Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 32

HCA/2014/4939/XM

HCA/2014/4942/XM

HCA/2014/4943/XM

Lord Justice Clerk

Lord Menzies

Lady Dorrian

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in the

APPEALS

under section 26 of the Extradition Act 2003

by

AGNIESZKA JANTOS

Appellant;

against

THE LORD ADVOCATE

Respondent:

Appellant: Party

Respondent: D J Dickson, Solicitor Advocate; the Crown Agent

26 March 2015

1          Introduction
[1]        The appellant is the subject of three European Arrest Warrants dated between 2009 and 2012.  They relate to offences of fraud committed between 1996 and 2001 and of which the appellant has been convicted.  She has 2½ years or thereby of imprisonment to serve in respect of the sentences passed. 

[2]        The appellant first appeared at Edinburgh Sheriff Court on 6 May 2014.  After sundry postponements of the hearing, to provide the appellant more time for preparation, on 23 October 2014 the sheriff ordered extradition.  The appellant appeals on the basis that, in terms of section 25(2) of the Extradition Act 2003, her physical state is such that it would be unjust or oppressive to extradite her.  In particular, it is said that she would not receive the necessary treatment for her medical condition in Poland.

2          Proceedings before the sheriff
[3]        Evidence about the appellant’s medical condition came in the form of letters from Dr Fraser Patrick, who was designed as a consultant haematologist at Glasgow Royal Infirmary (see infra).  This confirmed that the appellant has a “polycythaemic disorder”, which causes an over-production of red cells, platelets and white cells in the bone marrow.  According to Dr Patrick, the condition currently requires intermittent venesection (the removal of a pint of blood) about once a year and the taking of hydroxycarbamide tablets.  Monitoring of the appellant’s blood ought to take place about every two months, when her tablets would also be supplied.  These tablets are said by Dr Patrick to be cheap and widely available.  Were the appellant’s treatment to be withdrawn, she would be at increased risk of thrombosis.  Dr Patrick concluded:

“I do not believe that [the appellant’s] health would be affected by her extradition to Poland and imprisonment as this would not change the management of her condition as long as she has access to hydroxycarbamide tablets and venesection and medical review”.

He repeated that the tablets are used worldwide and he would have been “very surprised” if they were not available in Poland. 

[4]        The appellant gave evidence, but this was essentially disbelieved by the sheriff as being exaggerated.  The sheriff did accept testimony from the appellant’s daughter, to the effect that she had gone to various pharmacies in Krakow and obtained information from the pharmacies there that the tablets were not widely available in Poland.  She also obtained information that the appellant could wait some time before obtaining a hospital appointment.

[5]        Set against this, the respondent produced a number of letters from judges in Poland.  One of them was from Judge Soltysinka-Laszczya of the Third Criminal Division of Krakow District Court.  This stated that, having consulted the remand centres in Krakow, a full range of therapies, including venesection, would be available to the appellant throughout her period of custody.  Treatment would be at the remand centre or prison or, if circumstances required, outwith the penal facility in specialised hospitals.  Treatment with hydroxycarbamide would be fully available, especially if the appellant had been treated with this medication before.  The treatment and medical care costs would be paid by the state.  There was a letter from Judge Satko, presiding judge of the Second Criminal Division of Tarnów Regional Court, to the effect that the illness mentioned was treated in Polish prisons and that the tablets were available in the pharmacies.  Treatment and medication were free.  A third judge had reported that issue of medical services was not within the court’s competence although, if there was a problem caused by imprisonment, the appellant could apply to the court for a postponement of imprisonment.  A fourth judge had said that, if the appellant had been advised to use the tablets and be subject to venesection, then this was a “possibility”. 

[6]        The sheriff held that the appellant had failed to establish that her physical condition was such that it would be unjust or oppressive to extradite her.  Her condition was treatable in an uncomplicated and non-expensive manner.  In addition, the sheriff considered that he was entitled to proceed upon the assurances of the judges about the availability of medical care in Polish prisons.  He did not consider that the evidence of the daughter undermined this in any material respect.  He was, he said, entitled to take the view that Poland would do what it said it would do.  He therefore rejected the appellant’s contention and ordered extradition.

3          Submissions
[7]        The appellant had been legally represented by a law agent throughout the first instance proceedings, during which she was on bail.  She did not obtain legal aid for an appeal.  A Note of Appeal was lodged, however, on 28 October 2014.  At a Procedural Hearing on 23 January 2015 the appellant was represented by counsel and agents.  The court was advised that the appeal was ready to proceed to a hearing.  The court fixed a hearing for 19 March 2015.  It appears to have been anticipated that the appellant would fund the appeal privately.  However, on the day before the hearing, the court was informed that no funds had been put in place and counsel and agents would be withdrawing from acting.  They did this on the morning of the hearing.  The appellant was advised by the court that she could move for an adjournment to enable her to seek new representation.  She did so and the court acceded to her motion.  A new hearing was fixed for 26 March, affording the appellant a further week to prepare the appeal.  She was provided with a translation of the sheriff’s decision to assist in that regard.  When the case called again on 26 March, the appellant asked for more time, but the court did not allow this given the lengthy period which had already elapsed since the appellant’s first appearance before the sheriff and since the marking of the appeal some 5 months previously.  Ample time had been afforded to the appellant to prepare her case.

