Marek Dabrowski v Regional Court in Radom (Poland)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Treacy,Nicol J |
| Judgment Date | 21 February 2017 |
| Neutral Citation | [2017] EWHC 179 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3732/2016 |
| Date | 21 February 2017 |
[2017] EWHC 179 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Treacy
and
Mr Justice Nicol
Case No: CO/3732/2016
Mr Graeme L Hall (instructed by Kaim Todner Solicitors) for the Appellant
Ms Florence Iveson (instructed by CPS) for the The Respondent
Hearing dates: 3 February 2017
Judgment Approved
Introduction
This is an appeal pursuant to s.26(1) of the Extradition Act 2003 against the decision of the District Judge on 25 July 2016 to order the appellant's extradition to Poland.
The European Arrest Warrant (EAW) was issued on 30 December 2014. The EAW is accusatory in nature. The appellant's surrender is sought for an offence of robbery which took place on 20 November 2008. The allegation is that the appellant carried out a street robbery by striking the offender on the shoulder, causing him to fall to the pavement and to lose consciousness. At that point it is alleged that the appellant stole money, with a sterling value at the time of about £425. The offence carries a maximum sentence of 12 years.
The appellant was never arrested or questioned. According to his witness statement, he left Poland soon after the alleged robbery, and came to this country. He was homeless for about 4 years. His mother came to this country in 2011 but was unable to find the appellant until 2012, when she found him living in a tent outside St Paul's Cathedral. Since that time the appellant has lived at various addresses with his mother, and they now share a property occupied by them since September 2015.
Charges were laid on 22 December 2008, but the EAW was not issued until December 2014.
A significant factor in this appeal is the appellant's psychiatric condition. In March 2015 the appellant attacked two women on the London Underground. He was admitted to hospital under s.2 of the Mental Health Act, and remained there for 3 months. He was then treated by the Home Treatment Team, who discharged him in September 2015.
The District Judge had a report dated 27 May 2016, from Dr Gary Jenkins, a consultant psychiatrist. He diagnosed the appellant as suffering from residual schizophrenia. He said that the appellant will need long term treatment with anti-psychotic medication. He was currently compliant with his medication, but if he lacked insight in the future, as has happened in the past, he would need "depot intramuscular injections". Dr Jenkins said that without the stability achieved by taking his medication and being looked after by his mother, relapse would be almost inevitable if the appellant went back to Poland alone. He was of the opinion that it would be detrimental to the appellant's health to be extradited and made plain that the taking of medication was the "lynch pin" of stability. At present he considered that the appellant functioned reasonably well under supervision. The District Judge in essence accepted Dr Jenkins' evidence.
That evidence has now been supplemented a report dated 16 October from Dr Ravi, the psychiatrist responsible for the appellant's care and treatment in the community. There has been no objection to the receipt of this further evidence. She reports that the appellant has attended appointments on a regular basis. The appellant has claimed compliance in taking medication. His mood and speech is normal, and there are no auditory or visual hallucinations. However, there have been some grandiose delusions as a result of which his medication has been increased. If he remains under treatment the risk of relapse is moderate to low. The appellant requires psychiatric supervision and treatment with anti-psychotic medication.
The reports show that the appellant had suffered from his condition for about 2 to 3 years. Dr Ravi described it as a chronic, severe and enduring mental illness, with a diagnosis of paranoid schizophrenia.
We have been invited to receive in evidence a transcript of the judge's sentencing remarks, at Blackfriars Crown Court on 16 March 2016. On that occasion the appellant was sentenced for the assault upon the two women already referred to. He received a 12 month sentence of imprisonment, suspended for 2 years with a mental health treatment requirement. Having considered the provisions of s.27(4) of the Act, and the decision in Hungary v Fenyvesi [2009] EWHC 231 (Admin) at paragraphs 28 to 36, we refuse to receive the transcript in evidence. In our judgment that evidence existed at the time of the extradition hearing and could with reasonable diligence have been obtained. Having considered the transcript de bene esse, we did not in any event consider that it materially advanced matters.
