QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| (1) MOHAMMED GHIAS UDDIN PATMAN
(2) DARYA KHAN SAFI
- and –
|SPECIALIST CRIMINAL COURT IN PEZINOK, SLOVAKIA
Peter Caldwell (instructed by Armstrong Solicitors) for Mr. Safi, the Second Appellant
James Stansfeld (instructed by Crown Prosecution Service) for the Respondent
Hearing dates: 1st & 2nd December 2020
Crown Copyright ©
MR JUSTICE SWIFT:
(1) The European Arrests Warrants
"…accused Mohammed Ghiasuddin PATMAN and Darya Khan SAFI intend to kill the victim at the territory of the Slovak Republic or, alternatively, Austria, in yet not exactly specified way either by using improvised explosive device at locations where the victim is usually walking or staying or in any other, yet unspecified way at such location or in their motor vehicle supposing they would manage to kidnap the victim using that vehicle, or in other way; no attempt has been made until now nor has the murder been completed yet…"
"(1) Preparation for committing a felony means wilful organisation of a criminal act, procurement or adaptation of means or instruments for its commission, associating, grouping, instigating, contracting, abetting or aiding in such crime, or other deliberate actions designed to create conditions for its commission, where a felony has been neither attempted nor completed."
Section 13(2) states that "Preparation for committing a felony shall carry the same punishment felony for which it has been intended." Section 20 of the Slovakian Criminal Code provides
"If criminal offence was committed by two or more persons acting in conjunction (accomplices), each of them has the same criminal liability as the single person who would commit such a criminal offence."
(2) The issues in the appeal
(3) New evidence
(1) Section 19B of the 2003 Act. Forum bar
(1) The extradition of a person ("D") to a category 1 territory is barred by reason of forum if the extradition would not be in the interests of justice.
(2) For the purposes of this section, the extradition would not be in the interests of justice if the judge—
(a) decides that a substantial measure of D's relevant activity was performed in the United Kingdom; and
(b) decides, having regard to the specified matters relating to the interests of justice (and only those matters), that the extradition should not take place.
(3) These are the specified matters relating to the interests of justice—
(a) the place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur;
(b) the interests of any victims of the extradition offence;
(c) any belief of a prosecutor that the United Kingdom, or a particular part of the United Kingdom, is not the most appropriate jurisdiction in which to prosecute D in respect of the conduct constituting the extradition offence;
(d) were D to be prosecuted in a part of the United Kingdom for an offence that corresponds to the extradition offence, whether evidence necessary to prove the offence is or could be made available in the United Kingdom;
(e) any delay that might result from proceeding in one jurisdiction rather than another;
(f) the desirability and practicability of all prosecutions relating to the extradition offence taking place in one jurisdiction, having regard (in particular) to—
(i) the jurisdictions in which witnesses, co—defendants and other suspects are located, and
(ii) the practicability of the evidence of such persons being given in the United Kingdom or in jurisdictions outside the United Kingdom;
(g) D's connections with the United Kingdom.
(4) In deciding whether the extradition would not be in the interests of justice, the judge must have regard to the desirability of not requiring the disclosure of material which is subject to restrictions on disclosure in the category 1 territory concerned.
(5) If, on an application by a prosecutor, it appears to the judge that the prosecutor has considered the offences for which D could be prosecuted in the United Kingdom, or a part of the United Kingdom, in respect of the conduct constituting the extradition offence, the judge must make that prosecutor a party to the proceedings on the question of whether D's extradition is barred by reason of forum.
(6) In this section "D's relevant activity" means activity which is material to the commission of the extradition offence and which is alleged to have been performed by D."
"It is clear that any murder was intended to take place in Slovakia or Austria. Reconnaissance visits to both countries were made, approaches were made to persons in Slovakia to assist in the planned offence. There were activities in the United Kingdom, car windows were blacked out and winter tyres fitted to the car to be used for visits, there was phone communications between the two Requested Persons in this country and also between them when one was in Austria/Slovakia. There was clearly activity in the United Kingdom and any agreement to commit the crime was probably made in the United Kingdom given both Requested Persons are resident here. That said the bulk of activity was in Slovakia which is where the proposed offence would have been committed. I take the view that there was enough activity in the United Kingdom to amount to a "substantial measure of D's relevant activity", the gateway for considering the factors in Section 19B(3) is therefore opened. That being the case I am required to go on to consider Section 19B(3) and whether it is in the interest of justice to extradite."
