Sadowski v Circuit Court in Plock (Poland)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 31 January 2018 |
| Neutral Citation | [2018] EWHC 289 (Admin) |
| Docket Number | CO/2634/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 January 2018 |
[2018] EWHC 289 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
THE HON. Mr Justice Supperstone
CO/2634/2017
Ms H Hinton (Divers Chambers) appeared on behalf of the Applicant.
Mr M Hawkes (instructed by Kaim Todner) appeared on behalf of the Respondent.
Mr A Watkins (Matrix Chambers) appeared on behalf of the Interested Party.
The appellant seeks leave to reopen the determination of his appeal pursuant to CPR 50.27 and invites the court to allow his appeal pursuant to s.27 of the Extradition Act 2003. I am only concerned at this stage with the application for leave to reopen the determination of the appeal.
The appellant appeals against the decision of Deputy Chief Magistrate Tanweer Ikram delivered on 31 st May 2017, following a hearing which took place on 19 th January 2017, ordering his extradition to Poland in respect of a European Arrest Warrant issued on 30 th March 2015, which was certified on 22 nd April 2016. The warrant related to convictions for theft from a motor vehicle and street robbery, the offences for which had occurred in May 2011.
The appellant resisted extradition on two grounds, namely that it would be unjust or oppressive to extradite him by reason of his mental health and physical condition pursuant to s.25 of the Extradition Act, and that any extradition would amount to a disproportionate interference with his right to a private and family life under Art.8 ECHR contrary to s.21 of the Extradition Act.
His appeal against extradition was heard and dismissed by Dingemans J on 26 th October 2017, reported at [2017] EWHC 2861 (Admin). His application to reopen the appeal was refused on the papers by Elisabeth Laing J on 16 th November 2017.
On 22 nd November at an oral hearing, William Davis J ordered that the matter be listed for a rolled up application to reopen the determination of the appeal and substantive argument. The legal principles to be applied on reopening extradition appeals were considered recently in Seprey-Hozo v Law Court of Miercurea Ciuc, Romania [2016] EWHC 2902 (Admin) at paras 10–17.
At para.10 Cranston J said:
“The power of the High Court to reopen an extradition appeal is now contained in a specific rule, rule 50.27 of the Criminal Procedure Rules (“the CrPR”). Before rearrangement of the rules in October 2015, this was CrPR 17.27, which was introduced in 2014. Under rule 50.27(3)(b) the application to reopen the extradition appeal must 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.”
At paras.16 and 17 of his judgment, Cranston J referred to the case of United States v Bowen [2015] EWHC 1873 (Admin), a Part II case, where Burnett LJ, as he then, said that Crim PR rule 17.27 (now Crim PR rule 50.27) had a narrow scope. He said, at para.9:
“We would draw particular attention to the expectation that the jurisdiction under Crim PR 17.27 will not be exercised unless something has developed after the determination of the appeal. The jurisdiction is not designed to allow a disappointed party to the appeal to reconsider his arguments, material and evidence and come back to the court to have another go. Furthermore, we would emphasise the importance of finality in extradition cases by noting the observations of Lord Thomas in Abu Hamza v. Government of the United States [2012] EWHC 2736 (Admin) at [21] and [22], namely that there is an overwhelming public interest in both the proper functioning of extradition arrangements and in honouring extradition treaties, as well as there being an equally high importance in the finality of litigation. Finality of litigation is particularly important in extradition cases: ‘because of the public interest in an efficient process, the need to adhere to international obligations and to avoid a recurrence of the delays which have so disfigured the extradition process in the past and to which successive appeals over time can subject it’.”
Mr Hawkes, for the appellant, submits that it is necessary to reopen the case to avoid a real injustice, that the circumstances of the case are exceptional and that there is no alternative effective remedy.
At the hearing before the District Judge, the appellant relied on a report from Dr Harriss, a consultant in rehabilitative medicine, dated 18 th September 2016. His symptoms were listed as crude movement patterns, dysarthria, that is a difficulty articulating words with slurring and impaired phrasing; dysdiadochokinesia, namely an inability to perform rapid alternating movements; left eye blindness; mildly impaired cognition and cerebellar trauma affecting the left side. As Dingemans J noted at para.17 of his judgment, Dr Harriss described those impacts as profound. The appellant could no longer get up, stand up and walk. He was now entirely dependent on others, primarily his wife, for all aspects of daily living.
Dr Harriss gave evidence and was cross examined. As for Dr Harriss's conclusion that imprisonment would constitute a grave risk, Dingemans J said that the District Judge was not at all satisfied that the future is as grim as Dr Harriss's evidence suggested (para.25). Dingemans J added that if the issue of fact was before him to make finding he would have required some persuasion that Dr Harriss was an expert on whom the court could rely without more (para.48).
The appellant also relied before the District Judge on reports from Dr Nabavi, a psychiatrist, dated 17 th December 2016 and 24 th February 2017. Dr Nabavi concluded that the appellant suffered from major depression caused by his imprisonment. The depression and mental state had deteriorated following his suicide attempt and the injury to his eye and brain. Dr Nabavi commented on further information which was given by the Polish authorities on 17 th February 2017, shortly before the hearing before the District Judge.
At the hearing of the appeal, Dingemans J was asked to consider a further report from Dr Harriss dated 16 th October 2017. This commented on the appellant's updated statement, noting that there was now double incontinence because of the effects of the increased painkillers and escalating doses of antidepressants. Part of this report of Dr Harriss dealt with the issue of transit. He said:
“I should add that I can envision no safe manner by which Mr Sadowski could be repatriated on a flight from London to Warsaw; transport by car would be no safer, and in either instance, two medically trained carers would be required to try to ensure his physical safety and attend to his needs. He is so vulnerable that even these measures are likely to prove insufficient.”
In circumstances where this report is dealing with matters on which the appellant has updated the court and responded to further information, which itself post-dated the judgment of the District Judge, Dingemans J considered that he should admit it as fresh evidence. However, he went on to say that he did not exclude that final paragraph (which I have quoted) but that no reliance could be placed on it, it being wholly unevidenced and unsupported by reasoning.
In those circumstances, Mr Hawkes applied for an adjournment on the basis that further evidence could be obtained from Dr Harriss to explain his reasoning. Dingemans J refused the application. The report was only written very shortly before the appeal hearing. The judge commented there was no reason why if transportation was an issue, it was not raised in the evidence before the District Judge. At paras.38 to 40 of his judgment, Dingemans J set out his full reasoning for refusing the application.
The first ground on which the appellant applies for leave to reopen the appeal is that Dingemans J should have acceded to the appellant's application to adjourn proceedings in order to obtain further evidence from Dr Harriss. I do not accept this contention. The judge took a case management decision that he was plainly entitled to take for the reasons that he gave. There is no proper basis for the submission that he erred in law in so doing.
The second ground advanced for reopening the determination of the appellant's appeal is that the further evidence of Dr Harriss and Dr Nabavi should be admitted as it is said they go to the heart of the matter in issue, namely, the question of oppression and risk of serious permanent harm to the appellant consequent to the act of extradition. In respect of this ground, there is a further report from Dr Harriss dated 6 th November 2017, a witness statement from Dr Nabavi dated 6 th November and a witness statement from Mr Kendridge, the appellant's solicitor, dated 7th November.
Mr Kendridge states that on 3 rd October 2017, in anticipation of the appeal hearing, he had a conference with Mr...
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