England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/02/2017

LORD JUSTICE TREACY:

Introduction

1. This is an appeal pursuant to s.26(1) of the Extradition Act 2003 against the decision of the District Judge on 25 July 2016 to order the appellant's extradition to Poland.
2. The European Arrest Warrant (EAW) was issued on 30 December 2014. The EAW is accusatory in nature. The appellant's surrender is sought for an offence of robbery which took place on 20 November 2008. The allegation is that the appellant carried out a street robbery by striking the offender on the shoulder, causing him to fall to the pavement and to lose consciousness. At that point it is alleged that the appellant stole money, with a sterling value at the time of about £425. The offence carries a maximum sentence of 12 years.
3. The appellant was never arrested or questioned. According to his witness statement, he left Poland soon after the alleged robbery, and came to this country. He was homeless for about 4 years. His mother came to this country in 2011 but was unable to find the appellant until 2012, when she found him living in a tent outside St Paul's Cathedral. Since that time the appellant has lived at various addresses with his mother, and they now share a property occupied by them since September 2015.
4. Charges were laid on 22 December 2008, but the EAW was not issued until December 2014.
5. A significant factor in this appeal is the appellant's psychiatric condition. In March 2015 the appellant attacked two women on the London Underground. He was admitted to hospital under s.2 of the Mental Health Act, and remained there for 3 months. He was then treated by the Home Treatment Team, who discharged him in September 2015.
6. The District Judge had a report dated 27 May 2016, from Dr Gary Jenkins, a consultant psychiatrist. He diagnosed the appellant as suffering from residual schizophrenia. He said that the appellant will need long term treatment with anti-psychotic medication. He was currently compliant with his medication, but if he lacked insight in the future, as has happened in the past, he would need "depot intramuscular injections". Dr Jenkins said that without the stability achieved by taking his medication and being looked after by his mother, relapse would be almost inevitable if the appellant went back to Poland alone. He was of the opinion that it would be detrimental to the appellant's health to be extradited and made plain that the taking of medication was the "lynch pin" of stability. At present he considered that the appellant functioned reasonably well under supervision. The District Judge in essence accepted Dr Jenkins' evidence.
7. That evidence has now been supplemented a report dated 16 October from Dr Ravi, the psychiatrist responsible for the appellant's care and treatment in the community. There has been no objection to the receipt of this further evidence. She reports that the appellant has attended appointments on a regular basis. The appellant has claimed compliance in taking medication. His mood and speech is normal, and there are no auditory or visual hallucinations. However, there have been some grandiose delusions as a result of which his medication has been increased. If he remains under treatment the risk of relapse is moderate to low. The appellant requires psychiatric supervision and treatment with anti-psychotic medication.
8. The reports show that the appellant had suffered from his condition for about 2 to 3 years. Dr Ravi described it as a chronic, severe and enduring mental illness, with a diagnosis of paranoid schizophrenia.
9. We have been invited to receive in evidence a transcript of the judge's sentencing remarks, at Blackfriars Crown Court on 16 March 2016. On that occasion the appellant was sentenced for the assault upon the two women already referred to. He received a 12 month sentence of imprisonment, suspended for 2 years with a mental health treatment requirement. Having considered the provisions of s.27(4) of the Act, and the decision in Hungary v Fenyvesi [2009] EWHC 231 (Admin) at paragraphs 28 to 36, we refuse to receive the transcript in evidence. In our judgment that evidence existed at the time of the extradition hearing and could with reasonable diligence have been obtained. Having considered the transcript de bene esse, we did not in any event consider that it materially advanced matters.
10. There are 3 grounds of appeal (1) extradition would be unjust and/or oppressive by reason of the passage of time, contrary to s.14 of the Act, (2) extradition would be incompatible with the appellant's private and family life rights protected by Article 8 ECHR, contrary to s.21A(1)(a), (3) extradition would be disproportionate contrary to s.21A(1)(b) of the Act.

