APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Clarke Lord Menzies	[2012] HCJAC 33 Appeal No: XC233/11 OPINION OF THE LORD JUSTICE GENERAL in APPEAL by MACIEJ MAZIARSKI Appellant; against LORD ADVOCATE Respondent: _______

Appellant: Shead, Govier; Wilson McLeod, Edinburgh

Respondent: Hawkes; Crown Agent

1 March 2012

Introduction

[1]] This is a difficult and anxious case. The Republic of Poland seeks the extradition of the appellant so that he may serve there an outstanding cumulo sentence of three years and two months' imprisonment. The sheriff at Edinburgh ordered that he be so extradited. The appellant has appealed against that determination. His appeal, although initially more widely framed, is now based solely on section 25 of the Extradition Act 2003 - that the appellant's "mental condition ... is such that it would be ... oppressive to extradite him".

The procedural history

[2] The sheriff's determination was made on 10 March 2011 following a hearing in which evidence was led from the appellant and his wife and reference made to a report dated February 2011 from a psychiatrist at the Royal Cornhill Hospital, Aberdeen. The hearing of his appeal before this court commenced on 15 June 2011. It was not concluded before the luncheon adjournment. In the course of that adjournment the appellant, who was being held in a cell within the court building, was found hanging by his neck, the ligature being his shirt attached to the cell bars. He was cut down and taken to hospital for assessment regarding possible neck and head injuries.

[3] Since that event there have been a number of psychiatric assessments of the appellant's condition. We have in this court heard evidence from four psychiatrists. This evidence, which assessed the appellant's mental condition in the light importantly of the event on 15 June 2011 as well as of other factors, was obviously not available at the extradition hearing before the sheriff (Extradition Act 2003, section 27(4)(a)). The issue before this court is whether that evidence, if it had been available to the sheriff, would have resulted in him deciding the material question before him at the extradition hearing differently (section 27(4)(b)) - that is, that the appellant's mental condition was such that it would be oppressive to extradite him. Had the sheriff so decided, he would have required to order the appellant's discharge (section 25(3)(a) and section 27(4)(c)), there being no question in this case of there being an adjournment as envisaged in section 25(3)(b).

The appellant's history as available to the sheriff

[4] It is necessary to review the appellant's mental condition, in so far as possible on the evidence available, from the time of his youth. He was born in Chelmo, Poland in June 1982. He had a very disturbed and difficult childhood, including being assaulted frequently by his father. He had difficulties in primary school and was placed in residential school for certain periods. He received some psychiatric treatment in childhood, including hospitalisation for about three months at some time between the ages of 12 and 16 years. The precise nature of his then disorder is unclear.

[5] In adulthood in Poland he committed a number of crimes. He served a custodial sentence of some fourteen months. In September 2003, while acting with others, he misappropriated property. A penalty of one year's imprisonment, conditionally suspended for four years, was imposed. In November 2005 he stole a quantity of metal. A penalty of one year's imprisonment, suspended for five years, was imposed. Earlier, in October 2000, while acting with others, he had broken into a motor vehicle causing certain damage and driven it away; in November 2000, while acting with another, he had broken into premises and misappropriated metal. For these two offences he was sentence to a cumulo custodial term of one year and two months. This penalty was initially suspended for a period of three years but in July 2006 the Polish court ordered that that penalty be carried out. These four convictions, with their associated penalties, are the basis for the extradition request.

[6] The appellant's wife, who is also Polish, came to Scotland in about 2006. She settled in Aberdeen. The appellant followed her there in 2007. He obtained work, initially in his trade as a welder, and latterly as a butcher. Apart from a conviction for driving without insurance he has no criminal record in this country.

[7] In 2010 the appellant learned that the Polish authorities were seeking his extradition. In early February 2011 he was seen as an out-patient by Dr Badial, consultant psychiatrist in Aberdeen. In a report, which was available to the sheriff, Dr Badial recorded that since December 2010 the appellant had exhibited signs of distress, tearfulness, low mood and obvious tension and worry. He admitted to a suicidal ideation and on one occasion (discussed more fully below) he had attempted self-harm by hanging. Dr Badial does not appear to have been informed of any previous psychiatric history. According to Dr Badial, the appellant, while admitting suicidal ideation, "denied any firm intent". Dr Badial opined that the appellant exhibited evidence of an adjustment disorder, with symptoms of both anxiety and depression. He concluded:

"[The appellant] clearly believes that, if he has to return to Poland, he will undoubtedly face threats towards his personal safety, and as a result there is a risk that Mr Maziarski may resort to self-harm."

