QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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Kruk | Applicant. | |
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Judicial Authority of Poland | Respondent |
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Mr D. Ball (instructed by Crown Prosecution Service Extradition Unit ) appeared on behalf of the Respondent.
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Crown Copyright ©
Mrs Justice Steyn DBE:
"a. Offence 1 - Burglary - Between 1 October 2009 and 30 November 2009 in Okuninka, Wlodawa commune, the RP and another person, acting in complicity and in conspiracy, burgled a holiday cottage and an outhouse, by forcing the entrance door and stealing two loudspeakers, two mountain bikes, two extension cables, a set of keys and 10 locks to total value of PLN 1133.10 (around £235);
b. Offence 2 - Burglary - Between 20 November 2009 to 30 November 2009, in Okuninka, the RP broke into a holiday cottage and an outhouse and stole and [sic] extension cable and two electric cables to a total value of PLN 60 (around £12);
Between 1 November 2009 and 30 November 2009, in Okuninka, the RP attempted to break into summer cottage. He got inside but did not steal anything; and
Between 1 February 2010 to 15 March 2010, in Wlodawa, the RP broke into a warehouse and stole pipe stops, three pairs of scissors for cheese from cheese pots and 8 tub covers with intent to appropriate them, to total value of PLN 2356 (around £488)."
- a) whether the mental health of the appellant is such that it would be unjust or oppressive to extradite him pursuant to s.25 of the 2003 Act; and
- b) whether extradition was a proportionate interference with the appellant's private and family life pursuant to s.21 of the 2003 Act and Art.8 of the European Convention on Human Rights .
Article 8
"The single question therefore for the appellate court is whether or not the district judge made the wrong decision. It is only if the court concludes that the decision was wrong, applying what Lord Neuberger PSC said, as set out above, that the appeal could be allowed. 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."
"'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 he 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) view on which she has doubts, but on balance considers was wrong, (vi) a view which he 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).'"
"The RP has a mental health condition, specifically the RP has moderate depression. Dr Forrester concluded, that the RP is not currently actively suicidal, however he presents in a category of elevated risk and that if extradition is ordered, the RP's risk of suicide will become high."
"Unlike in the UK, release at the half-way point is not automatic, but depends on Article 77(1) of the Criminal Code which empowers the court to order early conditional release 'only when [the prisoner's] attitude, personal characteristics and situation, his way of life prior to the commission of the offence, the circumstances thereof, as well as his conduct after the commission of the offence, and whilst serving the penalty, justify the assumption that the perpetrator will after release respect the legal order, and in particular that he will not re-offend.'"
"46. I accept that in certain circumstances the fact that a very short period of time remains to be served may be a circumstance that the court will take into account in making its assessment under Article 8 . (See, Kasprzak v Poland [2010] EWHC 2966 (Admin) ; Wysocki v Poland [2010] EWHC 3430 (Admin) .)
47. However, there is no clear information as to how long the appellant would have to serve if he were now return to Poland under the first warrant. The matter was canvassed before me in argument. One complicating factor here is that since the beginning of the extradition proceedings the Appellant has been in custody serving a sentence of 36 weeks imprisonment for an offence of causing grievous bodily harm. It is not clear whether the requesting authority is aware of that or how it would be taken into account. It was common ground before me at the hearing that, taking the most favourable position from the Appellant's point of view, he would have approximately four months left to serve on the first warrant, if the entire time that he spent in custody is deducted from his existing sentence. Even if one could be confident that this is in fact the case, I do not consider that this would tip the balance under Article 8 in favour of the appellant.
48. I agree with the District Judge that the calculation of how long he has left to serve is a matter for the Polish authorities to calculate once he is there, taking into account the time is spent on remand in the United Kingdom. Furthermore it is essentially a matter for the Polish court to determine whether he should be released after serving half of his sentence."
"a. There is a strong public interest in this country complying with its international extradition treaty obligations and not being regarded as haven for those fleeing foreign jurisdictions or seeking to avoid criminal proceedings in other countries.
b. The mutual confidence and respect that should be given to a request from the judicial authority of a Member State.
c. There is a strong public interest in discouraging persons seeing the UK as a state willing to accept fugitives from justice.
d. Decisions of the issuing judicial authority should be accorded a proper degree of confidence and respect."