Ground 1

11. In relation to s.14, the judge found that surrender would not be oppressive due to the passage of time. He accepted that the appellant was not a fugitive. He noted that there had been a delay of 6 years between the offence and issuing of the EAW. He found that the Polish authorities by implication were unaware of the appellant's whereabouts after he had left the country. He found that the appellant had been living openly in the UK since 2008, and that he had developed a serious mental health condition, namely schizophrenia which had led to a serious breakdown in 2015. He identified those as factors favourable to the finding of oppression, but found factors to the contrary.
12. He held that the offence was serious, that the victim's purported withdrawal statement denying that any robbery had taken place, dated 11 October 2015, was not properly substantiated, so that he attached little or no weight to it. He held that whilst there had been "some delay" it would not under domestic law lead to any conclusion that the appellant could not receive a fair trial.
13. As to the appellant's mental health condition, he held that that would not of itself lead to a conclusion that surrender would be oppressive, indicating that he would consider the matter in further depth in relation to submissions which had been made under s.25 of the Act. His analysis under that heading, which involved a consideration of Dr Jenkins' evidence supported by a witness statement from the appellant's mother, led the judge to conclude that without appropriate measures in place, extradition would almost inevitably lead to a serious relapse in the appellant's mental health.
14. On the other hand, the evidence was clear that if he received and took his medication, he was likely to remain well. There was no evidence that the appellant would not receive appropriate medical attention or medication in Poland. The burden of proof was on the appellant to show that he would not receive appropriate treatment in Poland, and he had not been able to show this. Whilst extradition would undoubtedly cause stress and hardship, it would not be unjust or oppressive to extradite him, so long as he received appropriate treatment.
15. Although the appellant challenged the judge's conclusion under s.14, this ground was not his primary ground of appeal. The point taken on this ground was that the judge had failed to look at what would have happened had matters proceeded promptly and had there been an early trial. Had that approach been taken, the judge would have been considering a man who did not face trial for an old offence, and who had not suffered a breakdown in his mental health, in circumstances where he would be put at risk of relapse if returned to Poland, and where a court in this country had recently dealt with a significant case against him in a non-custodial way, which enabled him to continue necessary treatment. Such delay as had taken place could be regarded as culpable, and if so, that could colour the judgment to be made on oppression. It was argued that the judge had not properly focused on oppression in the context of the passage of time, because he had in large measure dealt with the appellant's mental state in addressing submissions under s.25 which was concerned with whether the appellant's physical or mental condition was such that it would be unjust or oppressive to extradite him. That section involved a narrower approach from that under s.14.
16. The respondent's position was that in essence the judge in his s.14 conclusion had not been shown to be wrong within the meaning of Poland v Celinski [2015] EWCA 1274 at paragraph 24. The judge had considered relevant factors, including the length of delay, the gravity of offending and the appellant's mental health.

Conclusion on Ground 1

17. Those matters were indeed considered in the judge's ruling, and I do not think that he fell into error by leaving out of account the withdrawal statement, since in these proceedings evidential sufficiency is not a relevant matter, and since in any event the judge was unconvinced about the provenance of that statement. The question of any impact upon the appellant's mother were he to be extradited was, as Ms Iveson, for the Respondent, argued, better considered under a s.21A(1)(a) Article 8 submission rather than under a s.14 submission where the issue was whether extradition would have an oppressive effect upon on the appellant.
18. The focus of the appellant's submission was not on the risk of prejudice to the appellant in the event of trial, ("unjust"), it was on whether extradition would be oppressive by reason of the hardship caused to the appellant resulting from changes in his circumstances since the time of the offence. In that context the appellant's mental state was central. The judge's s.14 ruling plainly considered that aspect of the matter in concluding that extradition would not be oppressive through the passage of time, and indicated that the matter would be dealt with in greater detail in the section dealing with submissions under s.25. I do not consider that his judgment should be read in a way which suggests that the judge did not give adequate consideration to mental health issues under s.14. There was no need for a judge to set out his relevant findings twice. He chose to set out those findings in detail under a s.25 heading, but had foreshadowed them in his ruling under s.14.
19. At the heart of the judge's consideration was a finding that compliance with taking medication was of crucial importance. Whilst Dr Jenkins had stated that the appellant would be at high risk of relapse if he returned to Poland alone, it had not been said that he would be likely to become non-compliant with his medication if he were on a medical wing in a prison. The thrust of Dr Jenkins' evidence was that medication was "the lynch pin" and that if the appellant remained compliant with medication, he would remain well. There was no evidence that appropriate medical care would not be provided if the appellant were remanded in custody. If the appellant were on bail, his mother had stated she would return to Poland with him, thus ensuring compliance with taking medication.
20. It seems to me that the judge's analysis of the evidence was such that in either circumstance, (bail or custody), the risk of relapse was relatively low, and the judge was entitled to find that it did not make return oppressive. The burden of proof lay with the appellant to show on the balance of probabilities that extradition would be oppressive. I consider the court was entitled to proceed on the basis of an assumption that appropriate medical care would be provided for the appellant, if he were remanded in custody in Poland. I am not persuaded that, having examined the primary factor in assessing the effect which the passage of time had had, namely the onset of the appellant's mental illness, the judge erred in his approach or in his conclusion that return would not be oppressive. Whilst the judge was prepared to accept that return would undoubtedly cause stress and hardship to the appellant, and whilst he had had regard for Dr Jenkins' opinion that the appellant's mental health would suffer if he went to a prison, he was entitled to conclude that the necessary threshold of oppression was not met, and thus to reject the s.14 challenge. For these reasons I would reject ground 1.

