England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICEcASE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice
		19 October 2021

MR JUSTICE HOLMAN:

1. This is an appeal from an order made by District Judge Angus Hamilton in the Westminster Magistrates' Court on 27 October 2020 for the extradition of the appellant to Romania.
2. I wish to stress at the very outset of this judgment that this case, like similar cases, is very fact-specific indeed. I do not desire or intend by anything which I say in this ex tempore judgment to give the slightest steer for any other case. Further, I say at the outset that I have found the decision at the heart of this case one of exceptional difficulty.
3. The appellant is a woman now aged about 45. She has been living in England since 2015. She was, apparently, in a settled relationship with a partner here, who is himself Polish, and she also has an adult daughter who lives independently here. The appellant was arrested on 11 December 2019 and has been continuously in custody ever since.
4. The procedural situation, both in the Romanian courts and also in relation to the European Arrest Warrants in this case, is somewhat complex. The appellant was convicted, on different occasions, of offences involving human trafficking and profiting from prostitution. She appears initially to have been sentenced to aggregate sentences of 18 and a half years' imprisonment. Later, however, those sentences appear to have been amalgamated in some way and replaced by a single sentence now of seven years' imprisonment, all of which remains to be served, less the time she has spent in custody here in England.
5. Initially, there were four conviction European Arrest Warrants, but during the course of the proceedings here in England they were later replaced by a warrant known as "EAW5" upon which, alone, the order for extradition was made. This somewhat complicated procedural history has, frankly, left me in some uncertainty as to the true scale of the offending in this case, or the overall period of it.
6. There appear, however, to have been about five women victims, one of whom is expressly stated in the warrant to have been aged 15 at the material time. The offending continued certainly into the year 2011, so the offending in relation to which extradition is sought is now about ten years ago.
7. The facts of the offending are, essentially, that the appellant, acting together with others, lured and transported the victims into the Czech Republic on the pretence that they were being taken to a good and better life in Germany. Once in the Czech Republic, the victims were forced to subject themselves to prostitution in a particular nightclub. When they refused to prostitute themselves, the victims were threatened with beating. The appellant and another offender threatened the victims by telling them that, if they were going to call the police, they - that is, the appellant and her accomplice - would kill their children and burn their houses. The appellant hit victims several times for not, as it was put, "going with the clients". The victims were expected to work for many hours every day and night, and the victims themselves were given very little of the proceeds of the prostitution. According to the warrant or some further information which was supplied,

"It was considered that the victims are easily influenced persons - young, with a low level of education and training."

On any possible view, this was very serious offending indeed. The crimes are vile; and although there is no evidence in these proceedings from any of the victims, their suffering is likely to have been very great.

8. The district judge carefully considered the evidence, including the appellant's own evidence, and clearly concluded that she was a fugitive when she travelled to, and remained in, England. He said at paragraph 46 of his judgment,

"There is an overwhelming inference that when the appellant returned to the United Kingdom after her trial in 2015 she did so knowing full well that she had a substantial overall custodial sentence to serve and that the appeals against the relevant sentences had all failed. The equally overwhelming inference is that her return to the UK in 2015 was to avoid those sentences … Even on her own account [the appellant] left Romania knowing that she had a custodial sentence to serve and knowing that there were outstanding cases to be resolved and yet she made no attempt to inform the Romanian authorities of her address in the UK or to keep in touch with her Romanian lawyer. I am consequently sure that [the appellant] is a fugitive."

The district judge immediately followed that passage by adding,

"As a result of this finding it is not open to [the appellant] to rely on any issue relating to the age of the relevant offences in support of any Article 8 argument."