"a. The RP initially came to the UK in 2008 to live with his sister and her partner. The RP remained in the UK for around 15 months before returning to Poland. The RP has now been resident in the UK since 2013. He lived with his sister and her partner when he first arrived in the UK and she helped him become drug free. Around 3 months ago the RP moved into his own accommodation so that his brother and his family who had moved to the UK from Poland could move in with his sister. The RP continued to see his sister and family almost every day until his remand into custody. The RP has a close emotional bond with his sister, brother and their families. They have all settled into life in the UK. There will be emotional stress to all the family in the UK but particularly the RP's sister, should he be extradited.
b. The RP has a settled intention to remain in the UK.
c. The RP worked at Tool Stream Limited prior to his remand into custody in relation to these matters. He was earning around £1200 per month. The RP is single and he is financially independent. He may have lost this employment due to the fact that he has been in custody whilst these proceedings are ongoing. Even if he has not lost this employment, he will no doubt lose this employment if his extradition is granted however, I have no reason to believe that the RP would not be able to find employment and that he would be able to re-establish himself once this matter has been resolved.
d. The RP has a mental health condition, specifically the RP has moderate depression. Dr Forrester concluded the RP is not currently actively suicidal, however he presents in a category of elevated risk and that if extradition is ordered, the RP's risk of suicide will become high."
Section 25
"(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."
This is a conviction warrant so the term "unjust", which depends essentially on whether circumstances would make a fair trial impossible, is not applicable, but the appellant contends that his extradition would be "oppressive" by reason of his mental health, and in particular the risk of suicide.
"(1) The court has to form an overall judgment on the facts of the particular case: United States and Tollman [2008] 3 All ER 150 at [50] per Moses LJ. (2) A high threshold has to be reached in order to satisfy the court that a requested person's physical or mental condition is such that it would be unjust or oppressive to extradite him: Howes v HM's Advocate [2010] SCL 341 and the cases there cited by Lord Reed in the judgment of the Inner House. (3) The court must assess the mental condition of the person threatened with extradition and determine if it is linked to a risk of a suicide attempt if the extradition order were to be made. There has to be a 'substantial risk that [the appellant] will commit suicide'. The question is whether, on the evidence the risk of the appellant succeeding in committing suicide, whatever steps are taken is sufficiently great to result in a finding of oppression: see Jansons v Latvia [2009] EWHC 1845 at [24] and [29]. (4) The mental condition of the person 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: Rot v District Court of Lubin, Poland [2010] EWHC 1820 at [13] per Mitting J. (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: ibid. (6) Are there appropriate arrangements in place in the prison system of the country to which extradition is sought so that those authorities can cope properly with the person's mental condition and the risk of suicide: ibid at [26]. (7) There is a public interest in giving effect to treaty obligations and this is an important factor to have in mind: Norris v Government of the USA (No 2) [2010] 2 AC 487 ."
"The key issue, as is apparent from propositions (3), (5) and (6), will in almost every case, be the measures that are in place to prevent any attempt at suicide by a requested person with a mental illness being successful. As Mr Watson correctly submitted on behalf the respondent judicial authorities, it is helpful to examine the measures in relation to three stages:
i. First, the position whilst the requested person is being held in custody in the United Kingdom is clear. As Jackson LJ observed in Mazurkievicz v Poland [2011] EWHC 659 (Admin) at para.45, a person does not escape a sentence of imprisonment in the UK simply by pointing to the high risk of suicide. The court relies on the Executive branch of the state to implement measures to care for the prisoner under the arrangements explaining R v Quazi [2010] EWCA Crim 2759 [2011] Crim LR 159 .
ii. Second, when the requested person is being transferred to the requesting state, arrangements made by the Serious Organised Crime Agency (SOCA) with the authorities are requesting state to ensure that during the transfer proper arrangements are in place to prevent suicide in appropriate cases. As Collins J helpfully mentioned in Griffin City of Westminster Magistrates' Court [2011] 1 WLR 270 at paragraph 52, steps should ordinarily be taken in such cases to ensure that no attempt is made at suicide and proper preventative measures are in place. Medical records should be sent with the requested person and delivered to those who will have custody during transfer and in subsequent attention.
iii. Third, when the requested person is received by the requesting state in the custodial institution which he is to be held, it will ordinarily be presumed that the receiving state within the European Union will discharge its responsibilities to prevent the requested person committing suicide, in the absence of strong evidence to the contrary: see Krolik and Ors v Several Judicial Authorities of Poland [2012] EWHC 2367 paragraphs 3-7 and the authorities referred to in Rot v District Court in Lubin, Poland [2010] EWHC 1820 (Admin) at 10-11. In the absence of evidence to the necessary standard that calls into question the ability of the receiving state to discharge its responsibilities or a specific matter that gives cause for concern, it should not be necessary to require any assurances from requesting states within the European Union. It will therefore ordinarily be sufficient to rely on the presumption.