Ground 2

21. As to the second ground, which relates to s.21A(1)(a) and Article 8 rights, the judge had found that surrender would not disproportionately have an impact upon the appellant's rights. He said he had balanced these with the very high public interest in ensuring that extradition arrangements are honoured. He also took account of the fact that the EAW is based on principles of mutual recognition and trust between member states in extradition procedures. He identified the alleged offence of robbery as serious and noted that the appellant had committed serious offences in the UK. Having identified those factors, he also identified matters which militated against extradition. Those were the appellant's settled life in the UK since 2008 and his mental health condition, stable when treated with drugs, but subject to serious deterioration without such medication. He took account of the appellant's heavy reliance on his mother to ensure that his basic needs were met, including ensuring that he took his medication. In this context the judge also had regard to the appellant's compliance with the recently made suspended sentence order and the treatment requirement. Finally, the judge noted a delay of 6 years before issue of the EAW, and the fact that the allegation concerned events taking place in November 2008, when the appellant was aged 24, compared with his present 32 years. The judge's overall conclusion on this issue, was that surrender would not disproportionately impact upon the appellant's Article 8 rights.
22. Mr Hall, for the Appellant, contended that the judge's ruling contained a number of errors or omissions. If he was correct about that the court would have to assess the question of compatibility with Article 8 rights for itself and see if the judge's decision was wrong.
23. Firstly, it was said that the judge had misdirected himself as to the appropriate test. In his judgment he had said:

"40 The principles in H H make it very clear that is likely that the public interest in extradition will out-weigh the Article 8 rights of the family unless the consequences of the inference with family life will be exceptionally severe in only the most exceptional cases [our italics].

41 Whilst extradition in this case will amount to an interference with the Article 8 rights of the RP such interference is, in my view both necessary and proportionate. The public interest in extradition in this case clearly outweighs that interference. The circumstances do not overcome the very high threshold [our italics] required before it could be said that the balancing exercise should be determined in the RP's favour.

42 The RP has a settled life in the UK, but has no partner or dependents. He does suffer with a mental disorder, but as long as he continues to received appropriate treatment this will not be exacerbated to an extent that would be considered 'unjust or oppressive' [our italics]. The offence of which he is accused is serious and whilst there has been some delay I am of the view that the could still receive a fair trial in Poland.

43 Having performed the balancing exercise as required and as set out above, it is my view that the 'weighty imperative' and public interest in extradition does outweigh the interference in the RP's private and family life as advanced on his behalf.

44 For all of the above reasons I am satisfied that the RP's extradition would be compatible with her [sic] Convention Rights, in particular Article 8. "

