Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 55

HCA/2016/8/XC

Lord Justice Clerk

Lady Smith

Lord Drummond Young

STATEMENT OF REASONS

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

in

APPLICATION FOR LEAVE TO APPEAL AGAINST EXTRADITION

by

ARTUR LEWANDOWSKI

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  McCluskey; Ludgate Dunne

Respondent:   Dickson, AD; Crown Agent

17 June 2016

[1]        In this case Mr McCluskey accepted that the sheriff’s report caused some difficulties for him, and in consequence had advised that further reports should be obtained, with a view possibly to the leading of further evidence.  For that reason, given that he could not do so without legal aid, he asked the court to grant leave to appeal in order that legal aid could be applied for.  We do not consider that there is any basis in this case for acceding to that motion.  The question whether granting such a motion would advance matters is an entirely speculative one.  The circumstances of this case are quite different from those in which the matter only comes to light as proceedings progress:  here it has been the primary issue from the outset.  Mr. McCluskey’s fall-back position was to make a formal motion supporting the ground of appeal relating to section 11.

[2]        The sheriff has indicated that he was unable to conclude that extradition would be unjust or oppressive by virtue of the appellant’s mental condition.  There was no evidence that the Polish authorities would not be in a position to provide appropriate medical or psychiatric care.  There was no evidence that the Polish authorities would not be able to manage a suicide risk.  The extent to which the appellant’s presentation was genuine was not a matter on which the sheriff felt required to reach a concluded view, since there was in any event no material before the court to suggest that any condition from which the appellant was suffering could not adequately be managed and or medicated in Poland.  There was insufficient evidence to suggest that it would be unjust or oppressive to order extradition.  The sheriff indicated that bare assessment of one of the psychiatrists that

“…the appellant would find travel to Poland unbearable, without even adding that there was no medication or other treatment which might ameliorate that position, was quite inadequate.”

[3]        In all the circumstances the sheriff was unable to conclude that extradition would be unjust or oppressive.  We note the following comments from the case of Jantos v LA [2015] HCJAC 32, paragraph 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 same applies to his mental condition.  The case continues:

“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]).”

[4]        We accept the submission for the Crown that there is no arguable point upon which leave could be granted.  Accordingly, the application will be refused.