The District Judge then considered the section 19B(2)(b) question, by reference to the matters listed at section 19B(3): see the judgment at paragraphs 19 to 25. At paragraph 26 the District Judge stated his overall conclusion
"No particular factor under Section 19B(3) has inherently more weight than any other, the weight to be attached to each factor is case specific; it is a matter for me as appropriate judge to weigh the various factors in the section and attach the appropriate weight to each one, I must not consider any extraneous factors. In this case the place where the harm was intended to occur is in my view a particularly powerful factor, as is the interests of the victim and the potential for delay if the United Kingdom is chosen as venue. The warrant leads me to conclude there is the possibility there will be a co-accused Ramazan Kalandar who is an Afghan-Pashto who appears to have been in Bratislava in August 2018 and who seems lightly to have been selected as an accomplice because of connections in Slovakia. I cannot put that factor as a particularly strong one as it is really speculation. Paragraphs (c) and (d) are really neutral. The one factor that is strongly in favour of the Requested Persons is their strong connections to the United Kingdom. Extradition would be barred under Section 19B(3) Extradition Act 2003 if it were not in the interests of justice. In my view the Requested Person's connections to the United Kingdom do not make it contrary to the interest of justice to order extradition given the alleged plan to commit murder was intended to be committed in Slovakia and given the delay that would be undoubtedly caused by starting a prosecution in the United Kingdom. I therefore do not find extradition barred under the section 19B(1) Extradition Act 2013."
"90. The argument that the Convention or the 1998 Act requires the Court of Appeal to form its own view in every case where a trial judge's decision on proportionality is challenged, appears to me to be wrong in principle and potentially unfair or inconvenient. The argument is wrong in principle because, if the function of the Court of Appeal is as I have described, then, in my view, there can be no breach of the Convention or the 1998 Act, if it conducts a review of the trial judge's decision and only reverses it if satisfied that it was wrong. The only basis for challenging that view is, on analysis, circular, as it involves assuming that the Court of Appeal's primary function is to reconsider not to review. The argument is potentially unfair or inconvenient, because in cases where the appeal court could not be sure whether the trial judge was right or wrong without hearing the evidence and seeing the witnesses, it would either to have to reach a decision knowing that it was less satisfactorily based than that of the judge, or it would have to hear the evidence and see the witnesses for itself.
91. That conclusion leaves open the standard which an appellate court should apply when determining whether the trial judge was entitled to reach his conclusion on proportionality, once the appellate court is satisfied that the conclusion was based on justifiable primary facts and assessments. In my view, an appellate court should not interfere with the trial judge's conclusion on proportionality in such a case, unless it decides that that conclusion was wrong. I do not agree with the view that the appellate court has to consider that judge's conclusion was "plainly" wrong on the issue of proportionality before it can be varied or reversed. As Lord Wilson JSC says in para 44, either "plainly" adds nothing, in which case it should be abandoned as it will cause confusion, or it means that an appellate court cannot vary or reverse a judge's conclusion on proportionality of it considers it to have been "merely" wrong. Whatever view the Strasbourg court may take of such a notion, I cannot accept it, as it appears to me to undermine the role of judges in the field of human rights.
92. I appreciate that the attachment of adverbs to "wrong" was impliedly approved by Lord Fraser in the passage cited from G v G (Minors: Custody Appeal)  1 WLR 647, 652, by Lord Wilson JSC at para 38, and has something of a pedigree: see e.g. per Ward LJ in Assicurazioni  1 WLR 577, para 195 (although aspects of his approach have been disapproved: see Datec  1 WLR 1325, para 46). However, at least where convention questions such as proportionality are being considered on an appeal, I consider that, if after reviewing the trial judge's decision, an appeal court considers that he was wrong, then the appeal should be allowed. Thus, a finding that he was wrong is a sufficient condition for allowing an appeal against the trial judge's conclusion on proportionality, and, indeed, it is a necessary condition (save, conceivably, in very rare cases).
93. There is a danger in over-analysis, but I would add this. An appellate judge may conclude that the trial judge's conclusion on proportionality was (i) the only possible view, (ii) a view which she considers was right, (iii) a view on which she has doubts, but on balance considers was right, (iv) a view which she cannot say was right or wrong, (v) a view on which she has doubts, but on balance considers was wrong, (vi) a view which she considers was wrong, or (vii) a view which is unsupportable. The appeal must be dismissed if the appellate judge's view is in category (i) to (iv) and allowed if it is in category (vi) or (vii).
