Mariusz Szentak v Regional Court of Lublin (Poland)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Collins Rice |
| Judgment Date | 27 June 2023 |
| Neutral Citation | [2023] EWHC 1596 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4283/2021 |
[2023] EWHC 1596 (Admin)
THE HONOURABLE Mrs Justice Collins Rice
Case No: CO/4283/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Martin Henley (instructed by AM International Solicitors) for the Claimant
Mr Jonathan Swain (instructed by the Crown Prosecution Service) for the Defendant
Hearing date: 23 rd February 2023 (adjourned)
Approved Judgment
This judgment was handed down remotely at 10.30am on 28 th June 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
THE HONOURABLE Mrs Justice Collins Rice
Background
Mr Szentak's extradition to Poland was sought by way of a conviction warrant issued by the Polish judicial authority on 23 rd June 2020 and certified by the National Crime Agency on 16 th September 2020. The conviction was for an offence of assault committed on 15 th October 2016. A sentence of one year and 6 months' imprisonment was imposed, all of which remains to be served.
His extradition was ordered by District Judge Zani, after a hearing, on 13 th December 2021. He had resisted extradition on grounds including a medical condition causing back pain. In concluding that extradition would be consistent with Mr Szentak's rights under Article 8 of the European Convention on Human Rights, the District Judge observed:
I have taken into account MS's medical issues. The most recent information provided to the court does not state that surgery is considered inevitable (and is certainly not imminent). He has been discharged from the Pain Management Clinic and he is continuing to take prescribed medication for his back pain. There is no suggestion that such (or similar) medication is not available in Poland.
Mr Szentak applied for permission to appeal on grounds including that the Judge had placed insufficient weight on his medical problems for the purposes of considering whether extradition was consistent with Article 8 ECHR.
Permission to appeal was refused on the papers by Cavanagh J on 11 th March 2022. A renewed application for permission to appeal was lodged out of time, with a request for an extension of time. The application for an extension of time was refused on the papers by Wall J on 8 th April 2022, including because he did not consider the proposed grounds of appeal reasonably arguable.
On 12 th April 2022, understanding extradition to be imminent, Mr Szentak made a serious attempt to take his own life by hanging himself at home. He was fortuitously rescued (just in time) by a visitor, resuscitated by paramedics, and admitted to hospital. He was transferred to an inpatient psychiatric unit for assessment on 14 th April, and discharged on 18 th May 2022.
Mr Szentak made an application on 26 th April 2022 to reopen his appeal. The application was heard by Saini J on 4 th May 2022. The Judge gave directions for:
— a ‘rolled-up’ hearing of (a) the application to reopen, and if granted (b) the application for permission to appeal, and if granted (c) the substantive appeal;
— Mr Szentak not to be removed in the meantime; and
— the disclosure of Mr Szentak's medical records, and the obtaining of an expert psychiatric report.
A psychiatric report was obtained on 13 th July 2022 from Dr Pamela Walters, consultant in forensic and addiction psychiatry. It records an account of Mr Szentak's having been involved in two traumatic car crashes, in 2000 and in 2004, in one of which a friend was killed, and which caused spinal injury and an associated chronic pain condition. A related diagnosis of depression had been made in 2019, following a suicide attempt in 2018. Dr Walters considered Mr Szentak to be exhibiting symptoms of post-traumatic stress disorder, and also diagnosed moderately severe depression. She considered this ‘psychiatric dual pathology’ to be complicated by his poor physical health and chronic pain. She considered that treating Mr Szentak's chronic pain issues, and his PTSD, would lead to better outcomes for managing his depression; in the absence of such treatment his prognosis would be poor and would increase the risk of suicidal thoughts and actions, and there would be an extremely high risk of further deterioration. She considered there to be a high risk of his completing a suicide, and that extradition would be a trigger for him contemplating it.
Mr Szentak's medical records were obtained in October 2022. They included a letter of 25 th May 2022 from Mr Rath, his spinal neurosurgeon, indicating that he had been offered spinal surgery and was on a waiting list for an operation.
