mr Kowalski's physical condition; and failed to give sufficient weight to the very substantial past delay in the Polish proceedings and the possibility of further delay following extradition. She argues that there was compelling evidence, from both Dr Farhy and Dr Dhatt, that Mrs Kowalska presently suffers significant anxiety, is vulnerable because of her social isolation and past experiences of bereavement and loss, and will probably suffer an increase in her depressive symptoms in the event of her son's extradition, with a "significant chance" of suffering a major depressive episode. There was also evidence from Dr Dhatt showing that Mr Kowalski is very unwell, notwithstanding that he has recovered from his hepatitis C and has substantially recovered his liver function. There was, argues Ms Iveson, no good reason for DJ Tempia to dismiss these serious health concerns, as in effect she did. Ms Iveson relies on the pilot judgment of the ECHR in Rutkowski v Poland (application 77287/10) as showing severe delays in the Polish criminal justice system.
25. Ms Iveson next relied heavily on the fresh evidence which she seeks to adduce. In relation to Mr Kowalski, this shows that in a number of respects his condition is not as serious as it may at one stage have seemed: the hepatitis C virus has been eradicated, liver function should continue to improve with only a very small risk of future liver cancer, his diabetes is not a problem to control, and a concern relating to a swollen testicle has now resolved. But, Ms Iveson emphasises, Dr Darowski's report shows that Mr Kowalski's eye disease – a consequence of his diabetes – has now reached the stage where laser surgery is required in order to prevent permanent damage to his vision. In addition, Mr Kowalski continues to suffer very high blood pressure which - unusually – it has not been possible to control despite multiple forms of medication. His blood pressure is so high that, in conjunction with his long history of diabetes, Mr Kowalski is, in the opinion of Dr Darowksi, "at significant risk of stroke". Continuing high blood pressure is likely to contribute to deterioration of Mr Kowalski's kidney function. There is moreover a risk of pulmonary oedema developing over the next two years. Dr Darowski goes so far as to describe it as "inhumane" to remove Mr Darowski from access to specialist treatment for his high blood pressure.
26. In relation to Mrs Kowalska, Ms Iveson relies on the further evidence of Dr Darowski as showing that Mrs Kowalska now suffers from dementia, probably in the form of fronto-temporal dementia, which is difficult to diagnose and therefore had not been noted from tests previously carried out at the GP's surgery. Dr Darowksi's opinion is that a steady decline in her condition is inevitable, and that there is likely to be a significant dementia over the next two years. In addition, Mrs Kowalska suffers from orthotic hypotension, which is likely to result in her falling. She will require assistance and eventually accommodation in a home. She is anxious and depressed because of her uncertain future. In his most recent report, Dr Darowski describes Mrs Kowalska as presently living a life dominated by anxiety.
27. I should note that Dr Darowski makes some observations about the expense to the state of accommodating and caring Mrs Kowalska if her son is extradited. His views are understandable but, with respect, are not relevant to his expert evidence.
28. Ms Iveson also relies on the evidence of Dr Shuttleworth, who goes into some detail about Mrs Kowalska's childhood experiences in occupied Poland during the Second World War. He diagnoses her as suffering from a major depressive disorder and also from post-traumatic stress disorder (the latter dating back to her childhood). In the event of her son's extradition, opines Dr Shuttleworth, there is a very good chance that her depression and anxiety will become much more intense, with serious consequences for her mental and physical health.
29. Ms Iveson invites this court to allow the appeal or, at the very least, to adjourn the extradition pursuant to section 25(3)(b) of the 2003 Act in order to enable Mr Kowalski to undergo laser eye surgery and receive treatment for his high blood pressure.
30. Ms Iveson submits that if this further evidence is taken into account, it clearly shows that DJ Tempia reached a wrong decision. She submits that the evidence was not reasonably obtainable for the hearing below, because it is in essence an updating of medical developments which have occurred, or have been diagnosed, since that hearing.