94. As to category (iv), there will be a number of cases where an appellate court may think that there is no right answer, in the sense that reasonable judges could differ in their conclusions. As with many evaluative assessments, cases raising an issue on proportionality will include those where the answer is in a grey area, as well as those where the answer is in a black or a white area. An appellate court is much less likely to conclude that category (iv) applies in cases where the trial judge's decision was not based on his assessment of the witnesses' reliability or likely future conduct. So far as category (v) is concerned, the appellate judge should think very carefully about the benefit the trial judge had in seeing the witnesses and hearing the evidence, which are factors whose significance depends on the particular case. However, if, after such anxious consideration, an appellate judge adheres to her view that the trial judge's decision was wrong, then I think that she should allow the appeal.
95. I am conscious that the analysis in paras 80–90 appears to differ somewhat from that of Baroness Hale JSC in paras 204–205 and of Lord Kerr JSC in paras 116–127. However, at least in my opinion, it would, essentially for two reasons, be a very rare case where their approach would produce a different outcome from mine. First, it is only my category (iv) which gives rise to disagreement, in that they would not, as I understand it, accept that such types of case exist. However, many, probably most, cases that on my approach would fall into that category would, on their approach (especially in the light of what they say about the weight to be given to the trial judge's assessment) be in category (iii), which would yield the same outcome. Secondly, the advantage which the trial judge has in hearing the evidence and seeing the witnesses will mainly apply to his findings of primary fact, inferences of fact, and assessment of probable outcomes, which then feed into his assessment of proportionality (and, in this case, necessity). When those factors come to be weighed on the question of proportionality (or necessity), the advantage the trial judge has will normally be of less significance, and sometimes even of very little, if any, significance."
"36. I do not consider that the absence of an express statutory provision restricting a respondent to an appeal to this court from seeking to have new evidence admitted to have been accidental. Such a restriction, if it were indeed the legislative intention, would have been easy enough to include. It could and, in my view, would have been included.
37. Certainly, I do not consider that the statutory scheme looked at as a whole, drives one to conclude that, outside the express restrictions in section 27 and 29 of the 2003 Act, as a matter of implication, Parliament intended the High Court's inherent jurisdiction to allow in fresh evidence to be excluded or for it to be restricted to evidence that strictly satisfies the Fenyvesi criteria. I find Mr Southey's submissions as to why that conclusion should be drawn to be unpersuasive.
38. Given the different nature of an extradition appeal, I do not consider that the approach taken in other appellate schemes (including Ladd v Marshall) to be helpful. The suggestion that to allow a respondent to put in further evidence that would fail to satisfy the Fenyvesi criteria would be to give the requesting authority/CPS an unfair advantage has no substance: the proposition applies to any respondent, whether it be the requesting authority or the requested person. Allowing a respondent to submit further evidence in support of the district judge's findings, far from delaying a matter, would often if not usually expedite it: it would avoid the situation where an EAW is discharged on the basis of some defect that could be cured by the provision of further information, only to be reissued with that information included. Nor do I accept that an appellant has less than a full opportunity to present evidence in relation to an EAW – that opportunity, given equally to both parties, arises before the district judge. Furthermore, if information were to be provided by the respondent which, the court considers, it is in the interests of justice to admit, the court would be likely to conclude that it would be in the interests of justice also to admit evidence in response or rebuttal. The statutory provisions merely avoid a party that loses before the district judge – whether that party be requested person or requesting authority – having a second bite of the cherry. They are therefore supportive of the principle of finality, and generally of the broad principles that underlie the Framework Directive. It is not contrary to the letter or spirit of article 6 of the ECHR, or the common law requirements for a fair trial, to allow a party on an appeal to submit further information in support of a decision of the district judge where (for example) that information might confirm a finding of fact made by the district judge, whilst proscribing an unsuccessful party from submitting further evidence in support of the proposition he was wrong. It is noteworthy that, in this case, Mr Southey expressly confirmed that the Appellant had suffered no arguable prejudice from the admission of the further information provided by the requesting authority in March 2017 following the court's request."
In this appeal neither Appellant submits he is prejudiced by admission of the late evidence now produced by the RJA. The information now provided is relevant to the appeal and provides a more complete picture of the investigation is Slovakia. For these reasons it is in the interests of justice to admit it.
"33. … The Committee believes that it would be in the interests of justice for decisions about forum in cases where there is concurrent jurisdiction to be taken by a judge in open court, where the defendant will have the opportunity to put his case, rather than in private by prosecutors. Indeed, Parliament has already legislated for that to happen. The Committee therefore recommends that the Government introduce a "forum bar" as soon as possible".