The appellant had given an account to Dr Badial that he had co-operated with the police in Poland and that, if he returned to that country, he was at risk of retribution there from his former criminal associates; threats, he said, had been made to members of his family there and his car had been vandalised in Aberdeen by Polish men. (The accuracy of the appellant's account of this last incident was not accepted by the sheriff.)

[8] The sheriff heard evidence from the appellant and his wife, including evidence about the appellant's attempts at self-harm. According to the appellant's wife, whose evidence the sheriff in this matter preferred, the hanging incident had occurred shortly after the appellant's first court appearance in the extradition process in January 2010. (The extradition process was thereafter delayed until certain domestic matters were resolved.) The appellant had wrapped a shower hose around his neck and tried to hang himself in the shower room at his home. His wife had found him as he was losing consciousness and he had been quickly revived with cold water to his face. He did not require medical attention. There was another episode at home when the appellant had shouted that he would inject himself with bleach; but his wife had taken the syringe from him.

The sheriff's approach and determination

[9] The sheriff, in addressing the appellant's case under section 25, referred to Jansons v Latvia [2009] EWHC 1845 (Admin) and Howes v HM Advocate (No.1) [2009] HCJAC 94; 2010 SLT 337. He concluded:

"Standing what the appellant said to [Dr Badial] about his current situation I took the view that these [circumstances] were not situations in which he intended to bring about his death, and further, that it was not a situation which was likely to be repeated on the basis of the available medical and other evidence."

The sheriff ordered the appellant's extradition and remanded him in custody. There is no evidence to suggest that he immediately, in face of that adverse order, took any further positive steps at self-harm. On being remanded he was initially placed on the At Risk register but three days later, following a case conference, was removed from that register. Shortly before the appeal hearing he was seen by a psychiatrist (Dr Lenihan) instructed by the Crown Office. In his report dated 8 June 2011 Dr Lenihan reported:

"There was no current suicidal ideation though he has this at times in prison."

Dr Lenihan was not at that stage convinced that the appellant had an adjustment disorder (or other psychological or psychiatric state other than anxiety, low mood and general distress). There were no psychotic symptoms or cognitive deficits.

The attempt on 15 June 2011

[10] As earlier narrated, during the luncheon adjournment on the day of the hearing, the incident in the court cell occurred. Although in the course of the appeal we did not hear evidence from the appellant, it is a reasonable inference that his action was related to a perception that his appeal was not going well for him. The hospital report following his admission records, among other things:

"Found within 2-5 min. Apparently unresponsive for max 1-2 min. but quick recovery ... Says he saw white, bright light and all his problems were gone. Unclear whether any LOC. Now frustrated that he was rescued as all his problems have returned and he is still distressed by these."

No significant physical injury was found. The appellant was discharged into the care of the prison authorities.

Subsequent psychiatric enquiry

[11] The incident in the court cell potentially provided a new dimension to the appellant's case. Dr Lenihan saw him again on 29 June and on 2 August. He consulted certain custodial and health care reports in relation to the appellant, who had been kept under regular surveillance. One report referred to the appellant's concern over "deportation". He had requested medication to help him sleep as he was experiencing nightmares. There were many observations that he was eating normally, sleeping, watching TV, socialising with other prisoners and giving the outward appearance of someone in a good mood. At interview the appellant reported more extensive, severe and disabling symptoms. Dr Lenihan opined (report dated 9 August 2011):

"This discrepancy [with the observations of others] does not necessarily mean deliberate dissimulation on Mr Maziarski's part. It is likely that he is more mindful of the difficulties that face him when he is being interviewed. At an unconscious level, he will be anxious about his future and this will manifest itself as symptoms which interfere with the undesired future outcome (so-called secondary gain). Finally, there may be a conscious, strategic element to his presentation of symptoms. It is likely that the clinical picture contains a shifting contribution from all three of these processes."