9. On behalf of the appellant today, Mr Malcolm Hawkes, who also represented her before the district judge, submits that that last sentence by the district judge contains an error of law or approach. Properly speaking, the effect of a requested person being a fugitive is to reduce the weight which may otherwise attach to a long period of delay. It is not correct boldly to state that "it is not open" to her to rely on any issue relating to the age of the relevant offences. To my mind, however, this is, in the context of this case, no more than a detail or a footnote, and it does not weigh with me at all in my overall consideration of this case.
10. Before the district judge, Mr Hawkes, very properly, relied upon a number of grounds of resistance to extradition. Several of these were rejected by the district judge and there has not been any grant of permission now to appeal from them. That includes, indeed, his finding that the appellant is a fugitive.
11. That leaves two grounds of appeal for which permission to appeal has been granted. The first is a ground under section 25 of the Extradition Act 2003. The second is a ground under Article 8 of the European Convention on Human Rights.
12. I will consider, first, the ground under section 25. That provides as follows,

"25. Physical or mental condition

(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."

In this case all the reliance is placed upon the proposition that it would be oppressive to extradite the appellant, not that it would be unjust,

13. There is considerable jurisprudence in relation to the meaning and application of "oppressive" where it appears in that section, and specifically, where it is alleged that there is a significant suicide risk. I do not, however, propose to quote from that jurisprudence in this very fact-specific judgment. I do, however, stress the very important point that Mr David Ball, who appears today on behalf of the Romanian authority - but I stress did not appear before the district judge - makes at paragraph 45 of his skeleton argument dated 17 October 2021. He says there, very importantly,

"First and foremost, when considering the question of oppression it cannot be viewed solely with reference to the appellant alone. … It cannot be looked at in the abstract. Instead, it has to be looked at with full regard to the seriousness of the offending … "

That is clearly right and very important. The great difficulty for me in this case is balancing the gravity and seriousness of this vile human trafficking and forced prostitution, against the impact which her current imprisonment and the prospect of extradition has had, and continues to have, upon this particular appellant.

14. At the heart of the case, under both grounds of appeal, both under section 25 and also Article 8, is the mental ill health of this appellant and the manner in which she has reacted to the threat of extradition and the prospect of prolonged imprisonment in Romania. Woven into that case and argument is the unchallenged evidence from this appellant that, throughout her lifetime in Romania, she has experienced and suffered from grave discrimination due to her Hungarian ethnicity. In her first statement, which was before the district judge, this appellant describes in, frankly, tragic terms the lifelong abuse which she experienced generally as a Hungarian being brought up and living in society in Romania. She further describes that, on the occasion of her arrest and investigation, she suffered extreme police brutality, which she attributes, at least in part, to her Hungarian ethnicity. She says at paragraph 17 of the statement,

"During my time in prison and at court during the proceedings which underline the EAWs I was assaulted by the police investigators. On one occasion I was in a small interrogation room. I had my head pushed back to hit the wall. I was punched in my stomach several times. Once I was put out of a window, being held leaning out of the window and told if I did not confess, they would drop me out of the window … The police would eat food in front of me and tell me I would never eat anything like what they were eating again. I am sure that they did this to me because of my Hungarian heritage. The officers would use denigrating terms to me like 'hairy tongue' [which she had earlier described as a regular form of abuse of Hungarians in Romania]. Even the prosecutor once said to me that I would die in prison … This was not the first time I had been abused by the police. For example, in 2001 during an investigation, when I was arrested for something else unrelated, the police beat me using a rolled-up newspaper on the soles of my feet and they also pulled off a nail. This kind of violence was used repeatedly during that time."

15. In that same first statement, the appellant described how she suffers from anxiety and claustrophobia. She describes how she had tried to harm herself in the past, including by trying to throw herself in front of a train and by overdosing on medication. She concluded her first statement by saying,

"When I think of going back to Romania, I feel fear, I feel physically sick, I feel panic, I think I will never see my daughter or partner again. If I do not kill myself, I will die there. I have lost 11 kilos here in prison in the UK. I will simply die in Romania. I feel despair. I am scared for my future and do not think I will cope. I currently cannot eat cooked food as it upsets my stomach and I vomit."

