Maciej Maziarski V. The Lord Advocate For And On Behalf Of The Authorities In Poland
| Jurisdiction | Scotland |
| Judge | Lord Clarke,Lord Menzies,Lord Justice General |
| Judgment Date | 01 March 2012 |
| Neutral Citation | [2012] HCJAC 33 |
| Docket Number | XC233/11 |
| Published date | 01 March 2012 |
| Court | High Court of Justiciary |
| Date | 01 March 2012 |
| 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...
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