[8]        The appellant’s ground of appeal was that the sheriff had erred.  The appellant had a serious medical condition and, without the required treatment, matters could develop into an acute state.  The undertakings given by the Polish judges did not meet the required standard to satisfy the sheriff that continued medical treatment could be guaranteed in Poland.  In extradition matters, diplomatic assurances were the standard means for the requesting state to provide any required assurances.  At the bar, the appellant addressed the court through an interpreter.  She first focused on defects which she perceived in her agent’s preparation and presentation of her case at first instance.  In particular, she maintained that certain documents, notably medical records relating to her condition, had not been lodged.  These would have demonstrated that her condition was far more serious than appeared from Dr Patrick’s letters.  Indeed, Dr Patrick was not a consultant, as he had maintained, but a relatively junior doctor who had attempted to persuade the appellant that she should not have the chemotherapy treatment which she required for her leukaemia.  The frequency of the appellant’s venesection was much higher than that which Dr Patrick had reported.  He had misled the court in relation to the appellant’s condition.

[9]        Having read the sheriff’s judgment, it seemed he had erred in certain respects.  He had not done enough to ascertain the true position about the availability of the particular drugs in Poland and on what medical treatment she could receive in prison.  There was no free market in drugs.  Her daughter’s evidence had demonstrated the scarcity of the drug.  The sheriff ought not to have based his decision on Dr Patrick’s “surprise”.

[10]      Although there had been no point taken at first instance in relation to the age of the original offences, the appellant raised this issue.  She maintained that, in acting as she did, she had been doing no more than any other mother of three would have done.  She had just been trying to survive.  Although Poland was a Category One country, it would take several generations to develop.  Extradition would be harmful to her in terms of her imprisonment.  In practical terms, she could not ask for a suspension of the sentence.  She was not fit to travel for what she said would be a 4 day journey to Kracow, via a transit prison near Warsaw and then to various other prisons en route to her final destination.  Someone had to take responsibility for the unfairness she had suffered.

4          Decision
[11]      There is a strong but rebuttable presumption that member states of the European Union will not infringe the Convention rights of persons.  Extradition is based on reciprocity and there is a general obligation to surrender those who are the subject of legitimate European Arrest Warrants to the extraditing country, except in certain specified circumstances.  A high threshold must be reached in order to satisfy the court that a requested person’s physical condition is such that it would be oppressive to extradite him (Howes v HM Advocate [2010] HCJAC 123, Lord Emslie at paras [17]-[23]).  The onus is on an appellant to demonstrate such oppression.  As a generality, it is assumed that the prison system of a Category One requesting state will provide necessary medical treatment for prisoners (Wlodarczyk v The Lord Advocate 2012 SCCR 490, LJG (Hamilton) at para [38]; Allen v HM Advocate 2010 SCCR 861, Lord Clarke at para [14]).

[12]      Much of what was advanced at the bar in oral submissions was not contained in the Note of Appeal.  The court was not, in any event, persuaded that there had been any material defect in the presentation of her case to the sheriff.  Agents appeared to have obtained and lodged appropriate documentation relating to her medical condition.  The court has considered the documentation said to have been omitted at first instance.  This described the appellant’s condition in a similar manner as is contained in Dr Patrick’s letters, even if it does refer to a period of increased venesection over four weeks to enable stabilisation of her condition.  In relation to Dr Patrick, the court is not prepared to accept the appellant’s assertion that he is not who he said he is; a position which appears to be based on the fact that he no longer works at the Glasgow Royal Infirmary and is therefore not included in the names of the consultants on the clinic’s notepaper.

[13]      On the evidence which was led at first instance, the court is unable to fault the reasoning of the sheriff.  There is essentially no evidence produced to demonstrate that the medical treatment which the appellant requires would not be available in Polish prisons.  In that regard, the sheriff was entitled to hold that the testimony of the daughter was not of material relevance to a consideration of that topic.  The sheriff was entitled to proceed on the basis of the clear assurances from the majority of the judges who responded that suitable medical treatment of the type required would be provided in prison.  There was no contradictory evidence.  In all these circumstances, the court is unable to hold that the sheriff made any error and the appeal must be refused.

[14]      The court has requested the respondent to forward appropriate details of the appellant’s condition and required treatment to the Polish authorities.