31. Mr dos Santos submits that DJ Tempia was entitled to reach the decision she did, for the reasons she gave, and that no fresh evidence should be admitted because those representing Mr Kowalski had ample opportunity – including by the adjournment after the 4^th March 2016 hearing – to present all relevant medical evidence to the court below. If the evidence be admitted, he submits that in any event it is not so clear as to have a decisive effect on the outcome of the appeal. He argues that, even if all the evidence now before this court had been before DJ Tempia, it would not have altered the decision which she reached after a careful balancing of all relevant factors.
32. Mr dos Santos submits that DJ Tempia was entitled to make the findings of fact which she did, and was correct to view the offending (both proved and alleged) as serious. He points out that DJ Tempia reached her conclusion even after giving Mr Kowalski the benefit of the doubt as to his conviction of an offence in this country. He argues that she was entitled to conclude that extradition would not be disproportionate, either under Article 8 or under section 21A. She was also entitled to reach the decision she did under section 25, and Mr Kowalski had adduced no evidence on this appeal to show that the healthcare he would receive in prison in Poland would be inadequate.

Discussion:

33. In my judgment, there is no merit in the submissions to the effect that DJ Tempia reached a wrong decision on the basis of the evidence which was before her. She clearly took into account all relevant factors. She was entitled to be sceptical about the extent to which Mr Kowalski was acting as a live-in carer for his mother. She was entitled to take the view that the conflicting accounts of the origins and timescale of Mrs Kowalska's anxiety cast some doubt on the extent to which that anxiety would be aggravated by the extradition of Mr Kowalski. She carried out the balancing act required by Celinski, rightly giving weight to the public interest in extradition, and there is no ground on which her decision could be said to be wrong. Indeed, it is really implicit in the emphasis placed on the application to adduce fresh evidence, that the case advanced by Mr Kowalski before DJ was not as strong as it is now said to be.
34. The real issue, in my view, is whether the fresh evidence should be admitted in accordance with Fenyvesi principles and whether it is decisive pursuant to section 27(4) of the 2003 Act because, if it had been adduced before DJ Tempia, she would have been required to order Mr Kowalski's discharge.
35. I initially doubted whether any of the fresh evidence could be admissible under the Fenyvesi principles. I am not persuaded that any of the medical conditions described in the further evidence, whether relating to Mr Kowalski or to his mother, were unknown at the time of the hearing before DJ Tempia. It is true that the diagnosis of fronto-temporal dementia had not at that stage been made; and I accept Ms Iveson's submission that (contrary to my initial understanding) an investigation by Mrs Kowalska's GP into a different form of dementia did not take place until 13^th May 2016. There is however no evidence as to when that investigation was first considered by the GP, and it seems wholly improbable that it was an investigation into a condition which no one had even suspected at the time the extradition order was made just two weeks earlier. I therefore reject the submission that any of the further evidence is admissible on the basis that it relates to a medical condition which could not reasonably have been raised before DJ Tempia.
36. Ms Iveson is however on stronger ground with her submissions to the effect that the further evidence updates the evidence previously before the court, and in that sense could not reasonably have been adduced below. It should not be thought that any requested person who has unsuccessfully resisted extradition on a ground which relied on medical evidence will routinely be able to appeal on the basis that further medical evidence will provide a convenient update. In the circumstances of this case, however, in particular having regard to Mrs Kowalska's age, I accept that the further reports do add important information as to recent developments in the medical conditions of both her and her son. I bear in mind moreover that the decisions of both King J and Collins J at earlier stages of this appeal gave Mr Kowalski the opportunity to obtain further medical evidence because it seemed likely to be capable of assisting the court. I also have regard to the point made at paragraph 34 of Fenyvesi to the effect that human rights considerations may sometimes necessitate a departure from the strict application of principle. For those reasons, I find that the further evidence should in principle be considered by this court. I therefore turn to consider whether it would have caused DJ Tempia to reach a different decision.
37. In relation to Mr Kowalski, the public interest in extradition is a very weighty consideration in this case. He has been convicted and sentenced for serious offences involving planned and repeated acts of dishonesty, in which he either gained or hoped to gain substantial financial reward. I see little force in the points made about delay prior to his conviction and sentence: the inescapable fact is that since 2013, Mr Kowalski has known that he is required to serve the remaining term of his prison sentence, and has been trying to avoid doing so. He has also been trying to avoid facing the further charges of which he is accused, which are themselves far from trivial, and would if proved show that his offending continued over a substantially longer period than has thus far been shown. The worsening state of health of himself and his mother, on which he relies, has to be viewed in the context that he came to this country in an attempt to escape Polish justice. He has persisted in that attempt despite knowing that his mother was likely to become more rather than less dependant upon him as she aged.
