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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Kruk v Judicial Authority of Poland [2020] EWHC 620 (Admin) (26 February 2020)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2020/620.html
Cite as: [2020] EWHC 620 (Admin)

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Neutral Citation Number: [2020] EWHC 620 (Admin)
Case No. CO/904/2019

HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday, 26 February 2020

B e f o r e :

Mrs Justice Steyn DBE
____________________

Kruk Applicant.
- v –
Judicial Authority of Poland Respondent

____________________

Ms S. Townsend (instructed by Macmillan Williams ) appeared on behalf of the Applicant.
Mr D. Ball (instructed by Crown Prosecution Service Extradition Unit ) appeared on behalf of the Respondent.

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Mrs Justice Steyn DBE:

  1.   This is an appeal against the decision of District Judge Griffiths, made on 1 March 2019, to order the appellant's extradition to Poland. Permission to appeal was granted on the papers by Sir Wyn Williams on 8 August 2019. Poland is of course a Category 1 territory, and so Part 1 of the Extradition Act 2003 ("the 2003 Act") applies. The appeal is brought pursuant to s.26 of the 2003 Act.
  2.   The basis of the application for the appellant's extradition is a conviction European Arrest Warrant ("the EAW") issued on 31 July 2018 by the Regional Court of Lublin, Poland and certified by the National Crime Agency on 28 August 2018. It is based on an enforceable judgment of the District Court in Chelm dated 27 March 2014.
  3.   As the District Judge explained at para.6(d) of her judgment, the EAW relates to two offences as follows:
  4. "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)."
  5.   The appellant was sentenced to two years' imprisonment. The sentence of two years was suspended for five years. It was suspended on the condition that the appellant paid compensation to three of the complainants and complied with the requirements of probation. He signed the document relating to these requirements on 29 April 2014. The appellant breached the terms of his suspended sentence; he did not pay the compensation or keep in touch with probation as required. Active attempts were made between January 2017 and March 2018 to search for the appellant, but they were unsuccessful. Ultimately, information came to light that the appellant might be staying in the UK and the EAW was issued on 31 July 2018. The EAW states that the entire sentence of two years' imprisonment remains to be served. However, the appellant was arrested pursuant to the EAW on 23 November 2018 when he handed himself in at Yeovil Police Station, and he has been in custody in the UK since then. Accordingly, he has served over 15 months of his two-year sentence.
  6.   Ms Townsend, counsel for the appellant, submits that the District Judge ought to have decided two questions before her differently and, had she done so, she would have been required to order the appellant's discharge, namely:
    • 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 .
  7.   In oral submissions, both Ms Townsend and Mr Ball have addressed s.21 / Art.8 first and I shall take the grounds in that order, too. Before I turn to consider the two grounds, I need to address an oral application to admit fresh evidence in the form of a brief witness statement of the appellant dated 12 February 2020. This is updating evidence in circumstances where the hearing before the District Judge took place almost a year ago, so I accept that it did not exist and could not with reasonable diligence have been obtained. But I also need to consider whether, if the evidence had been adduced, the result would have been different, resulting in the appellant's discharge.
  8.   The witness statement is unsigned. No written application to adduce fresh evidence has been made. The appellant states in the unsigned witness statement that he is currently taking medication for depression and that it helps with his sleep. At the time of the extradition hearing, the appellant had been taking medication to help with his sleep. The evidence does not indicate whether the medication now being taken is different to that which he was taking before, nor how long he has been taking it, or the dose. Overall, the evidence does not suggest that the appellant's mental health condition has worsened from the position described by the psychiatrist, Dr Forrester, in the evidence that was before District Judge Griffiths.
  9.   I consider that the test in Hungary v Fenyvesi [2009] EWHC 231 (Admin) is not met. I cannot put any weight on an unsigned witness statement and, even if it were signed, it does not take the case any further. Insofar as the appellant refers to the fact that he has been in custody for 15 months, that is of course something which I can take into account in any event.
  10. Article 8