Legal framework
(a) Reopening extradition appeals
Criminal Procedure Rule 50.27 makes provision in relation to an application to reopen an extradition appeal as follows:
Reopening the determination of an appeal
50.27.—(1) This rule applies where a party wants the High Court to reopen a decision of that court which determines an appeal or an application for permission to appeal.
(2) Such a party must—
(a) apply in writing for permission to reopen that decision, as soon as practicable after becoming aware of the grounds for doing so; and
(b) serve the application on the High Court officer and every other party.
(3) The application must—
(a) specify the decision which the applicant wants the court to reopen; and
(b) give reasons why—
(i) it is necessary for the court to reopen that decision in order to avoid real injustice,
(ii) the circumstances are exceptional and make it appropriate to reopen the decision, and
(iii) there is no alternative effective remedy.
(4) The court must not give permission to reopen a decision unless each other party has had an opportunity to make representations.
Guidance on this test was provided by the Divisional Court in its ‘supplementary judgment’ in USA v Bowen [2015] EWHC 1873 (Admin) at [6]–[9], including as follows:
7. … In McIntyre v Government of the United States [2014] EWHC 1886 (Admin) at [11] Lord Thomas CJ identified the principles which should apply to the question whether exceptionally to avoid real injustice an application under section 108 should be heard by this court:
“The court should simply give effect to the statutory language having regard to its statutory context and purpose:
i) It is well established that all issues relating to the extradition of a requested person under Part 2 of the 2003 Act should be raised at the extradition hearing before the District Judge.
ii) On any appeal to the Divisional Court the court only considers such issues as have been raised, subject to s.106(5) (a) and (b) of the 2003 Act, as explained by Sir Anthony May PQBD in Hungarian Judicial Authorities v Fenyvesi [2009] EWHC 231 (Admin) at paragraphs 32–35 in relation to the equivalent provision in Part 1 (s.29(4) (a) and (b)).
iii) The decision on the extradition hearing (if there is no appeal) or of the Divisional Court or Supreme Court (if there is an appeal) is intended to bring finality to the extradition proceedings; the Home Secretary is thereafter under an obligation to extradite within strict time limits.
iv) Exceptionally events can occur after the decision on the extradition hearing (if there is no appeal) or of the Divisional Court or of the Supreme Court (on any appeal) which would make extradition incompatible with the requested person's human rights.
v) It was determined by Parliament that it is not apposite that the jurisdiction to determine these issues should remain with the Home Secretary.
vi) The provisions of s.108 (5)-(8) are therefore intended to permit the determination of such issues by the courts by way of an appeal. The express language of the new provisions makes it clear a court can only consider such an appeal if it is both necessary to avoid a real injustice and the circumstances are exceptional and make it appropriate to consider the appeal.
vii) It is not necessary to embellish that language. It is evident from the statutory purposes that a requested person will ordinarily have to establish that the issue arises as a result of a supervening development or event. It will also be necessary to provide a reasonable explanation why the issue was not anticipated at the extradition hearing or on any appeal.
viii) Any application under s.108(5)-(8) must be brought promptly. The evidence relied on should be filed with the application or within a period immediately thereafter to be measured in days, not weeks. The court must make arrangements for the rapid hearing of the application. It may be desirable for appropriate directions to be given immediately in writing by the Master of the Administrative Court. Strict compliance with the directions must be observed (or a variation sought from the court). The matter should generally be determined at a single hearing to avoid delay. However, though such applications will be rare, the practice we have outlined should be reviewed in the light of experience.
ix) Applications under the new provisions must not be used to bring about undue delay to the process of extradition.”
8. In our judgment these principles apply with necessary modifications to an application to reopen under the Crim PR. Such an application is not limited to Human Rights grounds. Subparagraph (v) has no application in the context of this case nor (viii), in the first instance, because Crim PR [50].27 envisages a leave stage, which will be conducted on paper. There is, in addition under this rule, the requirement that there should be no alternative effective remedy. It is very difficult to envisage that such an application could be made whilst there is an outstanding application for certification.
9. We would draw particular attention to the...
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