There are 3 grounds of appeal (1) extradition would be unjust and/or oppressive by reason of the passage of time, contrary to s.14 of the Act, (2) extradition would be incompatible with the appellant's private and family life rights protected by Article 8 ECHR, contrary to s.21A(1)(a), (3) extradition would be disproportionate contrary to s.21A(1)(b) of the Act.
Ground 1
In relation to s.14, the judge found that surrender would not be oppressive due to the passage of time. He accepted that the appellant was not a fugitive. He noted that there had been a delay of 6 years between the offence and issuing of the EAW. He found that the Polish authorities by implication were unaware of the appellant's whereabouts after he had left the country. He found that the appellant had been living openly in the UK since 2008, and that he had developed a serious mental health condition, namely schizophrenia which had led to a serious breakdown in 2015. He identified those as factors favourable to the finding of oppression, but found factors to the contrary.
He held that the offence was serious, that the victim's purported withdrawal statement denying that any robbery had taken place, dated 11 October 2015, was not properly substantiated, so that he attached little or no weight to it. He held that whilst there had been "some delay" it would not under domestic law lead to any conclusion that the appellant could not receive a fair trial.
As to the appellant's mental health condition, he held that that would not of itself lead to a conclusion that surrender would be oppressive, indicating that he would consider the matter in further depth in relation to submissions which had been made under s.25 of the Act. His analysis under that heading, which involved a consideration of Dr Jenkins' evidence supported by a witness statement from the appellant's mother, led the judge to conclude that without appropriate measures in place, extradition would almost inevitably lead to a serious relapse in the appellant's mental health.
On the other hand, the evidence was clear that if he received and took his medication, he was likely to remain well. There was no evidence that the appellant would not receive appropriate medical attention or medication in Poland. The burden of proof was on the appellant to show that he would not receive appropriate treatment in Poland, and he had not been able to show this. Whilst extradition would undoubtedly cause stress and hardship, it would not be unjust or oppressive to extradite him, so long as he received appropriate treatment.
Although the appellant challenged the judge's conclusion under s.14, this ground was not his primary ground of appeal. The point taken on this ground was that the judge had failed to look at what would have happened had matters proceeded promptly and had there been an early trial. Had that approach been taken, the judge would have been considering a man who did not face trial for an old offence, and who had not suffered a breakdown in his mental health, in circumstances where he would be put at risk of relapse if returned to Poland, and where a court in this country had recently dealt with a significant case against him in a non-custodial way, which enabled him to continue necessary treatment. Such delay as had taken place could be regarded as culpable, and if so, that could colour the judgment to be made on oppression. It was argued that the judge had not properly focused on oppression in the context of the passage of time, because he had in large measure dealt with the appellant's mental state in addressing submissions under s.25 which was concerned with whether the appellant's physical or mental condition was such that it would be unjust or oppressive to extradite him. That section involved a narrower approach from that under s.14.
The respondent's position was that in essence the judge in his s.14 conclusion had not been shown to be wrong within the meaning of Poland v Celinski [2015] EWCA 1274 at paragraph 24. The judge had considered relevant factors, including the length of delay, the gravity of offending and the appellant's mental health.
Conclusion on Ground 1
Those matters were indeed considered in the judge's ruling, and I do not think that he fell into error by leaving out of account the withdrawal statement, since in these proceedings evidential sufficiency is not a relevant matter, and since in any event the judge was unconvinced about the provenance of that statement. The question of any impact upon the appellant's mother were he to be extradited was, as Ms Iveson, for the Respondent, argued, better considered under a s.21A(1)(a) Article 8 submission rather than under a s.14 submission where the issue was whether extradition would have an oppressive effect upon on the appellant.
The focus of the appellant's submission was not on the risk of prejudice to the appellant in the event of trial, ("unjust"), it was on whether extradition would be oppressive by reason of the hardship caused to the appellant resulting...
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Marek Vajdik v Bratislava District Court (Slovakia)
...it; and (iii) failed to conclude that the delay was culpable. 14 Mr Hall relies on a number of authorities. In Dabrowski v Poland [2017] EWHC 179 (Admin), the Divisional Court allowed an appeal against the decision of a judge ordering the requested person's extradition for a street robbery......