It is therefore only in a very rare case that a request a person would be likely to establish that measures to prevent a substantial risk of suicide will not be effective."
"60. Second, CK seek a makes clear that national authorities and their courts must apply a rigorous yet pragmatic and circumspect approach to the evaluation of evidence. It is not authority for the proposition that the authorities or the courts must accept without question or challenge the evidence of a requested person that his or her condition is so serious that any act or transfer to enable that person face justice in a state where he or she has committed or allegedly committed a crime should suffice to prevent transfer. The ruling in CK is consistent with the approach adopted by the Judge below.
61. Third, it is evident, (cf paragraph [74]) that the Court acknowledge that a transfer could, itself, amount to inhuman and degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights (which reflects Article 3 ECHR ). …
62. Fourth, the judgment provides guidance as to the burden and standard of proof. The initial burden is on the appellant to raise proper evidence, then the burden switches to the State to rebut that evidence. The asylum seeker must (paragraph [75]) adduce evidence of an 'objective character' which is capable of showing '…the particular seriousness of his mental health and the significant an irreversible consequences to which his transfer might lead'. If that burden is met, it does not impose an obligation upon the authorities of a Member State to accept that evidence. The duty on the authority is then to '…assess the risk that such consequences could occur'. The authorities must 'eliminate any serious doubts concerning the impact of the transfer' to the transferred person (ibid paragraph [76]). The assessment is not limited to transfer itself but to all the significant and 'permanent' consequences that 'might arise' (ibid).
63. Fifth, a Member State is entitled to remove a person even where transfer poses a risk to health provided 'appropriate measures' are identified and taken… The appropriate measures will focus upon cooperation between the transferring and receiving states, the accompanying of the transferred person, the making available of proper medical care to prevent the 'worsening' of that person's health and remove the risk of violence by that person during and after transfer, and the ensuring that the transferred person receives adequate medical care upon arrival (ibid CK paragraphs [80] - [83]). An important starting point is the principle of mutual trust pursuant to which there is a 'strong presumption' that another EU Member State will provide all necessary medical conditions (ibid paragraph [70]). The Court was influenced in its analysis by the fact that the applicant had not challenged the adequacy of the provision of medical care in Croatia (e.g. paragraph [71])."
"The approach was confirmed by the court in Wolkowicz (ibid) at paragraphs [7] and [8]. The court emphasised that the 'key issue' was the availability of preventative measures in the requesting state to mitigate the suicide risk. Within the EU there is a presumption that requesting state will possess and deploy such measures."
He then went on to quote para.10(iii) of the President of the Queen's Bench Division's judgment in Wolkowicz to which I have already referred. The Divisional Court in Bobbe emphasised at para.75 that, "even where there is a 'significant risk of suicide' measures in place in the requesting state should remain the focus of the court's enquiry. But this is not the sole focus." As Wolkowicz , CK and Bobbe make clear, the court is also concerned about the measures in place to address the risk of suicide before extradition occurs and during transfer.
"There is no evidence before me that begins to undermine the presumption that Poland will comply with its obligations under the ECHR and there is no evidence that the management of his condition would be impossible in detention."
"If extradition is ordered, I am of a view that it is likely that his risk of completed suicide will become high."
He took this view having regard to the fact that the appellant had self-harmed when he was on remand in prison in Poland at the age of 17 by putting his hand through a glass door. He described this as very serious self-harming behaviour. In addition, the appellant had reported his own belief that he is likely to become suicidal if extradition is ordered and that if he does kill himself it would be by hanging. There was also evidence from his siblings regarding past suicide attempts.
"However, in my opinion a deterioration in Daniel Kruk's mental condition is likely should extradition be ordered. I cannot say that any such deterioration will definitely happen because people can respond in different ways to the situations in which they find themselves, however I do believe that it is likely to happen. In such a set of circumstances, there would be a probable further adverse effect upon his ability to make decisions and he could lose the capacity to understand information relevant to the decision, retain that information, use or weigh that information as part of the process of making the decision, or communicate the decision. This could happen if he developed severe depressive disorder, in which, according to ICD-11 (item 6A70.3) 'the individual is unable to function in personal, family, social, educational, occupational, or other important domains, except to a very limited degree', or if he were to develop symptoms of psychosis (e.g. hallucinations or delusions). In such circumstances, consider it likely that his medical condition would remove his capacity to resist an impulse to commit suicide."