  11.   In Polish Judicial Authority v Celinski [2016] 1 WLR 551 , Lord Thomas of Cwmgiedd CJ, in a judgment of the court, said at para.24:
  12. "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."
  13.   The Lord Chief Justice had cited the following observations of Lord Neuberger at para.21 of Celinski :
  14. "'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).'"
  15.   I accept that this is the approach that I should take. The question is whether or not the District Judge made the wrong decision and, if not, whether the decision to extradite is now disproportionate having regard to the 15 months that the appellant has served in custody in the UK. First, the appellant contends that the District Judge erred in her assessment of the gravity of the offences. The District Judge said that the offences were "not insignificant". Ms Townsend submits that, although not trivial, the Judge should have found that they were "not serious" and should have addressed them in more detail. There is nothing in this criticism. The District Judge set out the nature of the offending, as I have already outlined, including the nature of the properties burgled and the low value of the items stolen. A two-year sentence of imprisonment, initially suspended, was imposed for these burglary offences. The Judge made no error in describing the offences as "not insignificant".
  16.   Secondly, the appellant contends that the Judge made a factual error in para.61(f) when she said that 'all of the two-year sentence remains to be served'. Although it was accurate to say that that was what the EAW said, by the time of the hearing the appellant had served four months in custody. I accept that it would have been better if the judgment had recognised that a lesser term remained to be served, but at the time, when only four months of the two-year sentence had been served, this was not a particularly weighty factor.
  17.   The third point concerns the question of the impact of the additional time the appellant has served. This is the most important factor and I shall return to it.
  18.   Fourthly, the appellant relies on the impact of Brexit and the possibility that he may not be able to return to the UK and the additional anxiety that this causes him. This was not a factor raised before the District Judge and there is no evidence before me about it. In my judgment, it is not a matter that I can give weight to as it is speculative, based, as it is, on references to statements of policy which are not even before me.
  19.   The fifth point concerns the District Judge's approach to delay. The offences are some 10 years old. There was a period of about five years between the offences and sentence. There is no explanation for this delay which, although he is a fugitive, cannot be laid at the door of the appellant. The passage of time is a significant factor in the circumstances of the case, but the District Judge did take it into account as a factor weighing against extradition.
  20.   The sixth point is that the Judge overstated the support that the appellant would be able to receive from his parents in Poland. The Judge found, having heard from the appellant, that he had a close relationship with his parents with whom he spoke regularly via Skype. Although it is clear that by far his closest emotional support and the person who above all assisted the appellant in ceasing his drug-taking and helping him to obtain employment and live a law-abiding life is his sister, the District Judge did not err in her description of the support available to him from his parents.
  21.   The seventh point is that the Judge did not give enough weight to the risk of suicide becoming high. The District Judge said at para.62 of her judgment:
  22. "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."
  23.   So, it is clear that this was a factor that was taken into account as weighing against extradition. In my judgment, the District Judge was not wrong to find that it was not a disproportionate interference with the appellant's Art.8 rights, and those of his family in the UK, to extradite him. Nevertheless, that was almost a year ago. The appellant has now served more than 15 months of his two-year sentence. By the time he reaches Poland, if he is extradited, he would have a little over eight months left to serve if he were required to serve his entire sentence.
  24.   In Janaszeck v Poland [2013] EWHC 1880 (Admin) , Mr Justice Foskett received evidence regarding the early release provisions in Poland. He said at para.41:
  25. "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.'"
  26.   Ms Townsend submits that it is likely, applying the criteria described, that the appellant would be released pursuant to these provisions. He has only one conviction in Poland dating back 10 years to when he was 19 years old and struggling with drug addiction. His only other conviction in the UK pre-dates the extradition offences and consists of minor driving offences committed when he was only 17, for which he was fined, and which ought not to be held against him at all. Within a short period after coming to the UK in 2013 he managed to stop using drugs. He has been employed throughout his time in the UK. He has committed no offences since the extradition offences.
  27.   Mr Ball, on behalf of the respondent, draws my attention to Zakrzewski v Poland [2012] EWHC 173 (Admin) in which Lloyd Jones J, as he then was, said:
  28. "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."
  29.   On the other hand, Ms Townsend has drawn my attention to Chmura v District Court of Lublin, Poland [2013] EWHC 3896 (Admin) , in which Ousely J allowed an appeal where five months remain to be served in circumstances where he considered that it would be hard to believe that early release would not be granted. The circumstances described, in terms of turning over a new leaf since offending at the age of 19, are remarkably similar to this case save that here there is the additional very important feature of a high risk of suicide and of self-harm. In addition, in Jesionowski v Poland [2014] EWHC 319 (Admin) , Wilkie J adopted the same approach as in Chmura , albeit there was much shorter period of the sentence remaining to be served.
  30.   In my judgment, the fact that the appellant has served 15 months (that is, well over half) of his sentence is a weighty factor in the Art.8 balance. He has not gone unpunished for the offences he committed 10 years ago or for his failure to comply with the conditions of his suspended sentence.
  31.   There are important factors weighing in favour of extradition. As the Judge rightly observed at para.61 of her judgment:
  32. "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."
  33.   This is a conviction EAW and the offences are not trivial. The appellant has some family in Poland with whom he has a good relationship and, very importantly, as the District Judge found, he is a fugitive from justice.
  34.   On the other hand, as the District Judge found at para.62:
  35. "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."
  36.   The appellant's mental health is a particularly significant factor in this case, having regard in particular to the psychiatrist's evidence regarding the appellant's serious self-harm when he was in custody in Poland and the evidence that he has attempted suicide in the past. The fact that the offences were committed 10 years ago, and the five-year period between commission of the offences and sentence is unexplained, diminishes the public interest in extradition to some extent. That early period of delay cannot be laid at the applicant's door, albeit he cannot pray in aid the subsequent delay when active attempts were clearly being made to look for him. In addition to these factors, the appellant has a clean record since he came to the UK in 2013 and indeed throughout his adult life in the UK. He has served significantly more than half his sentence. It is likely, in my judgment, that the Polish courts would find the appellant eligible for early release. His sentence was originally suspended. He has served more than 15 months' imprisonment, which is a substantial period of punishment for the offences committed by him when he was 19 years old. Since he returned to the UK in 2013 he has turned over a new leaf, committing no further offences, stopping his use of drugs and engaging in employment. In my judgment, on the specific facts of this case, the period that the appellant has spent in custody, taken together with the other factors to which I have referred, including in particular his mental health and his clean record since the age of 19, tips the balance in favour of a finding that extradition would be contrary to Art.8 .
  37. Section 25