16. There was medical evidence from a consultant clinical psychologist, Dr Marzio Ascione. His first report, which was before the district judge, was dated 27 July 2020 and based on an assessment on 6 May 2020. His opinion is contained within paragraphs 67 to 73, where he said,

"[The appellant] is currently suffering from mixed presentation of severe depression and severe anxiety. The risk of self-harming and attempted suicide is high and would require attention and professional intervention ideally by a psychiatrist and a clinical psychologist while she is detained. In case of her being extradited to Romania her mental health would most certainly exacerbate as she would be away from her family and protective factors [which he had earlier identified as her partner and her daughter]. The current risk of self-harm and suicide will most likely increase if exposed to psychological and physical abuse in a Romanian prison. Her mental health may deteriorate to a point that she would be unable to control her impulses to commit suicide … It is my opinion that she would be constantly exposed to an environment perceived harmful and unsafe because of her account of her ethnic discrimination and abuses. This would most likely lead to lack of proper engagement of the mental health services she needs and would further increase her current risk of self-harm and suicide. The potential of not being able to have contact with her family in case of her being extradited, could be a precipitating factor that would lead to higher risk of suicide …"

At paragraph 73, Dr Ascione said,

"Studies confirm that the most significant risk factors of suicide among prisoners consist of mental illness - particularly depressive disorder, psychological states of depression and hopelessness, prior suicide attempts, a pre-incarceration history of psychiatric disorder … and a recent psychosocial stressor acting as a precipitant."

As Mr Hawkes commented, all those factors are, on the history, engaged in the present case.

17. Dr Ascione also described at paragraphs 37 to 39 of his report that he had carried out a particular test known as a "Test of Memory Malingering (TOMM)" and that the test results

"are usually considered an indication that the individual is not trying to exaggerate her symptoms in absence of cognitive impairment."

18. It is very important now to stress that, at the hearing before the district judge, Dr Ascione was personally present. He had been asked to attend in order that he could be cross-examined on behalf of the requesting authority, or indeed to be available for questioning by the district judge. However, counsel who appeared at that hearing on behalf of the judicial authority (not Mr Ball) did not seek to ask any questions of Dr Ascione at all, nor did the district judge. In other words, there was at the hearing no challenge to the evidence or opinion of Dr Ascione nor to the basis upon which he had reached that opinion.
19. Accordingly, it came as a matter of great surprise to Mr Hawkes when, about three weeks later, he saw the written judgment of the district judge. The district judge correctly said at paragraph 25 of his judgment that

"The evidence of Dr Ascione was not challenged by the JA and his written evidence was therefore submitted to the court."

But the district judge then went on to say at paragraphs 26 and 27,

"There is a marked difference between the account of her depression given by the requested person to Dr Ascione and that given to me. For example, in her proof of evidence the requested person refers to two suicide attempts in the past - the first by attempting to throw herself in front of a train and the second by taking an overdose. Her account to Dr Ascione however refers to taking an overdose of medication 'on multiple occasions' and to seven attempts at suicide and also to attempts of suicide and self-harm in HMP Bronzefield. These discrepancies were not explored or explained during the hearing. No information was requested from the prison to confirm the requested person's account. Dr Ascione did conduct a test to try to establish if the requested person was malingering and concluded that as a result of that test that it was very unlikely that she was."

20. Pausing there, that passage and those observations do appear to have been unfair to the requested person and not justifiable on the state of the evidence as it was. There had been an opportunity to ask questions of Dr Ascione, who was present at the hearing, about the asserted differences or discrepancies, but neither counsel for the judicial authority nor the district judge himself chose to do so. Equally, there had been an opportunity to ask the requested person, who did give oral evidence, about the suggested differences and discrepancies, but she was not asked about them either. Mr Hawkes has confirmed today that it is indeed the case, as the district judge himself said, that "these discrepancies were not explored or explained during the hearing." That being so, it is unfair, with respect to him, that the district judge made those comments and criticisms, which do seem to have later pervaded his approach to the evidence of Dr Ascione. The reality of the matter is that Dr Ascione was, and is, the only expert witness in the case, and he has given the expert opinions which he has, which, frankly, should not have been gainsaid by the district judge and cannot be gainsaid by me.
21. Further, the district judge commented that "no information was requested from the prison to confirm the requested person's account." But, in fact, Dr Ascione had made clear in his written report, at paragraph 55, that amongst the material considered by him was "medical notes obtained from HMP Bronzefield." It is true that that material was not placed before the district judge, but the information had been requested from the prison, and had been obtained and had been seen by Dr Ascione.
22. Finally, in that passage the district judge refers to the test which was conducted to establish if the requested person was malingering. He correctly records that Dr Ascione concluded that it was very unlikely that she was. Yet the thrust of the passage as a whole is that, in the view of the district judge, the requested person was at least fabricating or exaggerating some of her case. There is, however, no adverse finding anywhere in his judgment as to the quality of the requested person's evidence as a witness, save that she gave a somewhat vague account in relation to the course of the long proceedings in Romania.
23. Towards the end of his judgment, under the heading of his consideration of section 25 and oppression, the district judge recorded his "Findings". He said at paragraphs 63,