24. Mr Hall pointed out that in H H v Italy [2012] UKSC 25 at paragraph 8, Lady Hale had expressly stated at (2) that there was no test of exceptionality in the context of extradition, and that although she had stated at (7) that "it is likely that the public interest in extradition will outweigh the Article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe", she had not added the last six words which appear in paragraph 40 of this judgment. The effect of this was that the judge had imposed wholly incorrectly a significant layer of exceptionality on the approach to his decision.
25. That error had been compounded by the reference at paragraph 41 of the judgment to the "very high threshold required", when in fact what was required was a straightforward balancing exercise of arguments for and against as set out in paragraph 33 of the Celinski. Moreover, the reference at paragraph 42 to "unjust or oppressive" had the effect of wrongly importing the s.14 test into s.21A(1)(a) where the court was concerned with whether extradition would be compatible with Convention rights.
26. Secondly, the judge had failed properly to consider the issue of delay; he had merely noted "there was a delay of 6 years before EAW was issued", as one of a number of factors telling against extradition. As we have seen at paragraph 42 of the judgment, he merely referred to the fact that "there has been some delay". Mr Hall said that the judge had wrongly failed to give the issue deeper consideration. In particular he should have reflected the fact that the delay was not the appellant's fault. He should also had regard to the way in which the delay had impacted on the appellant. The respondent had failed to reply to questions sent about 9 months before the hearing, seeking information about the delay between the offence and the issue of the EAW, and about any efforts made to trace the appellant during that the period. A further request in this respect was pursued about 2 weeks prior to the hearing, but had never been responded to.
27. Mr Hall argued that a long unexplained delay could weigh heavily in the balance against extradition, and cited Stryjecki v Poland [2016] EWHC 3309 (Admin) at paragraph 70 (vi) and (vii). He also drew attention to paragraph 8(6) of HH where Baroness Hale said that "delay since crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life." In the absence of any forthcoming explanation for the delay, despite ample opportunity, the judge should have viewed the impact of a considerable period of delay as being coloured by the failure to explain it.
28. Next Mr Hall argued that the judge was remiss in failing to consider the likely sentence after any trial in Poland. He relied on the observations of Lord Judge CJ in HH in paragraph 132, where he said:

"It certainly does not follow that extradition should be refused just because the sentencing court in this country would not order an immediate custodial sentence: however it would become relevant to the decision if the interests of a child or children might tip the sentencing scale here so as to reduced as to what would otherwise be an immediate custodial sentence in favour of a non-custodial sentence (including a suspended sentence)."

Mr Hall urged that this appellant's mental health issues could be equated with the interests of the child or children. He submitted that if the appellant were now to be sentenced in this country for the robbery committed in 2008, a suspended sentence would be very likely given the combination of the passage of time and this appellant's mental health condition.

29. A further asserted omission was the judge's failure to attach weight to the impact of extradition upon the appellant's mother. The judge had failed to take account of the fact that she would have to uproot herself from this country, so as to help care for her son in Poland. She would go from her home here to a place where she would have no home and no job. She had given evidence to this effect to the judge and he had accepted it. However, he had not taken it into account in the Article 8 exercise.
30. It was also said that the judge was in error in failing to attach weight to a request by the appellant made on 28 May 2016 to be interviewed by the respondent by video link or other means. He wished to be questioned and to put forward his account in respect of the offence. He made this request under s.21B of the 2003 Act. It had not been responded to by the time of the hearing. On 13 June the judge adjourned his decision until 25 July 2016 and said that any response to the s.21B request should be served by 1 July 2016. No reply to the request came prior to the judgment, or thereafter. The judicial authority might reasonably have responded to the proposal of a less coercive measure than extradition, particularly in the light of the withdrawal statement and the state of the appellant's mental health.
31. Any balancing exercise carried out by this court as to the compatibility of extradition with the appellant's Article 8 rights should lead to the appellant's discharge.
32. In response Ms Iveson accepted or did not challenge that the judge had misdirected himself. Her approach was that whilst the judge could properly be criticised for the language which he used, his errors in expressing himself did not necessarily mean that his decision was wrong. As Celinski showed, that was the sole question which this court should ask itself. The judge below had in fact carried out a balancing exercise of the type required by Celinksi and had listed factors for and against extradition in the Article 8 balancing exercise. As to delay, Ms Iveson said that whilst the passage of time was relevant, it did not necessarily mean that any delay should be regarded as culpable. The delay of 6 years in this case, even if unexplained, was insufficient to lead to an assumption of culpability. The judge had referred to the passage of 6 years, and the fact that the appellant was now in his thirties as opposed to mid twenties. The court should primarily be looking at the effect of delay, rather than the requesting State's culpability. Reliance on Stryjecki v Poland was misplaced because in the three cases cited at paragraph 70, the authorities had either known that the appellant was in the UK, or the cases were concerned with a delay between the issue of EAW and its certification. In this case there was no evidence to show that the Polish authorities knew that the appellant had left Poland, and that was relevant to a consideration of delay. The fact that charges had been laid promptly in Poland, showed that the authorities were taking matters seriously.
33. Ms Iveson urged caution about the approach to likely sentence. It had been conceded that the offences of robbery were serious. It could not necessarily be assumed that the Polish authorities would impose a suspended sentence because of the appellant's mental health problems. In any event, as Celinski at paragraph 12 showed, factors that mitigate the gravity of the offence would ordinarily be a matter for the court in the requesting State to take into account, and it was important in an accusation EAW case for the judge at the extradition hearing to bear that in mind.
34. It was accepted that the position of the appellant's mother was a relevant factor at this stage, and that the judge had not taken it into account. However, it was submitted that that failure could not affect the outcome. It was clear that the appellant's mother was an adaptable person. During the relevant period she had lived in Italy, moved back to Poland and then come to this country, where she had found a job and accommodation. If she returned to Poland she would be going back to her native land, where she had other family members.
35. As to the failure to consider the s.21B request, too much significance had been attached to the non-reply. The proposed interview would achieve nothing useful. The purported withdrawal statement, which had been provided to the Polish authorities would not be affected by an interview. Its provenance was doubtful and the weight to be attached to it, did not form part of the extradition procedures. Moreover, an interview would not have been to enable the appellant to put forward an alibi for consideration, or assert that he was a wrongly identified person. His case was that no offence had been committed, based on the withdrawal statement. An interview with the appellant would not shed light on his mental condition, since the judicial authority already had his witness statement which referred to that. Accordingly, there was no useful purpose to be served by interview, and the judge was entitled to take the view that the judicial authority by its silence had made its position clear.

