I Polish Judicial Authority v Mariusz Wolkowicz (Alias Del Ponti)
| Jurisdiction | England & Wales |
| Judge | The President of the Queen's Bench Division |
| Judgment Date | 30 January 2013 |
| Neutral Citation | [2013] EWHC 102 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 January 2013 |
| Docket Number | Case Nos: CO/11174/2012, CO/8478/2012, CO/9845/2012,CO/11174/2012 CO/8478/2012 CO/9845/2012 |
[2013] EWHC 102 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
President of the Queen's Bench Division
and
Mr Justice Burnett
Case Nos: CO/11174/2012, CO/8478/2012, CO/9845/2012
David Josse QC and Ben Keith (instructed by TV Edwards) for the appellant Wolkowicz
Ben Watson and Laura Mackinnon (instructed by CPS) for the Respondent in Wolkowicz
Joel Smith (instructed by Tuckers) for the appellant Biskup
Ben Watson and Nicholas Hearn (instructed by the CPS) for the Respondent in Biskup
Amelia Nice (instructed by TV Edwards) for the appellant Rizleriene
Ben Watson and James Stansfeld (instructed by the CPS) for the Respondent in Rizleriene
Hearing date: 18 December 2012
This is the judgment of the court.
These three appeals were heard together because they raised the question as to whether proceedings for the extradition of the appellants under European Arrest Warrants (EAW) ought to be discharged or adjourned because of the risk that the appellants might commit suicide by reason of their mental condition. It is convenient first to consider the general approach before turning to the facts of each case though, as we shall make clear, the decision in each case is highly fact sensitive.
I Suicide Cases
Although it will be necessary to refer to the argument raised under Article 3 of the ECHR, the relevant provision in relation to proceedings under an EAW is s.25 of the Extradition Act 2003 (the 2003 Act) which 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."
(a) The meaning of s.25 of the 2003 Act
It was contended on behalf of each of the respondent judicial authorities that s.25 of the 2003 Act ought to be interpreted in the light of the Framework Directive and in particular Article 23.4 which provides as follows:
"The surrender may exceptionally be temporarily postponed for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the requested person's life or health. The execution of the European arrest warrant shall take place as soon as these grounds have ceased to exist. The executing judicial authority shall immediately inform the issuing judicial authority and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed."
It was submitted that as the Article refers to temporary postponement, the exercise of the power under s.25 should only be for temporary postponement save in an exceptional case.
As is clear from decisions of the CJEU in Criminal Proceedings against Pupino (Case Cl05/03 [2006] QB 83 at paragraphs 43 and 47, Dabas v High Court of Justice in Madrid [2007] UKHL 6, [2007] 2 AC 31 at paragraphs 4 and 5 (Lord Bingham), paragraphs 15–22 (Lord Hope), paragraph 76 (Lord Brown) and Assange v The Swedish Prosecution Authority [2012] UKSC 22, [2012] 2 AC 471 at paragraphs 6–10 (Lord Philips) and paragraphs 121–2 (Lord Dyson) and at paragraphs 198–218 and 245–6 (Lord Mance), the Act ought to be interpreted wherever possible to achieve the results sought by the Framework Decision. However in Officer of the King's Prosecutor Brussels v Cando Armas [2006] 2 AC 1, Lord Bingham expressed at paragraph 8 his view:
"Part 1 of the 2003 Act did not effect a simple or straightforward transposition, and it did not on the whole use the language of the Framework Decision. But its interpretation must be approached on the twin assumptions that Parliament did not intend the provisions of Part 1 to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure of cooperation by the United Kingdom than the Decision required, it did not intend to provide for less."
He agreed with Lord Hope who said at paragraph 24:
"But the liberty of the subject is at stake here, and generosity must be balanced against the rights of the persons who are sought to be removed under these procedures. They are entitled to expect the courts to see that the procedures are adhered to according to the requirements laid down in the statute. Unfortunately this is not an easy task, as the wording of Part 1 of the 2003 Act does not in every respect match that of the Framework Decision to which it seeks to give effect in domestic law. But the task has to be approached on the assumption that, where there are differences, these were regarded by Parliament as a necessary protection against an unlawful infringement of the right to liberty."
