R Roezner v Prosecutor General's Office of the Republic of Poland
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Elisabeth Laing |
| Judgment Date | 21 June 2018 |
| Neutral Citation | [2018] EWHC 1877 (Admin) |
| Docket Number | CO/4552/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 June 2018 |
[2018] EWHC 1877 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Mrs Justice Elisabeth Laing
CO/4552/2017
APPEARANCES
Ms Fiveson (instructed by Oracle) appeared on behalf of the Appellant.
Mr A Dos Santos (instructed by CPS) appeared on behalf of the Respondent.
This is an appeal from the decision of District Judge Lucie sitting at the Westminster Magistrates' Court (“the DJ”) on 4 October 2017 to order the extradition of the appellant to Poland. An application for permission to appeal was made on 4 October 2017. Sir Stephen Silber gave permission to amend the grounds of appeal and permitted the appellant to instruct a psychiatrist. Dr Sahota was instructed. He in due course produced a report.
There were two grounds of appeal at that stage. First, fresh psychiatric evidence showed that extradition would be a disproportionate interference with the appellant's Art.8 rights. Second, psychiatric evidence also showed that immediate extradition would be oppressive and contrary to s.25 of the Extradition Act 2003 (“the 2003 Act”).
The appellant was represented by Ms Iveson and the respondent by Mr dos Santos. I am grateful to both counsel for their extremely helpful written and oral arguments. Ms Iveson's overall position in relation to these two grounds of appeal was that the Polish authorities should be asked to take less intrusive or coercive forms of action in order to permit the appellant to be assessed in Poland by means of an iron letter in relation to his psychiatric condition. Mr dos Santos' position was that the Polish authorities had not sought an iron letter. There was an outstanding sentence of two years to serve for a very serious offence.
Permission to appeal was granted by Dove J on the papers on 26 April 2018. He said that it was “arguably proper” to admit the evidence of Dr Sahota about the appellant's psychiatric condition. It was arguable there was little or insufficient evidence there would be any appropriate arrangements in Poland to reduce the appellant's risk of suicide. It was also arguable that it was appropriate to extradite in the light of s.25(3) of the 2003 Act until his condition had stabilised.
Matters have moved on somewhat since the grant of permission to appeal in that the appellant now wishes the appeal to be adjourned pending the decision of the Divisional Court in Lis, Lang and Chmielewski v Poland, which was heard by a three-judge Divisional Court on 7 June 2018. The Court asked for further evidence to be submitted after the hearing and indicated that it might need yet further written submissions after the publication of the Advocate General's opinion in Celmer (Case-216-18), a reference to the Court of Justice of the European Union (“CJEU”) by the High Court in Dublin.
I am told by Ms Iveson that it was indicated to the Divisional Court in the course of the hearing that the CJEU was likely to hand down its judgment at the end of July, but also that the Divisional Court did not expressly ask for or indicate that it would like further submissions when that judgment was handed down.
The argument in short is that recent developments in Poland have so undermined the independence of the judiciary in Poland that it can no longer be seen as a “judicial authority” within the meaning of s.2 of the 2003 Act. Mr dos Santos accepts that it would be right to adjourn this potential ground of appeal pending the decision of the Divisional Court in Lis. I also agree. I take into account not only the respondent's expressed position, but the fact that it would be extremely difficult for the Court to express any view at all on this potential ground of appeal in the absence of the critically important impending decision of the Divisional Court on this point. Ms Iveson also asked for the whole of the hearing to be adjourned, including the Art.8 and s.25 issues pending the decision of the Divisional Court on the Lis question on the grounds that the appellant's situation is dynamic and it would be better for the Court to decide the Art.8 and s.25 issues together with the Lis question at the same time. I refused that application.
I must therefore decide the Art. and s.25 issues in this case.
The EAW
The EAW is a conviction EAW. The offence is a joint-enterprise armed robbery committed on 12 February 2012. The appellant and another, armed with a knife, stole a mobile phone, jewellery, cash, glasses, two credit cards, and other items from the complainant. She was kicked all over her body. The maximum sentence for that offence was a sentence of 15 years' imprisonment. On any view, it is a very serious offence.
The appellant was not present when the verdict was read out, but it seems from further information (seen in tab 9 of the bundle) that he was present for at least part of the trial process and may indeed have pleaded guilty at some stage. He was convicted and sentenced to two years' imprisonment, of which one year, five months and nine days are still to be served. He appealed unsuccessfully against his conviction. He was in hospital at the date of the appeal. His lawyer did not ask for an adjournment. The Polish authorities adjourned the sentence for a year on the grounds that his medical condition prevented him from serving his sentence. A further application to adjourn sentence was made in December 2015.
He was found to have left Poland in February 2016. He failed to attend four later appointments with psychiatrists. In August 2016 the Court refused to adjourn sentence further. The appellant was ordered to surrender to custody. He did not do so. A wanted notice was issued on 2 December 2016. It is clear from para.6(d) to (f) of the District Judge's decision that in taking steps to adjourn the appellant's sentence, and in responding to his further application to adjourn the sentence, the Polish authorities took active steps to inform themselves with relevant psychiatric evidence about the appellant.
The EAW was issued on 7 June 2017 and certified by the National Crime Agency on 29 June 2017. The appellant was arrested on 5 July 2017.
The hearing and DJ's decision
The hearing was on 31 August 2017. The appellant was represented and helped by an interpreter. He had been on conditional bail since the first hearing in the Magistrates' Court on 6 July 2017. He stayed in custody for a few weeks because a pre-release condition of security was not paid (see para.12(d)).
The judgment
The judgment was given on 29 September 2017. The DJ recorded (judgment para.8) that the appellant's representative abandoned challenges under s.2 and s.25 of the 2003 Act at the start of the hearing. The appellant adopted his proof of evidence and addendum dated 31 August 2017. He was cross-examined. The DJ listed other evidence which he heard in para.11 of the judgment.
At para.11(a) the DJ referred to a conviction for possession of drugs in Poland incurred on 24 November 2016. I note that the medical notes about the appellant's treatment in 2014 (see tab 15) show that in 2014 in Poland he was recorded when hospitalised as “reject[ing] suicidal thoughts and tendencies”. He discharged himself before the treatment was complete and, on discharge, was without any such thoughts or tendencies (see a document dated 19 August 2015). A recommendation of total abstinence from alcohol and drugs was made to him.
He received a caution in 2017 for possession of cannabis and for shoplifting in the United Kingdom. The DJ made findings of fact in para.12 of the judgment. The DJ did not rehearse all of the evidence, much of which was said not to have been in dispute.
The appellant had come to England in 2016 to join his family. He lives near them but not with them. They support him financially. He is not married and has no children. He served about seven months of his sentence, but had been released because of mental health issues. He had been admitted to a specialist psychiatric hospital in 2014 for about two weeks. His therapist noted that he must avoid “negative influences”. The medical notes describe his treatment and say that the cause of his psychotic disorder was “psychoactive substance abuse”; that is, of legal highs. Drinking alcohol and psychoactive substances were said to be “absolutely prohibited.” I note that it is clear from the contemporaneous notes that this admission to hospital occurred after the...
To continue reading
Request your trial