"I have already indicated my concern over the significant and unexplained difference between the account given by the requested person about her history of self-harm to Dr Ascione and that given to me. The difference is indicative of a willingness to exaggerate a history of self-harm with the intention of receiving a more sympathetic medical report. However I must balance this concern against Dr Ascione finding that his test results indicate a person who is not trying to exaggerate her symptoms."

It seems to me, with respect to the district judge, that the unfairness that I have identified in relation to the earlier passages at paragraphs 26 and 27 pervaded those observations in paragraph 63. Similarly, at paragraph 64 the district judge said,

"I have also expressed concern about the lack of information regarding the requested person's mental health from HMP Bronzefield. The prison should, if the requested person's account to Dr Ascione is true, have been able to provide confirmation of the incidents of self-harm she has referred to …"

24. As I have said, Dr Ascione did have all that information. Since neither counsel for the judicial authority nor the district judge raised any point about differences or discrepancies during the course of the hearing, Mr Hawkes did not take him to the very detailed material available from the prison.
25. At paragraph 65, the district judge said,

"In considering whether extradition would be oppressive in the requested person's case, I have looked in particular at Dr Ascione's comments on the likely impact of extradition. Dr Ascione reaches one firm and one speculative conclusion on this point. First, he concludes that the requested person's mental health would most certainly exacerbate as she would be away from her family and protective factors … The speculative conclusion is that the current risk of self-harm and suicide will most likely increase if exposed to psychological and physical abuse in a Romanian prison."

At paragraph 67, the district judge returned to the same theme and stated,

"As previously stated, Dr Ascione's second conclusion about the impact of extradition on the requested person's mental health is speculative and dependent on whether the requested person will experience abuse in a Romanian prison …"

26. It seems to me that, in his approach to the evidence of Dr Ascione, the district judge was there being unjustifiably dismissive. Few experts can state with certainty that something will or will not occur. Judges, indeed, decide most cases on a mere balance of probability. But that is not any basis or justification for, somewhat dismissively, describing the opinion of an expert as "speculative".
27. When the district judge had earlier considered the balance of factors in relation to the argument under Article 8, he said at paragraph 56,

"On the other side of the scale I take into account the following factors which point, albeit rather weakly, against extradition being granted."

Then at paragraph 56(c), he said,

"Extradition will very likely cause some emotional and psychological harm to the requested person as explained by Dr Ascione."

In my view, merely to say that extradition will very likely cause "some emotional and psychological harm" was seriously to understate the case and evidence of the requested person and the evidence of Dr Ascione.

28. A year has now passed since the decision and judgment of the district judge. During the course of that year further evidence has been assembled and produced. Since this all concerns a person's serious mental ill health and the possibility or probability of a suicide risk, it seems to me that I must inevitably admit it into evidence.
29. There are altogether four strands of the evidence. The first is a further statement made by the appellant on 8 June 2021. It is, frankly, very distressing to read, and as I commented this morning during the argument, it reads almost as a suicide letter or note. It may, of course, be exaggerated or, frankly, fabricated for the purposes of this case, but I have to bear in mind the opinion of Dr Ascione after tests with regard to malingering. It is far too long to incorporate the whole statement into this judgment, but I will narrate certain passages.