[12] Dr Lenihan, in light in particular of the incident of 15 June, revised his view of the appellant's mental condition. He now regarded him "as suffering from an adjustment disorder currently". He continued:

"5 I pointed out in my last report that adjustment disorders are common in custodial settings and are not generally regarded as being grounds for removal from custody. Mr Maziarski's difficulties are entirely a consequence of the extradition process itself. 'Treatment' requires the extradition process to proceed to an outcome, good or bad, to which Mr Maziarski can adjust. The question of whether a psychological reaction to the extradition process can be regarded as being a reason not to proceed with the extradition process is an important one for the court to consider.

6 From previous experience with extradition cases, the process appears to be a protracted one with temporary reprieves and sudden setbacks. While this may be unavoidable it is important to realise that such stresses make the development of mental health difficulties more likely.

7 [The Crown Agent's representative] asked me in her instructions to consider the question of whether Mr Maziarski's suicide attempt was genuine or not. Current best practice in suicide risk assessment is to avoid this kind of judgement. Suicide attempts are generally prompted by a mixture of motives, often poorly understood even by the person in question. They are always taken seriously and always raise the risk of future suicide attempts. Whether a suicide attempt is ultimately "successful" depends on a multitude of factors, many of them highly contextual and hard to anticipate.

8 It is clear that Mr Maziarski's suicidal ideation is contingent on an undesired outcome for his extradition hearing. That is to say, were the prospect of extradition to be removed he would no longer have any suicidal ideation. Many of the same issues apply here as in opinion point 5. Suicidal ideation and suicide attempts are relatively common in custodial settings and are generally managed in a custodial context without removal to psychiatric hospital. Facilities exist within SPS establishments for the safe observation of persons at risk of suicide. The key is to assess and manage the risk dynamically rather than rely on static, one-off judgements. The SPS ACT process provides a framework for this kind of dynamic risk management. Again, the court will have to carefully consider the extent to which such contingent suicidal ideation can act as a bar to extradition.

9 I would anticipate the risk of another suicide attempt to rise sharply after a set back such as an unfavourable outcome in court. If Mr Maziarski is eventually extradited there will be a high risk period until he adjusts to the new situation. I would anticipate this lasting some weeks to perhaps 1-2 months. The bulk of the risk management would inevitably be carried out by the Polish prison service. It is helpful to note the assurances by the Polish authorities to the effect that there are provisions for mentally ill and suicidal prisoners in Poland including provisions for removal to either a hospital environment within the prison system or an external psychiatric hospital. It is however not possible to comment regarding the adequacy of these provisions given the information provided. I can do no more than assume that Poland fulfils its international obligations in this regard."

[13] Dr Ian Dewar, consultant psychiatrist, instructed by agents for the appellant, saw him in HMP Edinburgh on 23 August. The appellant told Dr Dewar (report dated 25 August) that:

"... since [he learned of the extradition proceedings] his mental health has progressively deteriorated. He is convinced that he will be killed if he returns to Poland. He claims that his mother has told him repeatedly when he has phoned her that they know he is going to be returned to Poland and that they are going to kill him. ... Mr Maziarski told me that since his remand to custody earlier this year his health has progressively deteriorated. He told me that he was in a 'really dark' place. He tries to distract himself by exercising each day for at least an hour at the gym. Otherwise he finds it very difficulty to know how to distract himself from his thoughts and feelings. He told me that he has started hearing voices telling him to kill himself. He has difficulty sleeping and is wakening up in the early hours of the morning having experienced 'terrible nightmares'".

The appellant showed Dr Dewar old scars on his body. Dr Dewar opined that the appellant

"appears to have made a serious attempt to end his life on 15 June. Whilst I appreciate this may have been impulsive and poorly planned, nevertheless such a significant attempt at self-harm would be relatively unusual in the case of someone with an adjustment reaction."

He was also of this opinion:

"The duration and severity of Mr Maziarski's symptoms suggest to me that he may be suffering from a depressive episode. Indeed I consider that to be the most likely diagnosis."

