Andrzej Mazurkiewicz v Rzeszow Circuit Court, Poland
| Jurisdiction | England & Wales |
| Judge | Jackson LJ,Cranston J |
| Judgment Date | 22 March 2011 |
| Neutral Citation | [2011] EWHC 659 (Admin) |
| Docket Number | CO/12163/10,Case No: CO/12163/10 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 March 2011 |
[2011] EWHC 659 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before : Lord Justice Jackson
Mr Justice Cranston
Case No: CO/12163/10
Mr Malcolm Hawkes (instructed by BSB Solicitors) for the Appellant
Mr Myles Grandison (instructed by Crown Prosecution Service) for the Respondent
Hearing date: Monday 7 th March 2011
Lord Justice Jackson :
This judgment is in seven parts, namely:
Part 1. Introduction,
Part 2. The Facts,
Part 3. The Appeal to the High Court,
Part 4. The Law,
Part 5. The First Ground of Appeal: Suicide Risk,
Part 6. The Second Ground of Appeal: Tattooing,
Part 7. Conclusion.
Part 1. Introduction
This is an appeal against an order for extradition to Poland. The appellant contends that if the extradition goes ahead he will, or alternatively he is highly likely to, commit suicide. The appellant also contends that if extradited to Poland he will be subjected to forcible tattooing in Polish prisons.
Poland is a category 1 territory as defined in the Extradition Act 2003, to which I shall refer as "the 2003 Act".
I shall refer to the European Convention for the Protection of Human Rights and Fundamental Freedoms as "ECHR". Article 2 of ECHR provides that everyone's right to life shall be protected by law. Article 3 of ECHR provides:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
Article 8 of ECHR provides:
" Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Section 21 of the 2003 Act provides:
"(1) If the judge is required to proceed under this section (by virtue of section 11 or 20) he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c. 42).
(2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge.
(3) If the judge decides that question in the affirmative he must order the person to be extradited to the category 1 territory in which the warrant was issued."
Section 25 of the 2003 Act provides:
"(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."
Having set out the relevant statutory provisions, I must now turn to the facts.
Part 2. The Facts
The appellant was born in Poland on 4 th September 1981 and so is now aged 2In 2000, when the appellant was aged 19, he committed an offence of forgery. In 2001, when the appellant was aged about 20, he committed acts of harassment against his mother and his siblings. The appellant received a total sentence of 1 year 2 months imprisonment for these offences. He has so far served only part of that sentence, the remainder having been suspended.
In 2002 the appellant committed further offences, namely assault occasioning actual bodily harm and causing criminal damage to a motor vehicle. The appellant received a sentence of 18 months imprisonment for these offences. That sentence was suspended.
It appears from the appellant's witness statement that, in addition to having suspended sentences, the appellant also served an immediate term of imprisonment for 12 months between 2004 and 2005.
The appellant came to the UK in 2005. According to his witness statement the appellant found work on construction sites, earning about £250 per week.
In the meantime the machinery of criminal justice in Poland was working. The Polish courts decided that the appellant should serve the sentence of imprisonment which had previously been suspended. On the 21 st March 2008 the Rzeszow Circuit Court in Poland issued a European Arrest Warrant in respect of the appellant.
In 2008 the appellant formed a relationship with Aleksandra Kulikowska, a young woman who was then aged 15. On 3 rd August 2009 the appellant and Aleksandra had a baby daughter, Michella.
In September 2009 the Serious Organised Crime Agency certified the European Arrest Warrant. Despite that certification, the appellant was not immediately arrested.
Unfortunately the appellant did not settle down to live a law abiding life in this country. In September 2009 he assaulted Aleksandra's uncle. On 19 th October 2009 the appellant was sentenced to a community order in respect of that offence, requiring him to carry out 200 hours of unpaid work. He was also subjected to a curfew requirement for two months with electronic tagging. The appellant did not comply with the requirements of the community order. Accordingly, on the 24 th March 2010 the Bromley Magistrates' Court, which had originally imposed the community order, substituted a sentence of 61 days imprisonment.
Whilst the appellant was serving his prison sentence in this jurisdiction, he was arrested pursuant to the European Arrest Warrant for the purposes of extradition. On 23 rd April 2010 the appellant's prison sentence for the assault offence came to an end, but he remained in custody pending the outcome of extradition proceedings.
On 16 th June 2010 the appellant made a suicide attempt. The prison record of that incident reads as follows:
" Ms Jo Grimshaw at HMP Wandsworth
Entry by ST/N Cassia Lim. On centre with Hotel 3 (Grimshaw) when heard alarms on D-wing. Attended code 1 on D3 landing with Hotel 3. On arrival patient was conscious and on the floor. Officers reported that he had been hanging from the light fitting, feet off the ground for an unknown period of time. On examination pt was very distressed. He was fully conscious – GCS=15/15. He had ligature marks to his neck but had full range of movement. No spinal or back pain. Obs were within normal range. Lengthy discussion with pt as to motivation for suicide attempt with the assistance of interpreter. He appears to have long standing concern about his upcoming extradition to Poland. Concern that he may attempt DSH again in the future, therefore recommended level one obs. Officers aware and PCMHT asked to review as urgently."
Following that incident the appellant's lawyers arranged for a psychiatric examination. On 29 th July 2010 Dr Alan Reid, a consultant forensic psychiatrist, visited the appellant at Wandsworth Prison with the assistance of an interpreter. At the start of the interview the appellant produced a razor blade from his mouth, which was duly confiscated by prison officers.
Following that interview Dr Reid produced a detailed report. In that report Dr Reid sets out the appellant's life history as recounted by the appellant. He then describes the appellant's recent progress in custody. Dr Reid then records the following:
"He states that once he became aware that it was planned that he would be deported to Poland, he has self-harmed on ten to twenty occasions. He states that he cuts himself on the arm with a razor blade. He showed me a number of healed superficial scars on his arms. He states that he does not always bring these to the attention of the prison staff."
Dr Reid then deals with the incident on 16 th June. Dr Reid records the appellant's account that this was a serious attempt in which he lost consciousness. Dr Reid also reports seeing a number of tattoos on the appellant in the course of his examination.
In the opinion section of this report Dr Reid writes as follows:
"7. On the 16 th June 2010 he attempted to hang himself in his prison cell. There is rather scant information from the prison service about the exact details of this incident and it is difficult to know with certainty to what extent it was just good fortune that this attempt was not successful or whether the incident took place in a manner that made discovery likely. It is unclear from the description whether there was any way in which he could have terminated this attempt once he started it. It is also unclear to what extent he had made this attempt with the likelihood of it being carried through with success. From the information given, it does sound like it was an event that could have resulted in his death but for the intervention of prison staff.
8. In my opinion I strongly suspect that Mr Mazurkiewicz suffers from traits of both an emotionally unstable personality and an antisocial personality. I am cautious about fully attributing the diagnosis of personality disorder to him, as my information source is very much based on Mr Mazurkiewicz's account and ideally before a diagnosis of personality disorder is made it is necessary to have good collateral history as to the persons past history and behaviour. It is my opinion that traits of these disorders (affective instability [fluctuations of mood], ability...
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