"I am sitting in my prison cell with nothing more than a wish to die and to stop this existence once and for all. I am sick of every single moment that I am going through. My brain and my body are paralysed by the same negative thoughts and feelings that I have all the time, without even one single moment of relief. I can't sleep, I can't eat, I can't focus, I am unable to pay attention or to enjoy anything that I do or anything that happens around me. … Nothing matters anymore and everything is nothing more than a burden. Everything is dark, sad, meaningless and irritating. I have had enough of this, inside I am already dead and broken, I don't know why I still exist. I need a rope to hang myself. I need a chasm to jump down into. I have been put in this room with no way out and now I am a sick, wrecked and useless person in the cage without any hope for a change. Why am I in this hell? There is no answer to this question so the only answer for me is to end this. One way or another, but this is the only thing left that I still have to do in my miserable existence … Ocean of tears has drained my will to live to its last drop …"

She concludes the statement by saying,

"So please give me a way to end my life and never open my eyes again. What's the point to look out into the space with my dead mind if there is nothing out there to look at, except emptiness filled with nothing more than a pain. I cannot be at peace and I cannot agree to this. I couldn't after already one and a half years and I never can. I became a useless piece of trash and my place is at a garbage dump. Forgotten and left for decomposition. In my heart I have already said goodbye to the love of my life, to my family and friends I used to have, to this world. I am ready to disappear."

30. There is, additionally, a statement, dated 9 May 2021, by a witness, Luminita Ilie, who describes that she was a cellmate of the appellant at HMP Bronzefield from October 2020 to the end of April 2021. That period, of course, is subsequent to the hearing in front of the district judge, which took place in September and just into 5 October 2020. Luminita Ilie says of the appellant,

"She almost never slept, sometimes when I woke up in the middle of the night she was still sitting there on her chair, looking into space and thinking, often crying at the same time. She was almost not eating at all. She was losing weight constantly and when she forced herself to eat something many times she had to vomit after a few minutes. She was crying for hours every day. No amount of comforting her from my side was making things better … Everybody, including me had to try hard to get anything out of her. She didn't see a point to talk about her depression because she recognised her situation was terrible and hopeless and that there is no other exit than to end her life. She called her fiancé many times a day. He is the love of her life and I think the only reason why she is still alive is because they are still a couple and he tells her that there is a chance that she will not be extradited and that they are going to be together again soon …"

Later she says,

"She was telling me how much she wants to die and that she will kill herself sooner or later, because she can't take no more of what she has been going through. Finding the way to end her life was always on her mind. … Many times I had to stop her from trying different ways of harming herself, like scratching her hands, arms, feet etc. deep enough to make it bleed … While I was there watching her, at least I knew that if she will try to harm herself I will try to stop her. Now after I have left the prison I am worried about her even more … She told me that she has lost her faith, that she felt abandoned and condemned to destruction. She can't see a way out, that is why she is determined to find her own way out from this life and this world. …"

31. There is also a further statement from the appellant's partner, dated 7 May 2021. He says in that,

"I can clearly see that [the appellant] is literally slowly dying in prison. Every day, every week, every month I am observing how her life energy constantly decreasing. The way she talks sounds like she has almost no power left … Her will to die, to finish the suffering she is going through is getting stronger and stronger. Not only has she made it clear from the beginning of being in prison, she is planning to end her life one way or another, but I can also see that her lack of hope and basic inner will to live is so strong that she is actually dying from the inside, like a drying plant that soon will turn into lifeless matter. …"

The partner had given oral evidence to the district judge and there is no finding or indication that the district judge found him other than a truthful and reliable witness.

32. Finally, there is a further report from Dr Ascione. The report is dated 8 October 2021, but is based upon a further assessment carried out on 16 June 2021. At paragraph 23 he said,

"I have assessed [the appellant] by a video link at HMP Bronzefield on 16 June 2021 with an interpreter. Her appearance was dishevelled. She was oriented to time, place and person. … She continued to have suicidal thoughts and planned to self-harm over the last year in prison and since my assessment in May 2020. She presented with psychomotor retardation. She was objectively and subjectively depressed and moderately anxious. She gave me a description of symptoms of depression …"

which he then describes. He records at paragraph 25 that the appellant's keyworker had confirmed that her weight in prison had dropped from 68 kilogrammes on arrival to 52 kilogrammes at the date of that assessment or report. He observes,

"This may be the result of loss of appetite which is consistent with her depressive presentation."