[14] An issue accordingly arose as to whether the appellant's mental disorder (it not now being disputed that he had such a disorder) was an adjustment disorder or a depressive episode. A further issue arose as to whether the appellant should be admitted to a psychiatric hospital for a period of assessment. Two further consultant psychiatrists (Dr Doig and Dr Black) became involved. In the event, the appellant was not admitted to such a hospital. A consequence was that the view that the appellant might be suffering from a depressive episode was neither confirmed nor contraindicated. Had it been confirmed, medication might have assisted. In the event the appellant has not received any medication - other than to alleviate headaches and nightmares.

The nature of the risk

[15] All four psychiatrists gave evidence before the court. Although there remained differences of view as to the precise diagnosis of the appellant's condition, in the end that difference was not significant. The essential medical issue was, in light of the appellant's whole history, what prospectively was his likely mental condition in the event of his appeal being refused and his being extradited to Poland. The degree of risk of his making a further attempt on his own life might be a matter of interest to the court but, according to the expert evidence, it was not a risk which could readily be quantified by psychiatrists. It was very difficult to predict what a particular individual might do in that regard. It was, from a psychiatrist's point of view, more important to manage such risk as existed, including estimating when the appellant would be at greatest risk of self-harm. However, as narrated above, Dr Lenihan had opined that there would be a high risk, until the appellant adjusted to the new situation, which was estimated as lasting from some weeks to up to two months. There was no serious challenge to that estimate. The high risk period would start from the point when the appellant was first informed that his appeal had failed - should that be the court's decision - and extend through his remaining time in prison in Scotland (he would be extradited within ten days), through his transfer to Poland into his time in Polish custody.

Whether the appellant's fears are well founded

[16] It should be noted at this stage that the sheriff, having heard the appellant's testimony, was not persuaded that he was in fact at material risk from former criminal associates in Poland. These associates were no longer in prison and the appellant provided no basis for his suggestion that they could still influence people who were in prison. The sheriff took the view that the appellant and his former associates were low level, small time criminals, not members of a powerful or well-connected gang. This court heard no evidence from the appellant or any other testimony to suggest that the appellant was at material risk, if extradited to Poland, of suffering serious harm at the hands of third parties. I accordingly see no reason to depart from the sheriff's conclusion on that matter. On the other hand, there was no serious suggestion that the appellant was otherwise than genuine in his apprehensions. While there were some inconsistencies in his narrative (which may have been contributed to by difficulties in translation), it was not seriously suggested that he was inventing symptoms or attempting to manipulate the psychiatrists who interviewed him. The finding, however, that there is no actual material risk of harm at the hands of former associates may mean that, if the appellant is extradited, that truth will in due course be recognised by him and his anxieties in that respect allayed.

Measures available in Poland
[17] The Republic of Poland is a signatory to the Convention of Human Rights and a category 1 territory for the purposes of the Extradition Act 2003. It is accordingly to be expected that it will have in place appropriate measures for the protection of persons extradited to it - including protection against self-harm. Additionally, there was written material before the court that such arrangements are in fact in place. In a letter of 23 February 2011 to a Crown Office official from the vice chairman of Penal Division II, a Judge of the Regional Court, it is stated that as soon as a convict is taken into a penitentiary, a special commission classifies him, taking into account, among other things, the degree of potential threat from fellow convicts. Intensified protection is, if appropriate, provided. A prisoner undergoes a medical examination, and permanent comprehensive medical care is ensured. The letter, in translation, continues:

"In case of any signals on a risk of suicide, psychological consultations are conducted and the convict with such proneness is particularly monitored. He may be transferred to a relevant division of prison psychiatric hospital and in particular cases such a person may be granted a break in the serving of his service."

[18] In a subsequent letter (dated 7 June 2011) from a similarly placed official it was stated (in translation):

"2 In penal institutions and within penitentiary system in Poland to protect the people who have psychological problems, suicidal tendencies included, psychiatrists and psychologists are employed and beside medical protection there are also psychotherapists who run the activities with the people requiring this type of help. Furthermore, there are penal institutions (for example Penal Institution in Szezecin), which have specialised wards for persons with psychological dysfunction and such people are directed there;

3 What detailed measures are taken to ensure suitable medical care and treatment in penal institution is dependent upon the condition of health of a given confined. Thus, such measures are taken which are necessary to him becoming healthy, and if it is not possible or if the detained person does not express his consent to their application, the measures to counteract worsening of his health are taken.