  38.   Turning then to the second ground, s.25 of the 2003 Act reads, under the heading "Physical or mental condition":
  39. "(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.

  40.   In Turner v Government of the USA [2012] EWHC 2426 (Admin) at para.28, Aikens LJ analysed the authorities and set out a criteria for finding that extradition would be oppressive:
  41. "(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 ."
  42.   This approach was described by the Divisional Court by Sir John Thomas, then President of the Queen's Bench Division, and Burnett J, as he then was, in Wolkowicz v Regional Court at Bialystok, Poland [2014] 1 WLR 2402 at para.9, as a succinct and useful summary of the approach the court should adopt to s.25 and s.91 of the 2003 Act. Sir John Thomas, giving the judgment of the court, emphasised at para.10:
  43. "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."

  44.   The appellant submits that there is now a "slightly less stringent test" to that in Turner and that there has been a "change of emphasis" since Turner and Wolkowicz . In support of this proposition, Ms Townsend relies on a decision of the Court of Justice of the European Union, C.K. and Ors v Republika Slovenija C-578/16 PPU [2017] 3 CMLR 10 ; a decision of the Divisional Court in Bobbe v Regional Court in Bydgoszcz [2017] EWHC 3161 (Admin) ; and four decisions of single judges in which extradition has been found on the facts to be oppressive, namely Debiec v District Court of Piotrkow Trybunalski (Poland) [2017] EWHC 2653 (Admin) , Magiera v District Court of Krakow, Poland [2017] EWHC 2757 (Admin) , Cash v Court of First Instance, Strasbourg, France [2018] EWHC 579 (Admin) and XY v Netherlands [2019] EWHC 624 (Admin) .
  45.   In my judgment, it is clear that the applicable test is as set out in Turner and Wolkowicz . In Bobbe , the Divisional Court considered that " CK does not materially alter the law". CK concerned the position of a Syrian family comprising a husband and wife and, in due course, an infant child seeking refugee status under the Dublin III regime. The Divisional Court in Bobbe accepted that the judgment in CK was capable of providing relevant guidance regarding the application of fundamental rights to the extradition regime, while emphasising that the purposes behind the extradition and Dublin III regimes are quite different.
  46.   In Bobbe , Green J observed:
  47. "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])."

  48.   Addressing the law regarding the risk of suicide in extradition cases, Green J at para.73 cited para.28 of Turner and then said at para.74:
  49. "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.

  50.   In Blaszak v Poland [2016] EWHC 2412 paras.15 and 18, the High Court again affirmed the principle set out in Wolkowicz and Krolik & Ors v Several Judicial Authorities of Poland [2012] EWHC 2357 (Admin) that there is a strong presumption that an EU state will provide adequate protection against suicide risk. This, too, was a case concerning Poland. As Hickinbottom J noted at para.18:
  51. "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."
  52.   In Debiec , Knowles J was at pains to emphasise that his decision was intensely fact specific and set no precedent (see para.45). Similarly, Cash , XY and Magiera do not establish any new principles.
  53.   In this case, the appellant relied at the extradition hearing on a psychiatric report dated 7 January 2019 and an addendum report dated the 10 February 2019 prepared by Dr Andrew Forrester. The evidence was not challenged. The District Judge accepted Dr Forrester's evidence that the appellant presents with a current diagnosis of moderate depressive disorder. He was not actively suicidal, but he was in an elevated risk category because of his past history of drug use and his current moderate depressive disorder and, having regard to the evidence regarding self-harm, Dr Forrester said:
  54. "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.