Conclusion on Ground 2

36. It seems clear to me that the judge did make errors of approach, as the appellant contends, in considering the compatibility of the appellant's Article 8 rights with extradition. It is true that the judge identified lists of factors militating for and against extradition consistent with the balancing exercise set out in Celinski but that was done against a background of a serious misstatement of the approach to that exercise. In my judgment the judge's balancing exercise must have been infected by the over-stringent approach which he adopted, one which would have inevitably operated adversely towards the appellant. I do not regard what occurred as amounting to excusable verbal infelicity which had no real impact. The errors in approach go far too deep for that.
37. I also consider that the judge's approach to delay involved a degree of under- analysis. The judge mentioned the period involved, but said little more than that. He recognised it as a factor militating against extradition, but appeared to confine its impact by saying "whilst there has been some delay, I am of the view that he could still receive a fair trial in Poland." During the period of delay there have been significant changes in the appellant's circumstances, including the situation arising from his mental illness, but the judge did not analyse delay in the context of its impact upon the appellant. To this extent I consider that there is some force in the delay point taken by Mr Hall. There is also a clear failure to consider the impact of extradition upon the appellant's mother. Based on these considerations I would hold that the District Judge had failed properly to carry out the balancing exercise, both in his approach, and in relation to the need to take account of relevant factors.
38. I was less convinced by the criticisms raised by Mr Hall in relation to other aspects of the decision in this context. As to likely sentence, that is undoubtedly a matter which a judge must consider in deciding a question under s.21A(1)(b), namely whether extradition would be disproportionate. However, I find it hard to see that this matter has any real bearing on the compatibility assessment under s.21A(1)(a) in the context of this case. This is particularly the case in the light of the observations in Celinski suggesting that matters of mitigation, and thus matters rendering a suspended sentence more likely, are for the assessment of the court in the requesting State. In any case, the matters advanced by Mr Hall do not allow any conclusions with sufficient certainty as to the probable sentence. Similarly, I consider that the question of a s.21B request again arises much more naturally under the disproportionality question raised at s.21A(1)(b), not least because less coercive measures are one of the three specified matters under that sub-section which a judge must take into account.
39. It is in any event clear that, in the light of the conclusions thus far, we must perform our own balancing exercise in resolving the question under s.21A(1)(a) and ask ourselves the ultimate question of whether the judge's decision in this respect was wrong.
40. In my judgment the factors that favour extradition are the very high public interest in ensuring that extradition arrangements are honoured. The EAW system is based on principles of mutual recognition and trust which Member States have in their justice systems. Moreover, the offence for which the appellant is sought is serious, and accepted as such.
41. Notwithstanding the prediction at paragraph 8(7) of HH that the public interest in extradition will likely outweigh Article 8 rights unless the consequences of interference with those rights will be exceptionally severe, it is clear from paragraph 8(2) that there is no test of exceptionality. What is required is a balancing of factors weighing the balance between the public interest in extradition on one side, and the effect that extradition would have on Article 8 rights on the other.