4 Mental health of detained persons and whether they may serve the penalty of deprivation of freedom in case there are any doubts as to the condition of their mental health is assessed by psychiatrists based on carried out test or medical documentation. On these grounds the doctors draw their opinion. Usually, they are doctors being medical experts entered in the list of court experts.

5 If it was determined in the case that there is the danger of committing a suicide, the assessment of mental health is commissioned and it is carried out immediately after the symptoms of the disease appear. Next, the opinion is drawn up, pursuant to which the further decisions are taken. Preventative measures are taken in the form of talk by a specialist from psychology, sociotherapy and other, depending on the situation.

6 Proceedings with the people suffering from mental problems are included, among others, in the by-laws of serving the deprivation of freedom and in such situation the Head of Penal Institution in concert with the penitentiary judge takes the decision in result of which the convict person may be transferred to psychological hospital or other penal institution which runs hospital psychiatric ward."

[19] In evidence the psychiatrists, while observing that these statements were in general terms, accepted that at face value they gave some reassurance.

Assessment of the risk of attempted suicide
[20] I am satisfied on the whole evidence that the likely result of a decision on extradition adverse to the appellant would be a material worsening of his mental condition. Suicidal ideation is likely to become intense with a significant risk that he will again attempt to take his own life, probably by attempting, if given the opportunity, to hang himself. On previous occasions he has, at times of acute stress, resorted to such action. On the first of these (in about January 2010) he was probably at lesser risk of succeeding, as his wife was at hand. The later occasion (in June 2011) was more hazardous. He probably lost consciousness for a short time. If he had not been found and prompt action taken, he would probably have died. The adoption of hanging as a mode of self-harm is particularly hazardous.

Protective measures
[21] The prison authorities in Scotland are now alert to the risk that he may yet again attempt to take his own life. After the later of the two previous attempts he was monitored closely. Although in such matters it is impossible to be certain, I am reasonably satisfied that, while in the custody of the Scottish Prison Service, any attempt on the part of the appellant to take his own life could be interrupted and frustrated. If the circumstances called for it, special measures (such as the provision of rip-proof clothing and housing in an observation cell) could be taken - though subjection of the appellant to such special measures might itself be distressing. The security of the arrangements in transit to Poland and following his arrival there are less certain.

The authorities
[22] As Lord Reed observed in Howes v HM Advocate (No.1) at para [13], there have been numerous cases in which section 25 (and the equivalent category 2 provision, section 91) have been considered by the courts in the United Kingdom. Previous cases are, however, illustrative rather than definitive of what mental state of a potential extraditee is such that it would be oppressive to extradite him. It has not been suggested, nor is it here suggested, that the fact that suicide is self-inflicted is a disqualifying factor. Clearly, if the mental condition of the individual in question is such that he or she is wholly disabled from giving effect to the human instinct for self-preservation and he or she cannot, if an order for extradition is made, adequately be protected against self-destruction, that mental condition is such that it would be oppressive to extradite that person. At the other extreme, a mere threat to commit suicide will not of itself suffice - as Howes (No.1) illustrates. There is also another consideration: in Mazurkiewicz v Rzeszow Circuit Court, Poland [2011] EWHC 659 (Admin) Jackson LJ observed at para 46:

"... the growing number of cases in which the suicide argument is deployed, sometimes with success, must be a matter of concern. If the mistaken belief takes hold that any serious, but unsuccessful, attempt at suicide is rewarded by relief from extradition, this will be highly damaging for all concerned."

The damage includes the risk that troubled individuals, anxious to avoid extradition, may think it can be avoided if they make some serious gesture, apparently demonstrative of an intention to commit suicide, but without truly intending to kill themselves. As is well known, such gestures can in fact result in death. Between the extremes earlier identified there will be many cases which require the court to form an overall judgment against the particular circumstances.