"22. In our judgment, section 83A is clearly intended to provide a safeguard for requested persons, not distinctly to be found in any of the other bars to extradition or grounds for discharge, including section 87 and the wide scope of article 8 of the Convention. The safeguard is not confined to British nationals, but it is to be borne in mind that the United Kingdom is one of those countries which is prepared to extradite its own nationals. Its underlying aim is to prevent extradition where the offences can be fairly and effectively tried here, and it is not in the interests of justice that the requested person should be extradited. But close attention has to be paid to the wording of the statute rather than to short summaries of its purpose or to general parliamentary statements. The forum bar only arises if extradition would not be in the interests of justice: section 83A(1). The matters relevant to an evaluation of "the interests of justice" for these purposes are found in section 83A(2)(b). They do not leave to the court the task of some vague or broader evaluation of what is just. Nor is the bar a general provision requiring the court to form a view directly on which is the more suitable forum, let alone having regard to sentencing policy or the potential for prisoner transfer, save to the extent that one of the listed factors might in any particular case require consideration of it."
Thus, the notion of "interests of justice" is not a matter at large; rather it is carefully calibrated by the matters listed at section 19(3). The objective pursued by section 19B, a curb on claims to exorbitant jurisdiction, is also relevant because this too informs the choice of the matters which are listed in section 19B(3). There are no particular matters arising from the Framework Decision that affect the application of section 19B. There is no counterpart to or herald of section 19B in the Framework Decision. This may well reflect an unspoken premise that prosecutors in Member States will decide whether or not to prosecute cross-border crime by reference to the Eurojust Guidelines, most recently published in 2016 by the European Union Agency for Criminal Justice Cooperation, and will in that way avoid over-reach. Be that as it may, section 19B of the 2003 Act provides a material safeguard against over-reach in addition to the matters set out in the Framework Decision.
"40. (g) Connections with the United Kingdom: The judge was right to reject Mr Caldwell's submission, repeated with due restraint before us, that the concept of "connection" was a narrow one, confined to connections to the United Kingdom as a state, principally citizenship or right of residence. In our judgment, "connection" goes rather wider than that, without being so elastic that it replicates the full scope of article 8 of the Convention. No exhaustive definition can be attempted judicially, but "connection" is closer to the notion of ties for the purposes of bail decisions. It would cover family ties, their nature and strength, employment and studies, property, duration and status of residence, and nationality. It would not usually cover health conditions or medical treatment, unless there was something particular about the nature of the medical condition or the treatment it required, that connected the individual to treatment in the United Kingdom. The approach of the judge was correct."
This shows that a purposive approach is required. For example, the reason why "connection" as used in matter (g) is not to be understood as covering all matters that might fall within the scope of ECHR article 8(1) is that the overwhelming majority of such matters have no bearing at all on the purpose pursued by the section 19B forum bar. While it is likely that in all instances it will be relevant to consider whether the requested person is a British national or has a right to reside in the United Kingdom, whether other matters, for example family or personal ties, are relevant and if they are relevant the weight attaching to them, will depend on the circumstances of the case and specifically whether they are matters that touch upon the appropriateness of the forum. Otherwise, as recognised by the court in Love, matter (g) risks becoming a reincarnation of ECHR article 8(1) without the moderating influence of the justification provisions in article 8(2). This would render section 19B unruly, and risk distorting the carefully calibrated scheme for decisions on extradition requests set out in the 2003 Act. On the facts before the court in Love, Mr Love's mental health was the reason why particular aspects of his private life were relevant to the forum bar enquiry (in that case under section 83A in Part 2 of the 2003 Act): see the reasoning of the court at paragraph 43.
(2) Article 5 of the Framework Decision
"In the case that Mr Patman receives a life custodial sentence, according to section 67(2) of act 300/2005 Coll. Criminal Code, it is possible to review sentence and ask for conditional discharge after convicted person has served at least 25 years of such sentence."
"Guarantees to be given by the issuing Member State in particular cases
The execution of the European arrest warrant by the executing judicial authority may, by the law of the executing Member State, be subject to the following conditions:
2. if the offence on the basis of which the European arrest warrant has been issued is punishable by custodial life sentence or life-time detention order, the execution of the said arrest warrant may be subject to the condition that the issuing Member State has provisions in its legal system for a review of the penalty or measure imposed, on request or at the latest after 20 years, or for the application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing Member State, aiming at a non-execution of such penalty or measure;
3. where a person who is the subject of a European arrest warrant for the purposes of prosecution is a national or resident of the executing Member State, surrender may be subject to the condition that the person, after being heard, is returned to the executing Member State in order to serve there the custodial sentence or detention order passed against him in the issuing Member State."