It is clear s.25 (and its equivalent in Part 2 of the Act, s.91) was introduced for the specific purpose of transferring to the court the power to deal with cases where ill health arose, as opposed to allowing the decision to be made by the Secretary of State. The terms of the section used the terms used in previous statutes; in particular the terms "unjust" and "oppressive" had the benefit of the well known exposition in Kakis v The Government of the Republic of Cyprus [1978] 1 WLR 799: see Government of the Republic of South Africa v Dewani [2012] EWHC 842 (Admin) at paragraphs 66– 67. S.25 gives the express power to the court to discharge. We cannot therefore accept that the provision should be limited to a temporary postponement save in exceptional cases or should be interpreted more narrowly than the express terms in which it was enacted by Parliament.
(b) The previous cases
There have been a large number of cases in which the question as to whether the mental condition of a requested person who poses a substantial risk of suicide amounts to his extradition being unjust or oppressive or in breach of Article 3 of the Convention. These include:
Boudhiba v National Court of Justice, Madrid [2006] EWHC 167 (Admin),
Prancs v Rezekne Court of Latvia [2006] EWHC 2573 (Admin),
Kwietniewski v Circuit Court in Tarnobrzeg, Poland [2008] EWHC 3121 (Admin),
Spanovic v Government of Croatia [2009] EWHC 723 (Admin),
Jansons v Latvia [2009] EWHC 1845 (Admin),
Howes v HM Advocate [2009] HCJAC 94, (2010) SLT 337,
Prosser v Secretary of State [2010] EWHC 845 (Admin),
Rot v District Court of Lublin, Poland [2010] EWHC 1820 (Admin),
S v Court of Bologna [2010] EWHC 1184 (Admin),
Wrobel v Poland [2011] EWHC 374 (Admin),
Mazurkiewicz v Poland [2011] EWHC 659 (Admin),
Griffin v Westminster Magistrates Court and Tribunal de Grand Instance, France [2011] EWHC 943 Admin,
Kozlowski v Poland [2012] EWHC 1706 (Admin),
Savage v USA [2012] EWHC 3317 (Admin).
In a recent suicide case, Turner v Government of the USA [2012] EWHC 2426 (Admin), Aikens LJ summarised the propositions which could be derived from these cases at paragraph 28:
"(1) The court has to form an overall judgment on the facts of the particular case.
(2) A high threshold has to be reached in order to satisfy the court that a requested person's physical or mental condition is such that it would be unjust or oppressive to extradite him.
(3) The court must assess the mental condition of the person threatened with extradition and determine if it is linked to a risk of a suicide attempt if the extradition order were to be made. There has to be a "substantial risk that [the appellant] will commit suicide". The question is whether, on the evidence the risk of the appellant succeeding in committing suicide, whatever steps are taken is sufficiently great to result in a finding of oppression.
(4) The mental condition of the person must be such that it removes his capacity to resist the impulse to commit suicide, otherwise it will not be his mental condition but his own voluntary act which puts him at risk of dying and if that is the case there is no oppression in ordering extradition.
(5) On the evidence, is the risk that the person will succeed in committing suicide, whatever steps are taken, sufficiently great to result in a finding of oppression?
(6) Are there appropriate arrangements in place in the prison system of the country to which extradition is sought so that those authorities can cope properly with the person's mental condition and the risk of suicide?
(7) There is a public interest in giving effect to treaty obligations and this is an important factor to have in mind."
We agree with counsel that this is a succinct and useful summary of the approach a court should adopt to s.25 and s.91 of the 2003 Act.
(c) The importance of preventative measures
The key issue, as is apparent from propositions (3), (5) and (6), will in almost every case be the measures that are in place to prevent any attempt at suicide by a requested person with a mental illness being successful. As Mr Watson correctly submitted on behalf of the respondent judicial authorities, it is helpful to examine the measures in relation to three stages:
i) First, the position whilst the requested person is being held in custody in...
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