38. As to his health, I accept of course that the further evidence shows that he has a number of significant problems. I accept that the evidence shows that his very high blood pressure requires monitoring and that the combination of his diabetes, and his high blood pressure, puts him at significant risk of a stroke. But although the evidence shows that his high blood pressure has proved to be unusually resistant to medication, there is nothing in the evidence to suggest that his overall condition is so unusual that exceptional medical care is required. The combination of diabetes and high blood pressure was known to, and considered by, DJ Tempia, as was the deteriorating state of Mr Kowalski's vision consequent upon his diabetes. The medical records and reports can, and no doubt will, be made available to the Polish authorities, so that they will be fully informed as to the need for monitoring and the risk of adverse developments. There is a presumption that Poland will provide adequate medical care if Mr Kowalski is extradited, and there is nothing in the evidence before me to rebut that presumption.
39. In those circumstances, I am unable to accept the submission that the fresh evidence relating to Mr Kowalski would have caused DJ Tempia to decide that extradition would be a disproportionate interference with Mr Kowalski's Article 8 rights, or disproportionate under section 21A of the 2003 Act. Ms Iveson realistically, and correctly, accepts that if she fails in those respects, she cannot succeed in her ground of appeal based on section 25.
40. Nor am I able to accept that these proceedings should be yet further adjourned either to allow time for further medical treatment or to seek assurances from the Polish authorities that they will comply with their Convention obligations. These proceedings have already been delayed by many months, and there is no justification for any further adjournment.
41. As to Mrs Kowalska, I accept that the extradition of her son would bear very hard upon her. She has lived through some very unhappy and difficult times, and I accept that she is very anxious about what the future holds for her. Ms Iveson has made effective submissions as to the loneliness, fear and anxiety which Mrs Kowalska is likely to experience, quite apart from the potential worsening of her medical condition. But in her case also, both the social factors and the medical factors on which Ms Iveson principally relies were known to and considered by DJ Tempia. The diagnosis of dementia had not been made at the time of the hearing below, but as Mr dos Santos points out, DJ Tempia expressly referred in her judgment (at paragraph 37) to the evidence of an "almost certain increase" in Mrs Kowalska's depressive symptoms and decline in her mental well-being if her son were extradited. I accept Mr dos Santos' submission that DJ Tempia therefore foresaw a deterioration in Mrs Kowalska's condition and took into account the likelihood that she would be increasingly dependant on her son's care.
42. Although the loss of her son's care will obviously be a severe blow to her, Mrs Kowalska will not be entirely without relatives or friends in this country, and care will be provided by the state if it genuinely cannot be provided by those she knows. It is a striking feature of the case put forward on behalf of Mr Kowalski that no recent attempt appears to have been made to establish precisely what care would be provided: Mr Kowalski has instead chosen to focus on what care seemed to be available some months ago, and to assume that no account would be taken by the authorities of any worsening in his mother's condition.
43. It is very sad that Mrs Kowalska will suffer as a result of her son's past offending and protracted attempts to avoid extradition. I conclude however that the further evidence relating to Mrs Kowalska, on which reliance is now placed, would not have resulted in DJ Tempia reaching any different decision.

Conclusion:

44. It cannot in my judgment be said that DJ Tempia reached a wrong decision. She was plainly entitled to reach the decision she did on the basis of the evidence which was before her. If she had also been able to consider the further evidence which is now available, her judgment would of course have been expressed in different terms to reflect that additional evidence; but her decision would not have been different. In the end, the weight to be given to the public interest in extradition in this case outweighs the unhappy personal consequences for Mr Kowalski and his mother, and there is no evidence to show that their respective medical conditions will not receive adequate care and treatment. The arguments relating to the second ground of appeal were rightly advanced before me, and I give leave to appeal on that ground. The appeal however fails and is dismissed. Mr Kowalski's extradition must now proceed accordingly.