Dr Ascione concludes at paragraphs 54 and 56 of his report that,

"[The appellant] is still suffering from mixed presentation and severe depression and severe anxiety. The risk of self-harming and attempted suicide is still high and requires attention and professional intervention … Studies confirm that the most significant risk factors of suicide among prisoners consist of mental illness …"

repeating what he had said in his first report.

33. As I have described and identified, there were, in my view, errors in the judgment or approach of the district judge in this case. In particular, his judgment as a whole tends to understate or side-line the impact of the evidence of Dr Ascione and seriously understates the effect of that evidence at paragraph 56 (c), which I have quoted above.
34. In addition to those errors on the part of the district judge, I do have before me today the further or fresh evidence which I have now described and from which I have quoted at some length. It seems to me that, in all those circumstances, I must today make a judgment of my own. This is an appeal under section 26 of the Extradition Act 2003, and section 27 of that Act describes the powers and duties of this court on appeal. It has the effect that the court may only allow the appeal if the conditions in subsection (3) or subsection (4) of section 27 are satisfied.
35. The conditions in subsection (3) are in point to the extent that there were errors in the judgment of the district judge, but the conditions most in point in the present case now are those in subsection (4) which are that:

"(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;

(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;

(c) if he had decided the question in that way, he would have been required to order the person's discharge."

36. Evidence is available to me that was not available at the extradition hearing, and I need to consider whether the district judge would have been required to order the appellant's discharge if he was considering this matter today and in the light of all the evidence as it is before me.
37. On the one hand in this case there is the great gravity of the crime, which I have described as "vile" and from which I do not in any way resile. Additionally, this appellant came here and remains here as a fugitive. On the other hand, in considering section 25, the court had to consider, and I now have to consider, the extreme effect of imprisonment and the prospect of extradition on the appellant's mental health and state. I do take into account, also, that the appellant has now served almost two years in prison here in England, including during the period of COVID-19 restrictions, when it is widely recognised that the effect of incarceration and unusually long confinement has made imprisonment even more unpleasant than it always is. Two years is no substitute for seven years' imprisonment, but the fact of the matter is that, even if I allow this appeal, order her discharge and quash the order for extradition, this appellant will not have gone wholly unpunished for her crimes.
38. Viewing all the evidence in the round, and I hope giving the heavy weight that must be given to the gravity of the offending and fugitive status, I have, nevertheless, concluded in this case that it would be oppressive to extradite this particular appellant in view of her long, current and predicted future mental condition. I am necessarily considering this case now in October 2021 and, in my view, if the district judge was hearing this case now, a year on from when he did hear it, he would have been required, for the same reasons, to order her discharge. Section 25 is not limited to suicide and suicide risk, but concerns oppression. In my view there is evidence here of the mental destruction of a human being, and that is oppressive.
39. That being my conclusion in relation to section 25 and oppression, it is not necessary to go on to give separate and discrete consideration to the ground based on Article 8, nor to the issue in this case, to which I have not yet referred, of the continuing impact of extradition upon the appellant's partner, who is said to be suffering serious mental ill health as well. That is evidenced by a report dated 15 October 2021 from a consultant psychiatrist, Dr Hugo de Waal.
40. I wish to make crystal clear that my reason for allowing this appeal is not in any way based upon the impact of extradition upon the partner. He may or may not have been aware of her grave offending and of her criminal forensic history when he formed a relationship with her. But he is fully adult and, if it was not oppressive to extradite her, as I have ruled that it is, then I would not have regarded the position of the partner as outweighing extradition in this case.
41. For these reasons, I propose to allow this appeal, to order the discharge of the appellant, and to quash the order for her extradition. I am deeply conscious that, in reaching this decision, I may have shown to the appellant a degree of mercy which she may never have showed to her victims.