42. As to factors militating against extradition, I note that the appellant was not a fugitive and had been settled in the UK since 2008, having acquired a national insurance number, a British bank account, and having been registered at the Department for Works and Pensions for a number of years. Although charges were laid promptly in Poland, there was a 6 year delay before the issuing of the EAW. During this period the appellant was registered openly with UK state authorities and, for at least part of the period, his mother had returned to Poland from Italy, prior to coming to this country in 2011. There has been no response to enquiries as to the cause of delay. The appellant has suffered from a serious mental health condition, which persists, but which is stable when treated with drugs. There would be serious deterioration should the appellant not receive or take those drugs. The appellant's mother left Poland for this country and had since the appellant's discharge from hospital provided a home and day to day care for the appellant, including supervision of his medication needs. The Appellant relies very heavily upon her.
43. Since the appellant's sentencing at Blackfriars Crown Court in March 2016, the appellant has been the subject of a court order with a mental health treatment requirement which has been complied with. The appellant remains under the care of a medical team whose role is to cope with a chronic, severe and enduring mental illness. The stability of the present arrangements would be jeopardised by extradition. If the appellant were bailed he would need to be in the care of his mother to ensure compliance with medication. Her evidence to the judge, which was not rejected by him, was that, at the very least, return to Poland would be difficult for her without a job or a home to go to. Even on the assumption that the Polish authorities would provide appropriate medication if the appellant were returned to custody in Poland, the judge did not reject Dr Jenkins' opinion that the appellant's mental health would "definitely suffer" if he were in any prison. Whilst the judge, as we have seen, rejected the proposition that return would be oppressive, he said it would undoubtedly cause the appellant stress and hardship.
44. It seems to me that the undoubted very significant weight which should be attached to the public interest considerations of extradition can properly be said to be somewhat lessened by the delay of 6 years. Whilst I would be prepared to accept it would not immediately have been apparent to the Polish authorities that the appellant had left the country, there ought to have been an earlier point at which this was apparent. In the absence of explanation, notwithstanding ample opportunity for doing so, I consider that a fair conclusion to reach. The consequence of this is that I would regard it as some indication of a lesser degree of importance attached to the offending, with a concomitant diminution in the weight to be attached to the public interest.
45. The onset of the appellant's mental health problems and the need for constant medication to contain the position is obviously of particular importance. The delay involved is directly related to this, since this a condition which did not develop until several years after the appellant had allegedly committed the robbery. The effect of extradition will be to take away from this appellant a stable situation in which he can receive appropriate treatment, whilst living in a settled domestic setting with his mother, and while being treated in such circumstances by a team of medical professionals who are familiar with him and his medical history. In addition, whilst it may properly be said that the appellant's mother is clearly an adaptable person, it is clear that her ability to make appropriate provision for the appellant in the event of his return to Poland, would be significantly compromised. Counsel for the respondent did not suggest that her effective enforced removal back to Poland was not a factor to be considered at this stage, although I would accept that her position carries rather less weight than that of the appellant.
46. Whilst it is to be hoped that arrangements would be made in Poland to avoid a relapse into very serious mental illness for this appellant, it cannot be gainsaid that return would involve a significant degree of risk of that occurring as well as considerable stress and hardship for this appellant. That is to be contrasted with the settled way of life available to him here, with much stronger guarantees of maintaining stability in his condition.
47. I would regard the foregoing analysis as one which indicates that the consequences of extradition for this appellant are at a sufficient level of severity to render extradition incompatible with this appellant's Article 8 rights. Accordingly, I would hold that the judge's conclusion to the contrary was wrong and, the pursuant to s.27(3) would order the appellant's discharge.