[23] In Jansons v Latvia there was uncontradicted evidence from a consultant psychiatrist that, if the appellant was sent back to Latvia, "his mental state will deteriorate and he will kill himself". The court relied on that opinion. At para 29 May LJ referred to "the risk which the doctor does not express as a risk but as a certainty that he will commit suicide, his mental state having deteriorated". None of the psychiatrists before us was prepared to speak in terms of certainty - and we can readily understand why. As Bean J observed in the Wrobel v Poland [2011] EWHC B2 (Admin) "... predictions by psychiatrists cannot, as I see it, be in terms of certainty". As to the legal test Bean J said:

"In a case based on the risk of suicide there must, in my view, be independent and convincing evidence of a very high risk of suicide if the fugitive is returned."

That test was endorsed by the Divisional Court in Mazurkiewicz v Rzeszow Circuit Court, Poland (per Jackson LJ at para 44).

Evaluation
[24] The evaluation task is made the more difficult for this court by the fact that the psychiatrists before it were reluctant to quantify the risk of the appellant attempting suicide. Dr Lenihan in his final report (dated 13 January 2012) described this as "an impossible task". Nonetheless, Dr Dewar opined in evidence in chief that there was a high risk that the appellant would harm himself, though conceded in cross-examination that there was little to be gained by seeking to quantify the risk of suicide. Dr Doig in his report opined that there was "a significant risk of Mr Maziarski carrying out a further attempt at suicide should his legal case not go well for him"; in evidence he explained "significant" as being intended to convey "more likely than not". Dr Black testified that he could not put a precise percentage on the risk of a future attempt at suicide but that, given the past history of attempts and the appellant's suicidal ideation, one had to take seriously the risk of a further attempt. Dr Lenihan testified orally that he would find it difficult to put the risk of a further attempt on a scale of risk or in a probability band.

[25] At present the appellant's mental state appears to be reasonably stable. The authorities at HMP Edinburgh, where he is being held, are familiar with his history and are monitoring him. His suicidal ideation is essentially directed to the prospect of a final order being made for his extradition. If this court so orders, a major stressor will, on the appellant being informed of that decision, come to bear on his mind. Given his past history of serious suicide attempts when he perceived that there was a real possibility that he would be extradited, news that his legal attempts to avoid it have been exhausted without success is very likely adversely to affect his mental condition, including making more immediate his suicidal ideation. Given that on both prior occasions his selected mode of self-harm was by hanging, there is a significant risk that, given the opportunity, he would again attempt to hang himself. If that opportunity were denied to him, he might find an alternative mode.

Protective measures
[26] The Scottish custodial authorities are familiar with him. Special measures could be taken to ensure that, while he remains in the court building and in transit back to the prison, he is closely monitored. This will minimise the risk of a successful suicide attempt, though it will not obviate the risk entirely. The same is true for such limited period as he would be held in HMP Edinburgh prior to transit to Poland. In HMP Edinburgh he could be placed on high risk status.

[27] More difficult to assess are the arrangements for transit from Scotland to Poland and in Poland itself. The transit, we were informed, would be by road to London Heathrow airport where the appellant would, by pre-arrangement, be handed over to Polish officers for a flight to Poland. Transport to London Heathrow could be in a specially equipped police van with a prisoner compartment with perspex walls allowing the prisoner to be viewed at all times by staff in the vehicle. There would require to be adequate numbers of staff with relevant training available to control the appellant if that was required. Once at Heathrow the appellant would require to be lodged in an appropriate cell which would also have constant surveillance and be otherwise equipped to deal with prisoners who pose a suicide risk. It is envisaged that transport to Heathrow and from there to Poland would be effected in a single day but contingency arrangements would require to be put in place for the appellant to be held overnight in Heathrow in appropriate conditions. Once the appellant was handed over to Polish officers the arrangements would be largely out of the control of this court. Arrangements could be made to the extent of advising the Polish authorities fully in advance of the appellant's at risk status, with a view to appropriate arrangements being put in place by them both for the transit from London Heathrow to the Polish institution where he would be held and for his reception there. It would be appropriate, in order to avoid any misunderstanding, that the authorities here provide written information about the appellant to the Polish authorities, including to the Polish officers who are first to take custody of him, in the Polish language (as well as in English). That would allow for the general reassurances about the care of vulnerable prisoners in Poland to be given practical and particular effect. There is, however, inevitably a degree of imprecision about the Polish arrangements which may carry an enhanced risk.