"From the case of Turner , 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'. I find that this is not the case here. This is not the evidence of Dr Forrester, who concluded that the RP's mental condition is 'likely to deteriorate' should extradition be granted, but that he cannot say deterioration will 'definitely happen'. Further, I find on the evidence of Dr Forrester that the mental condition of the RP is not 'such that it removes his capacity to resist the impulse to commit suicide'. Dr Forrester concludes that the RP's mental condition is likely to deteriorate if extradition is granted and there 'would be a probable further adverse effect upon his ability to make decisions…This could happen if he developed a severe depressive disorder…In such circumstances, I consider it likely that his medical condition would remove his capacity to resist an impulse to commit suicide.' However, the RP does not have a severe depressive disorder currently. It is also something that may or may not happen, although Dr Forrester concluded a deterioration is 'likely'.
In any event, no evidence has been adduced to rebut the presumption that the Polish authorities would discharge its responsibilities to provide the RP with appropriate medical treatment whilst in custody and that they would take steps to prevent the RP from committing suicide. In the absence of evidence to the necessary standard that calls into question the ability of the receiving state to discharge its responsibilities or a specific matter that gives cause for concern, it is not necessary to require any assurances from the requesting state within the European Union. I find in the circumstances, that it is sufficient to rely on the presumption that the JA will discharge its responsibilities in relation to the RP."
"Miss Rose, on behalf of the RP, relied on the case of Bobbe v Poland [2017] EWHC 3161 (Admin) , where the Divisional Court confirmed that if in the act of transfer there is a 'real and proven risk of a significant and permanent deterioration of his health' then an argument under section 25 of the Act can be successful, even where there are no systemic flaws in the reception country's healthcare facilities.
I find that this case can be distinguished from the RP's situation. The RP does not currently lack capacity. Dr Forrester states this in the addendum report when he is asked a specific question regarding this by the RP's representatives."
"For the reasons set out above, I do not find that this is a case where there is a substantial risk that the RP will commit suicide. Further, as set out in Gromovs , I do not find that the chances are that the RP in this case will commit suicide "are utterly overwhelming."
a) At para.52 that Dr Forrester's conclusion that the appellant "presents in a category of elevated risk and that if extradition is ordered, the RP's risk of suicide will become high" is not the same as "substantial risk that RP will commit suicide".
b) At para.54 that Dr Forrester concluded the appellant's mental condition is "likely to deteriorate" should extradition be granted, but that he cannot say that a deterioration will "definitely happen".
c) At para. 54, that the appellant's mental condition is not "such that it removes his capacity to resist the impulse to commit suicide" as this is contingent upon a deterioration in his condition which "may or may not happen".
"The mental condition of the person must be such that it removes his capacity to resist the impulse to commit suicide."
This is a question about the nature of the mental condition of the appellant. The position in this case was that the appellant did not have a mental condition that might remove his capacity to resist the impulse to commit suicide. He did not yet have a severe depressive disorder and he was not currently suicidal. He had capacity for his care and decision-making. It was likely that his mental health would deteriorate and if it deteriorated the point where he developed a severe depression disorder, then, according to Dr Forrester:
"He could lose the capacity to understand information relevant to the decision, retain that information, use or weigh that information as part of the process of making the decision, or communicate the decision. This could happen if he developed a severe depressive disorder."
The loss of capacity to resist the impulse to commit suicide was a possibility in this case, and the District Judge made no error in finding that this aspect of the Turner test was not met. In any event, as I have said, there was no evidence that, if he did lose such capacity, that the Polish authorities would not be able to protect him adequately.
Conclusion
MS TOWNSEND: I am very grateful, my Lady. I have drawn up an order in the hope that maybe Mr Kruk will be released today from custody.
MRS JUSTICE STEYN: Yes.
MS TOWNSEND: If I can just show that to my learned friend for a moment and perhaps that can be agreed?
MRS JUSTICE STEYN: Yes, please do.
MS TOWNSEND: My Lady, I have drafted the order in the following terms if I may read this out to you.
MRS JUSTICE STEYN: Yes, I do not know how long it is, whether it is easier—-
MS TOWNSEND: It is not very long.
MRS JUSTICE STEYN: I am happy to hear it then, in that case.
MS TOWNSEND: Thank you.
"Upon hearing counsel on behalf of the appellant and counsel on behalf of the respondent, it is ordered that:
1) The order of District Judge Griffiths on 1 March 2019 to order the appellant's extradition is quashed.
2) The appellant is discharged from the European Arrest Warrant issued on 31 July 2018.
3) The appellant must be immediately released from prison."
My Lady, are you satisfied with that?
MRS JUSTICE STEYN: Mr Ball, is there any concern?
MR BALL: I have no observations. I felt that (3) is plainly a matter for this court to decide, and the order that he be immediately released. I have no observation.
MRS JUSTICE STEYN: I am content with that order.