Ground 3

48. The third ground, challenges the judge's conclusion under s.21A(1)(b), on the issue of whether the extradition would be disproportionate. The judge held that the offence was serious, that custody was a likely penalty, and that there were no less coercive measures available. Those were the specified matters which the judge is limited to considering by virtue of s.21A(3), so far as he thinks it appropriate to do so. He found that extradition would not be disproportionate based on those considerations.
49. As to the possibility of the Polish authorities taking measures that would be less coercive than extradition, the position was the appellant had made a proposal a few weeks prior to the extradition hearing that he be interviewed by the requesting authority in relation to the offence, as a less coercive measure. The Polish authorities had not responded to that suggestion by the date of the judgment, although the judge had indicated a date by which they could respond prior to judgment. The judge found that there was no evidence before him that they had accepted or would accept the proposal, and said that in the circumstances he must respect the decision to charge the appellant.
50. The appellant challenges the judge's decision in this respect as being wrong. The focus of the argument related to the judge's decision as to less coercive measures referred to in s.21A(3)(c). It was argued that measures such as arrangements to enable an interview between the appellant and requesting State authorities under s.21B(3)(b) constituted mutual legal assistance (MLA) which should be treated as included within less coercive measures under s.21A(3)(c). That sub-section refers to "the possibility of the relevant legal authorities taking measures that would be less coercive than the extradition of D".
51. Mr Hall argued that such an approach would be consistent with bringing proportionality to extradition proceedings and would enable, for example, the possibility of withdrawal of an EAW and the issue of a summons. He relied on Powney v Slovenia [2015] EWHC 2543 (Admin), at paragraphs 39 and 40. He also relied Miraszewski v Poland [2015] 1WLR 3929, at paragraph 40.
52. Both those decisions pre-date the decision of this court in Puceviciene v Lithuania [2016] EWHC 1862. That case was primarily concerned with the correct construction and application of s.12A of the Act. However, at paragraphs 77 to 81 the court in Puceviciene considered sections 21A and 21B. In Sutas v Lithuania [2017] EWHC 156 (Admin), Garnham J at paragraph 30 held that the observations of Lord Thomas CJ at paragraph 80 of Puceviciene were clearly intended to state that MLA could not properly be seen as a less coercive measure within s.21A. He dismissed a challenge to a District Judge who had held that MLA could not be used as a less coercive measure under s.21A(3)(c).
53. Mr Hall recognised that these decisions represented an obstacle to his argument, but maintained reliance on Powney and Miraszewski, and notwithstanding that Miraszewski had specifically been considered in Puceviciene.
54. He urged that he court should analyse the three specific factors under s.21A(3), including those relating to MLA, and ask itself whether looking at matters in the round, extradition would be disproportionate. Such consideration could include the fact that the requesting State's failure to respond to a request for an interview had deprived the requested party of a reasonable possibility of less coercive measures being taken in place of extradition.
55. The respondent's initial response was based on a assertion that on the merits of this case, no useful purpose could be served by an interview, and that the requesting State had made that clear by not responding to the request. Ms Iveson said that the appellant had attached too much significance to the absence of a reply. Her initial submission accepted that s.21A might entail a consideration of s.21B measures. However, she noted that s.21B did not create a bar to extradition, so that the case would have to be exceptional before proportionality was affected.
56. At a late stage of proceedings, during which the decision in Sutas which had been handed down that morning became known, Ms Iveson altered her position to one of reliance on the decisions in Puceviciene and Sutas as precluding reliance on MLA in the context of the S.21A proportionality exercise. This late change of position was unfortunate, in that it meant that the issue was not fully explored at hearing which had already over-run its allocated time-slot by a huge margin.
57. This is the first of three reasons why I consider that a close examination of these arguments is neither necessary nor desirable in the present case, although my inclination would have been to follow those decisions. The second reason is that, given my conclusion on Ground 2, the Appellant must in any case be discharged. The resolution of the legal argument on ground 3 will not affect that disposal of the appeal. The third reason is that, even if Mr Hall was right in his legal argument on ground 3, this ground would still fail on the facts. I note that in both Miraszewski and Powney the court stated that it would be a reasonable assumption in most cases that the requesting State had, pursuant to its obligation under Article 5(3) of ECHR, already considered the taking of less coercive measures. There is a burden on a requested person to identify less coercive measures, which are not merely available in principle but are also appropriate in the circumstances of the case.
58. I would accept Ms Iveson's argument that, in the circumstances of this case, it was clear that the requested interview would be of no practical effect. The requesting State was already aware of the appellant's mental condition and the withdrawal statement relied on. For the appellant to put forward in interview an account presumably consistent with the withdrawal statement, to the effect that no offence had taken place, would not realistically advance matters further. I consider that the District Judge was entitled to conclude that since the Polish authorities were still pressing for extradition, notwithstanding their knowledge of the withdrawal statement, the appellant's mental condition, and his request for an interview, they had considered and rejected that proposal. For the reasons given I would hold that such less coercive measures were not appropriate in the circumstances of the case. Accordingly, the judge's decision as to proportionality was not in error.

Conclusion

59. The appeal is allowed for the reasons set out under ground 2.

NICOL J:

60. I agree.