  55.   In his addendum report, Dr Forrester gave evidence that when he assessed the appellant on 24 December 2018, he had the required capacity within the meaning of the Mental Capacity Act 2005 to make decisions in respect of his care and treatment. He was able to consider information as part of the process of making a decision and to communicate the same. At para.8 of his addendum report, Dr Forrester said:
  56. "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."
  57.   The District Judge said at paras.54-55 of her judgment:
  58. "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."
  59.   The appellant submits that the District Judge erred in applying the legal test relating to s.25 . First, Ms Townsend submits that the District Judge erred in distinguishing Bobbe . The District Judge said at para.52:
  60. "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."
  61.   The appellant acknowledges that the facts of Bobbe are distinguishable. The appellant has mental capacity. But the appellant relied on Bobbe at the extradition hearing in support of the submission that a s.25 argument can be well-founded even where there are no systemic flaws in the reception country's healthcare situation. I agree with Mr Ball, counsel for the respondent, that the appellant and the District Judge appear to have been talking at cross purposes in relation to this. The appellant's criticism is that the Judge should not have sought to distinguish Bobbe . It is right that a considerable proportion of Bobbe deals with the issue of when it might be unjust or oppressive to extradite someone who is unfit to plead with no prospect of becoming fit to plead. To this extent, then, Bobbe is of limited assistance. This was not a fitness to plead case and Bobbe was distinguishable on this basis. Equally, it is right that Bobbe does provide relevant guidance in this case but, importantly, the guidance does not assist the appellant. The guidance is that CK does not alter the law under s.25 . The guidance remains that the focus of the court's enquiry must include looking at whether the facilities for addressing suicide risk in the receiving state are adequate. As the Judge observed, there was no evidence to the contrary.
  62.   Secondly, the appellant contends that the District Judge misapplied the burden of proof. The appellant submits that, as the evidence of Dr Forrester was unchallenged, it was not sufficient for the judicial authority to rely on the presumption without considering the concerns in respect of this specific individual. The District Judge ought to have found that the evidence met the initial burden on the appellant to raise proper evidence and that the burden then switched to the respondent. However, the appellant has not adduced any evidence to suggest that Poland would be unable to provide adequate safeguards for him. There is no challenge to the ability or willingness of the Polish authorities to provide appropriate medical and other care and treatment to obviate a suicide risk. Bobbe does not establish that if a requested person demonstrates that he presents a substantial risk of suicide, but presents no evidence to challenge the adequacy of medical care in the requesting EU Member State, nevertheless, an EU Member State needs to demonstrate in each and every case that it has adequate safeguards in place to prevent suicide. This was not a case where the Polish authorities would have had to deal with health issues which were particularly complex or out of the ordinary.
  63.   Thirdly, the appellant submits that the District Judge erred in applying the test in Gromovs v Prosecutor General's Office of Republic of Latvia [2014] EWHC 4155 (Admin) . The District Judge cited Gromovs at para.49 and then said at para.56:
  64. "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."
  65.   It seems to me that Gromovs does apply at least a gloss, and one might say a heightened test, compared to the applicable test as per Turner and Wolkowicz . The risk does not have to be "utterly overwhelming". The well-established test is whether there is a substantial risk that the appellant will commit suicide. However, in this case, it is clear that the District Judge found that there was not a substantial risk that the appellant will commit suicide applying the Turner / Wolkowicz test, and so, in my judgment, her reference to Gromovs is not of any consequence.
  66.   The appellant's fourth point is that the District Judge erred in her application of Turner . Ms Townsend contends that the District Judge made and appeared to place weight on the following findings in the course of her judgment:
  67. 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".
  68.   The assessment is directed at the question whether the risk of the appellant succeeding in committing suicide, whatever measures are in place to prevent him doing so, is substantial.
  69.   The evidence before the District Judge was that the appellant suffers from moderate depression for which he was not taking any medication and that he was not currently suicidal. Dr Forrester's opinion was that it was likely that the risk would become high if extradition was ordered. In my judgment, on the evidence before her, the District Judge was right to determine that there was not a substantial risk of the appellant succeeding in committing suicide. Even if the risk of him seeking to do so was likely to become high, there was no evidence to suggest that the risk could not be managed by the Polish authorities.
  70.   I do not consider the District Judge can be criticised for referring to the fact that a deterioration in the appellant's mental condition would not "definitely happen". This does not suggest that the District Judge was applying a test of certainty. She was referring to the evidence of Dr Forrester who expressed uncertainty, in precisely those terms, as to whether the appellant's mental condition would deteriorate.
  71.   Nor do I consider that the District Judge erred in her consideration of the issue of capacity. Turner at para.28 states:
  72. "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

  73.   I have found that the applicant's extradition would be disproportionate in the circumstances as they now stand contrary to Art.8 . An important factor in that assessment is the likely deterioration in the appellant's mental health if he were to be extradited and the high risk that he would seek to commit suicide and to self-harm. But for the reasons I have given, in my judgment, it has not been established that the applicant's extradition would be oppressive contrary to s.25 of the 2003 Act. Accordingly, the appeal is allowed on the ground that the appellant's extradition would be incompatible with Art.8 .
  74. 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.

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