Oppression

[28] The ultimate question for this court is whether the appellant's mental condition is such that it would be oppressive to extradite him. The answer to that question may require examination of more than the appellant's mental condition, present and prospective, including the risk of his attempting suicide. Other considerations include the public interest in giving effect to treaty obligations in extradition cases (R (Warren) v Secretary of State for the Home Department [2003] EWHC 1177 (Admin) per Hale LJ at para 40; Howes v HM Advocate (No.1), per Lord Reed at para [13]) and the likelihood that the countries with which treaties are concluded will to have adequate facilities available for treating the health problems, including mental health problems, of persons whose extradition is requested (Boudhiba v National Court of Justice, Madrid [2007] 1 WLR 124, per Smith LJ at para 65; Howes v HM Advocate (No.1), per Lord Reed at para [13]). As to the latter of these considerations there is available in this case not only an assumption that Poland has appropriate arrangements in place but also evidence, albeit in general terms, to the effect that it has. As to the former, the public interest is clear. Its cogency may, however, vary with circumstances. It is for this court to determine whether an appellant's state of health is such that it would be oppressive to extradite him. Notwithstanding the treaty obligation, it might be that the charges (in a pre-conviction case) or the sentence or sentences (in a post-conviction case) were so trivial that, notwithstanding the request, it would, given the state of health of the potential extraditee, be oppressive to extradite him. At the other end of the scale, if the charge or conviction was, for example, of mass murder, the treaty obligation might be compelling.

[29] In the present case the offences of which the appellant stands convicted in Poland are at first sight not of the most serious. They are crimes of dishonesty in respect of which the Polish court imposed sequential custodial sentences of one year and two months, one year and one year respectively, in each case conditionally suspended for a number of years. In respect of at least one of these sentences (that for one year and two months) a Polish court has ruled that the penalty has to be carried out. The European Arrest Warrant, however, refers to all three judgments as enforceable and the sheriff proceeded on the basis that a cumulo sentence of three years and two months was to be served. There was no suggestion before us that that basis was incorrect. The appellant has been in custody in Scotland since 10 March 2011 - that is, eleven months or so. We were informed that that period would be discounted by the Polish authorities from the appellant's outstanding sentences but that, under Polish law, there is no remission of sentence, automatic or discretionary.

[30] The cumulo sentence imposed by the Polish courts cannot be regarded as trivial. It has also to be seen against a background that the appellant has at least one previous conviction, for which he served fourteen months in custody. In these circumstances the nature of the convictions and the outstanding sentences, while relevant, are not, in my view, such as significantly to reduce the cogency of the public interest in giving effect to treaty obligations.

[31] The issue accordingly comes down, in my view, to an evaluation of the appellant's mental condition, including the risk of suicide in the event of this court refusing this appeal. In terms of section 27(4)(b) this court has to ask itself whether, if the sheriff had heard the evidence which we have heard, he would have decided the question before him at the extradition hearing differently - that is, he would have decided that the appellant's mental condition was such that it would be oppressive to extradite him.

Conclusion

[32] I find this to be a very narrow case but have come ultimately to the view that this appeal should be allowed. What weighs with me in particular is that the appellant has on two occasions, one of them being when he was held in custody, attempted to commit suicide - in each case by hanging. In the latter case he came close to succeeding in killing himself. These attempts were made, on the first occasion, soon after he had learned that the Polish authorities were seeking his extradition and, in the second case, when he appears to have perceived that his appeal was not going well. If he reacted as he did on these occasions, his state of mind on learning that his extradition was certain is likely to be even more disturbed, with a heightening of his suicidal ideation; a further, perhaps even more determined, attempt at self-destruction is very likely. While steps could be taken, both in this country, in transit to Poland and in the Polish institution to protect him from himself, there can be no sufficient confidence that in his case these will succeed - particularly as his acutely disturbed state may last as long as two months. The evidence about the appellant's mental condition is accordingly such that, in my view, had the sheriff had it before him, he would have decided that that condition was such that it would be oppressive to extradite the appellant. In that event he would have required to order the appellant's discharge. I would accordingly move your Lordships to allow this appeal, to order the appellant's discharge and to quash the order for his extradition.