"… where there is clear evidence that the executing judicial authority does not have provisions in its legal system for a review of the penalty or measure imposed, on request or at the latest after 20 years; that the UK courts should impose such a condition in order to give effect to the principles set out in FD given that this is a general objective that the Framework Decision is designed to advance."
(3) Section 25 of the 2003 Act
"33. Mr Safi was very badly treated in Afghanistan, he was physically and psychologically tortured and certainly at one point presented with PTSD. He has attempted to take his own life in 2011 but is not viewed as actively contemplating suicide at the moment. He is suffering from a mild to moderate depressive episode which is susceptible to treatment. Dr Hillman's conclusion about the effect on extradition on Mr. Safi is that "Travel to and facing criminal justice proceedings in Slovakia are likely to invoke some anxiety and potentially frustrations. It is difficult to predict with certainty whether this would result in a frank decompensation of this illness" in my view this falls well short of the level of impact that would make extradition unjust or oppressive.
34. The Article 3 challenge is based on the same facts. Dr Hillman has read the Council of Europe's 2008 CPT report on health care conditions in Slovak prisons. He says "Slovak prison healthcare is relatively understaffed in terms of medical and nursing personnel, though there is variable mental health provision depending on the institution, often through visiting psychiatrists" Dr Hillman concludes "as a foreign national it is therefore conceivable that a consistent and reliable supply of anti-depressant medication might not be available and that Mr Safi could risk a deterioration in depressive symptoms. This is process is difficult to predict with accuracy". There are two observations to make; firstly, Dr Hillman presents the risks as being at a relatively low level and perhaps somewhat hypothetically and secondly Dr. Hillman is reliant entirely on the CPT report, he is not an expert on Slovakian prison conditions. I do not find Dr Hillman's evidence goes far enough to displace the presumption that Slovakia will comply with its convention obligations. Mr Safi's challenge under Section 25/Article 3 ECHR fails. If find that Mr Safi's extraction is compatible with his Convention rights under Section 21A(1)(a) Extradition Act 2003 and having regard to the three factors in subsection (3) it would not be disproportionate; the offence is very serious, conspiracy to murder, the likely sentence is life imprisonment or a substantial determinate sentence and in view of my decision on forum there are no less coercive measures available. "
"I also assessed his mental capacity and insight about his mental health, need for treatment and possible suicidal attempts. Mr Safi has mental capacity regarding his deteriorating mental health and the need to engage in psychiatry treatment. He also appears to have mental capacity regarding his thoughts of life not being worth living and suicidal attempts, he has stated that although at the time of the interview he did have an active suicidal plan as has managed to speak to his family on the phone and actively engaged in prayers in Ramadan which appears to have helped ameliorate such thoughts but he stated that he could get ruminating thoughts where he wants to end his life and these are worsened due to the lockdown restrictions and being in prison. He was not willing to disclose how he would end his life but assured me that at present he does not have an active intent. It appears that this gentleman as part of his major depressive episode could present with thoughts of life not being with living, at times these thoughts are crystallised into a more active intent to end his life when faced with significant stressors. My view is that he retains mental capacity for his actions and at the present stage the severity of his depression has not affected his mental capacity."
It is apparent that when preparing his report Dr Rawala had access to the information reported by Mr Patman in his witness statement of 13 July 2020. Mr Patman and Mr Safi have been held on remand together; they share a cell. Mr Patman explains an incident in February 2020 where Mr Safi was very distressed, and Mr Patman thought he might attempt suicide.
"28. There have been a number of cases in which the courts have considered what has to be established … in order that a court may be satisfied that it would be unjust or oppressive to return a person to the state requesting extradition, because of the risk of suicide if the order to return were made. The relevant cases … establish the following propositions: (1) the court has to form an overall judgment on the facts of the particular case … (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 … (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 … (4) The mental condition of the person 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 extradition … (5) On the evidence, is the risk that the person will succeed in committing suicide, whatever steps are taken, sufficiently great to result in a finding of oppression … (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 properly with the person's mental condition and the risk of suicide … (7) There is a public interest in giving effect to treaty obligations and this is an important factor to have in mind …"
This approach was also adopted by another Divisional Court in Wolkowicz v Regional Court, Poland  1 WLR 402 per Sir John Thomas P at paragraphs 8 to 9.