Timothy John Wilby v The Municipal Court Prague Czech Republic
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wilkie |
| Judgment Date | 19 April 2012 |
| Neutral Citation | [2012] EWHC 1006 (Admin) |
| Date | 19 April 2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/9548/2011,CO/9548/2011 and CO/9577/2011 |
[2012] EWHC 1006 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Wilkie
Case No: CO/9548/2011
CO/9577/2011
Malcolm Hawkes (instructed by Sternberg Reed) for the Appellant Wilby
Gavin Irwin (instructed by Murrays Partnership) for the Appellant Halliday
Corinne Bramwell (instructed by Crown Prosecution Service) for the Respondent
Hearing dates: 29 March 2012
Introduction
These two appeals are listed to be heard together as their factual matrices substantially overlap, as do the arguments deployed by the appellants and the respondent. The requesting judicial authority in each case is the Municipal Court in Prague, in the Czech Republic. Each appellant is sought for extradition pursuant to a European arrest warrant (EAW) dated 28 th July 2010. certified by SOCA on 15 th August 2010.
In each case the warrant is sought for the purposes of conducting a criminal prosecution for one offence of illegal production and possession of narcotic and psychotropic drugs. They were arrested in Prague on 16 th March 2008 at the airport en route to the UK. The drug was said to be found in the luggage of the appellant Halliday. The maximum length of custodial sentence which may be imposed for the offence accused is 15 years.
They were each, initially, in different prisons but were, on different days, released, it would appear on medical grounds, and returned to the UK.
The extradition of each of them was ordered on 30 th September 2011 by DJ John Zani. In the case of each appellant it was argued that section 25 of the Extradition Act 2003 barred their extradition on the ground that it would be unjust or oppressive to extradite him by reason of his physical or mental condition. In the case of the appellant Timothy Wilby, in addition, he argues that extradition is barred by section 21 of the 2003 Act on the grounds that the UK would be in breach of its obligations under the European Convention on Human Rights (ECHR), in particular Articles 3 and 8, were he to be extradited. Article 3 provides that no one shall be subjected to torture, or inhuman or degrading treatment or punishment. Article 8 prohibits disproportionate interference with family or private rights. In addition, at the hearing of the appeal, Mr Wilby sought to rely on section 14 of the 2003 Act which bars extradition if it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence, or become unlawfully at large.
Timothy Wilby
Timothy Wilby was diagnosed HIV positive in 2003. He believes he contracted the disease in about 1999. Prior to his imprisonment in the Czech Republic he had relied on his own natural immunity to combat the illness together with close monitoring by his physicians.
A decrease in the CD 4 count to less than 200mm per cubic millimetre of blood is the diagnostic criterion for Aids and a clinical indicator of when to start anti retroviral therapy (ART).
By March 2008 he was suffering severe, painful and aggressive HIV related arthritis. His CD 4 count was close to 200. His doctor, Dr Gant, recommended commencing HAART (highly active ART) but postponed commencement of that treatment until after his return from the Czech Republic (thwarted by his arrest).
Mr Wilby contends that, by reason of what he regards as his wilfully negligent treatment in respect of his illness which he received in prison until his release on 30 th December 2008, as well as a serious subsequent ailment, to which I will return, the DJMC ought to have concluded that bars to his extradition arose under section 25 and section 21 (in relation to Articles 3 and 8 of the ECHR).
Mr Wilby and the judicial authority were in serious dispute about some of the facts around his detention and his treatment while still in detention, as well as in their respective perceptions of the reasons for what had happened. The DJMC, in his judgment, recorded the sequence of events, and identified certain of these conflicts, but made no specific findings, either as to the conflicts of fact, or as to the differences in interpretations of those facts. A preliminary issue I have had to determine is the basis upon which I should address those conflicts and disputes, which the parties were maintaining, as evidenced by their respective skeleton arguments. A number of factual disputes were identified, which were factual disputes rather than interpretations of events. In respect of each of them the position of the judicial authority was based on what they had said in response to various complaints and allegations made by the appellant. However, they did not furnish any primary documentation which would authoritatively support their version of events. I, therefore, ruled that, in so far as there were disputes as to what happened, as opposed to the interpretation of what happened, I would approach this appeal on the footing that the DJMC must have approached his task on the assumption that he should act on the version of facts which was most favourable to the appellant, and that I would similarly do so.
The main events can be summarised as follows. Mr Wilby was medically examined as soon as he was detained. He informed the judicial authority of his HIV status. He complains that night sweats nightly left his bed linen saturated and that he was not permitted to change the sheets more than more than once or twice a fortnight or shower more than twice a week. He was confined in his cell 23 hours a day and was fed through a cat flap food which he regarded as inedible. He was not provided with an interpreter, nor did the staff speak English. After his initial medical examination he was not taken to the AIDS clinic until August, some 5 months later. In the meantime Dr Gant provided a report in June that his CD 4 count called for access to medical care, failing which he would soon develop an infection which may kill him. A translation of this letter was not made available to the medical authorities until 25 th July 2008, following which he was sent for tests, starting on the 20 th August, leading to a report dated 17 th September which recommended prophylactics, ART, analgesics and hospitalization. The CD 4 count at that time was 127.
There came a point, after he had been to the HIV clinic, that his HIV status became common knowledge within the prison system and he was placed in solitary confinement with a black cross on his door about which a complaint was made by him and by the British Consulate.
Despite the recommendations of the medical report by the Czech doctors on 17 th September 2008, at no time was Mr Wilby prescribed ART. The detailed versions of how this came about differ but there is no dispute that Mr Wilby initially received some medication. It became apparent that he was having to pay for it out of his limited financial resources and, as a result, could not afford to buy food. As a consequence, he began refusing any medication. The position of the judicial authority is that this was evidence of his non-co-operation and, as a result, they did not prescribe ART.
The position concerning payment by a prisoner for medication was complex and required the prisoner to have health insurance, through which the cost of medication would be reimbursed. Mr Wilby, as a non Czech citizen, did not have the necessary health insurance and it took some time and the involvement of the British Consulate for the position to be rectified, which it was towards the end of November. Mr Wilby became the beneficiary of an EHIC (EU wide health insurance certificate) which would run for 3 months from the end of November, but which would secure payment for medication. There is a dispute as to whether, in addition, he signed forms in respect of a Czech based insurance company. That seems to be a side issue as, on any view, the ability to pay for medication through the EHIC came on stream towards the end of November.
In addition, Mr Wilby declined to be hospitalized within the prison system. There is a dispute whether he refused of his own volition, or was advised by the medical staff that it would be better for him not to go into hospital lest he be exposed to infection. Furthermore, it is a fact that, even after the EHIC came on stream, ART was not prescribed. The position of the Czech authorities is that he was still refusing to accept medication.
On 30 th December 2008 he was released from prison and had to make his own way out of the country and thence to the UK. No notice was given of his release, whether to Mr Wilby or to the British Consulate, but a relative wired the funds necessary to purchase an overnight bus ticket to enable him to return to the UK.
From the judicial authority's perspective, Mr Wilby's release arose from the continuing difficulty in obtaining his cooperation in accepting medical treatment. The recommendation of the regional medical commission to the prosecutor and to the court was that the investigation of his offence be accelerated and that he be released from custody and deported to his country of origin. That gave rise to the decision to release him.
Mr Wilby contends that the accumulation of his experiences whilst in custody could properly be described as wilful negligence and constituted a breach of Article 3 of ECHR. It is said by him that his treatment is cogent evidence that it would be unjust and oppressive, in light of his physical or mental condition, to extradite him to the same prison system where he had suffered such neglectful treatment over...
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