Okruch v Circuit Court in Rzeszow Poland
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,MRS JUSTICE RAFFERTY |
| Judgment Date | 20 April 2010 |
| Neutral Citation | [2010] EWHC 1047 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2168/2010 |
| Date | 20 April 2010 |
[2010] EWHC 1047 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before:
Lord Justice Pill
Mrs Justice Rafferty
CO/2168/2010
Miss C Bramwell appeared on behalf of the Appellant
Mr M Grandison appeared on behalf of the Defendant
: Mr Okruch, the appellant, appeals under Section 26 of the Extradition Act 2003 (“the 2003 Act”) against a decision of District Judge Tubbs, sitting at the City of Westminster Magistrates’ Court, on 10 February 2007. The judge found that the appellant's extradition —
“….. would be compliant with Convention rights and within the meaning of the Human Rights Act 1998 and, in accordance with Section 21 (3) of the [2003] Act, I order his extradition to Poland.”
The appellant's return to Poland was sought by the Circuit Court at Rzeszow, Poland, following a European arrest warrant (“EAW”) issued on 30 June 2008. Poland has been designated a category 1 territory under Section 1 of the 2003 Act, and Part I of the Act governs the procedures.
Three sentences of imprisonment had been imposed on the appellant in Poland for offences of burglary and robbery. His return is sought to serve the remaining part of the sentences imposed, a total remaining of about six years. The appellant was arrested on the EAW on 30 August 2009. There was a series of hearings at the Magistrates’ Court. Adjournments were granted. The case was heard on 12 January 2010. Further information was subsequently received from the judicial authority and further written submissions were considered by the judge before she gave judgment. As summarised by the judge —
“The issues raised by the defendant [now the appellant] at this extradition hearing are that by reason of his mental health and consequent risk of suicide if he were to be placed in a Polish prison his extradition would not be compliant with Convention rights in that Article 3 and Article 8 rights would be infringed (Section 21 of the Act) and it would be oppressive to extradite him by reason of his mental condition (Section 25 of the Act) and he should be discharged.”
The appellant gave oral evidence in detail. He admitted living a life of crime by theft and robbery when he was 18 to 19 years old. He had psychiatric problems. He served a sentence of six to seven months’ imprisonment, and claimed he had been beaten by other inmates though the judge found that that was not a matter raised in his unsigned proof of evidence. He had not reported these matters to prison officers. On one occasion he had deliberately cut his hand and on another occasion he had poured a caustic substance on his chest. These were not suicide attempts, he said. The appellant said he had served the last four months of his initial sentence in a more open prison and had been able to cope. On release he drifted back into drug-taking and crime, and served a further two-month prison sentence. In evidence, the appellant expressed a fear of similar treatment to that he had received previously if returned to a Polish prison. He had found no difficulty in coping with English prison conditions and was not on any medication.
The judge recorded the appellant's evidence in this way when asked how he would cope in a Polish prison:
“If it was a normal, quiet time he could cope. If it was like it was before he would grab every opportunity to get out. He would try and harm himself seriously. He closed his evidence-in-chief by saying he could serve his sentence if it was ‘normal’ in prison.”
The appellant had received no psychiatric diagnosis or treatment in the United Kingdom. He was also concerned about his mother who had come to the United Kingdom at his request. Her health was not good.
The judge also considered a psychiatric report dated 23 November 2009 from Dr Adrian Cree obtained in this jurisdiction. Dr Cree found no evidence of underlyimg major mental illness. The appellant did display traits of a mix of social and emotionally unstable personality disorder. He also displayed a harmful pattern of drug and alcohol abuse which at times had affected his mental state and behaviour. The underlying personality disorder was chronic in nature but not severe in degree. The judge summarised Dr Cree's evidence in this way:
“In his opinion Mr Okruch is currently at low risk of significant self-harm or attempted suicide. If returned to a harsh prison regime there would be a moderate to high risk that he would engage in increasing self-harming behaviour and a moderate risk that this behaviour may escalate to an act of suicide. With appropriate support and consideration in a prison environment these risks would remain low.”
That, in substance, is a summary of [paragraph] 12.15 of Dr Cree's report on which Miss Bramwell, who appears for the defendant, relies.
The judge also cited paragraph 10.13 of the report. I repeat the citation:
“In my opinion Mr Okruch's risk of suicide and self-harm are not linked to extradition per se but to the type of prison setting he experiences on his return to Poland. Mr Okruch has a significant degree of vulnerability given his underlying personality difficulties and would be easily victimised in a harsh prison environment. However if it is recognised by the Polish prison authorities and if there are facilities to take his vulnerabilities into consideration by placing him in a more appropriate peer group, then Mr Okruch's risk of self-harm and suicide would be low and his mental state would be likely to remain stable.”
In relation to Article 8, the judge stated that she understood the appellant's concern about his mother and that extradition to serve his prison sentence will be disruptive for both of them. She noted that the mother returns to Poland for medical consultation and tests. In any event, she is free to return to Poland when he does. She concluded that extradition would not breach Article 8 rights.
The judge also had before her three further reports. A report was submitted on behalf of the appellant by a Polish criminologist, Mr Pawel Moczydlowski. That had been prepared for another extradition case; it was dated 25 October 2009 and provided evidence about prison conditions in Poland. The judge also had before her a letter from Judge Marek Omelan dated 14 December 2009 and a letter from the judicial authority dated 18 January 2010. There is no reason to doubt that the judge took the contents of those reports into account when reaching conclusions though—unlike the evidence of the appellant himself and of Dr Cree—the contents of the reports are not summarised.
Miss Bramwell submits that on the evidence the judge had not been entitled to find that return to Poland would be compliant with Article 3 of the Convention. She relied on the criminologist's report. It was acknowledged at paragraph 17 of the report that forensic psychiatric wards do exist in Poland. They provide specialist care to prisoners and individuals who are under temporary arrest who are incapable of rationally coping with prison isolation due to disturbances of their mental functioning. However it is submitted in the report that the psychiatric facilities are inadequate (paragraph 18):
“The judiciary and psychiatrists should also show more interest in people who are diagnosed as being mentally ill, based on forensic psychiatric observation, and freed of criminal responsibility because of their insanity. Such people often spend many months in inappropriate conditions, waiting for admittance to a psychiatric hospital. It seems that the rules of law need to be modified so that the mentally ill who commit an offence are not treated arbitrarily. And public psychiatric hospitals should not refuse to admit such patients, as they are people who deserve the same human treatment as other mentally ill people.”
A description of facilities followed and it is stated that in 2003 to 2005 the average waiting time for psychiatric hospitalisation was 205 days. Reference was made to the over-population of Polish prisons. It was accepted that the number of suicides in Polish prisons compared with those in other EU countries is low. The letter from the judicial authority makes the point that it is lower than in England and Wales.
Mr Moczydlowski, who was until 1994 the General Director of Prison Administration in Poland, refers to—and Miss Bramwell relies on—the decision of the European Court of Human Rights in Musial v Poland Application No 28300/06, final judgment given on 5 June 2009 following a referral in June 2006. That was a case where the Polish Government was found to have been in...
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