Katarzyna Berk, R (on the application of) v District Court of Olsztyn [2009] EWHC 3583 (Admin)

Case No CO/407/2009[2009] EWHC 3583 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 18th December 2009
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE WYN WILLIAMS
Between
THE QUEEN ON THE APPLICATION OF KATARZYNA BERKClaimantv
Between
DISTRICT COURT OF OLSZTYNDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr J Atlee (instructed by Messrs Atlee Chung & Company) appeared for ClaimantMs Clair Dobbin (instructed by Crown Prosecution Service) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE WYN WILLIAMS: This is an appeal against an order made by District Judge Wickham, the Deputy Senior District Judge of the City of Westminster Magistrates' Court, who, on 14th January 2009, ordered the extradition of the appellant to Poland. The appellant is a Polish national.[2]I can take the relevant factual circumstances substantially from the judgment of District Judge Wickham. In around October 2003, the appellant, who was then living in Poland, committed an offence of damaging a motorcar. As I understand it, she apparently damaged two wing mirrors and dented one of the doors. On 19th April 2004, the District Court in Olsztyn sentenced her to a term of six months' imprisonment for that offence.[3]On the 15th August 2004, the appellant committed an offence or offences against two of her children. The allegation found proved against the appellant was that she had left or abandoned her children, one aged seven, the other a baby of one month, at least during a period amounting to some hours. On 8th December 2004, the same district court sentenced her to the period of 12 months' imprisonment in respect of that offence. As I understand it from the papers before me, the appellant was present in court when she was sentenced on 19th April 2004 but she was not present when sentenced on 8th December 2004. There is apparently a method of confirming sentences in Poland and the sentences were confirmed respectively on 11th April 2005 and a date in December 2005.[4]The appellant came to this country with her husband and three children. A warrant for her extradition was issued by the judicial authority in Poland on 14th December 2006. It was certified in this country on 19th February 2007 and the appellant was arrested in consequence of the warrant on 20th February 2007. She remained on bail until she was arrested for an offence committed within this jurisdiction. In November 2007 she was arrested for the offence of possessing an imitation firearm. At that time, as I understand it, she was remanded in custody in respect of that alleged offence, as it then was, but she was also remanded in custody in consequence of her pending extradition.[5]In March 2008, the appellant was sentenced to two and a half years' imprisonment by a court in the United Kingdom. Everyone has proceeded on the basis that her earliest release date from that sentence of imprisonment was 12th February 2009. That is not surprising to this court. The appellant was sentenced to a term of less than four years and in consequence would have been eligible for automatic release having served at least part of that sentence. It is commonly the case that prisoners are released even before serving half of her sentence.[6]It is worth noting that, prior to her arrest under the arrest warrant, the appellant had been separated from her children. I need not detail the circumstances particularly. It suffices to say that the local authority in England in whose district the appellant and her children were then living decided that it was appropriate to remove the children from the appellant and take them into care. I understand that an interim care order was made in respect of all three children on 1st March 2007 at the request of or by the relevant local authority.[7]When the hearing relating to the proposed extradition of the appellant took place before District Judge Wickham on 28th November 2008, the District Judge did not hear oral evidence but proceeded on the basis of a number of sources of evidence, all in documentary form. An important source of evidence was a medical report. The District Judge had before her psychiatric evidence upon the appellant which can be summarised thus. As of November 2008, the appellant was suffering from a psychiatric illness which was described as a severe adjustment disorder with symptoms of a moderately severe depressive illness linked to suicidal ideation. It was also the case that there were obsessional symptoms and evidence of self harming which in turn was linked to the enforced separation between the appellant and her children. On the basis of that medical evidence, the submission made on behalf of the appellant was that the condition in section 25(2) of the Extradition Act 2003 was satisfied, namely that the physical or mental condition of the appellant was such that it would be unjust or oppressive to extradite her.[8]The District Judge engaged with that submission. She found that the appellant did suffer from the psychiatric illness which I have just described. She referred to some of the cases in this field and identified that the threshold is high for satisfying the test that it would be unjust or oppressive to extradite a person to a Convention country on the basis of mental health problems. The District Judge expressed her conclusions in the following passage of her judgment:
"Mrs Berk has been convicted and sentenced. This court has evidence, albeit rather sparse, of psychiatric treatment being available within the prison system in Poland. This court does not doubt the reality of the defendant's suicidal thoughts and tendencies and that she has engaged in any number of self-harming acts but it would not be unjust or oppressive to return her to Poland to serve the sentence which she has sought to evade since 2005. She is more likely to be reunited with her children in Poland than she is in the United Kingdom. I therefore reject the Section 25 submissions."
I should have said earlier in this judgment as part of the chronology that it seems that, following the interim care order made in early 2007, the three children were returned to Poland and were being cared for in Poland at the time of the hearing before the District Judge by members of the appellant's extended family or that of her husband.[9]The District Judge was also asked to consider whether or not the appellant's rights under Article 8 of the European Convention on Human Rights would be infringed in the event of her extradition to Poland. The District Judge dealt with the point shortly in her judgment. She said: "I do not find there are any features of this case that are sufficiently striking or unusual such that it would be disproportionate to interfere with her Article 8 Rights..." [She then quoted the case of Deirsyte v the Prosecutor General's Office of the Republic of Lithuania, a judgment in December 2008.][10]As I have said, this is an appeal against the decision of District Judge Wickham. The notice of appeal identifies three grounds. Ground 1 alleges that the Deputy Senior District Judge erred in deciding that it would not be unjust or oppressive to extradite the appellant as a result of her physical or mental condition pursuant to section 25(2) of the Extradition Act 2003. Ground 2 alleges that the Deputy Senior District Judge erred in deciding that there would no features of the case that were sufficiently striking or unusual such that it would be disproportionate to interfere with the appellant's right pursuant to section 8 of the European Convention on Human Rights. Ground 3 alleges that the Deputy Senior District Judge erred in deciding that it would not be oppressive to extradite the appellant by reason of the passage of time pursuant to section 14 of the Extradition Act 2003.[11]Before me this morning, Mr Atlee, on behalf of the appellant, accepts and concedes that ground 2 cannot succeed. He has not sought to advance it and therefore I say no more about it. He has also, with respect to him, relegated grounds 1 and 3 to what can be described as his less important points. That is because, in supplemental submissions advanced for the first time today, he takes a point which he submits must lead me to the view that extradition should not be ordered.[12]The basis for his submission is the Council Framework Decision of 13th June 2002 (2002/584/JHA). In particular, Mr Atlee focuses upon Article 3 of the Framework Decision. That is headed "Grounds for mandatory non-execution of the European arrest warrant". Subparagraph (2) reads as follows:
"if the executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State;"
Mr Atlee submits that in effect the appellant has been serving her sentence or has been serving a sentence in respect of the offences of causing damage and abandoning her children ever since her remand in custody in this country in November 2007.[13]I cannot accept that that is the correct analysis as a matter of fact as to what has happened. There is no suggestion in my judgment that any judicial authority in this country has either adjudicated upon the alleged offences committed in Poland or has passed any sentence in respect of those offences. Further, as I understand it, it is not suggested that any other member state, by which phrase I mean a state other than Poland, has adjudicated upon those offences or passed sentence in respect of those offences.[14]Accordingly, as it seems to me, the criteria laid down in Article 3(2) are simply not met. It is common ground that the phrase "executing judicial authority" at the beginning of Article 3(2) is a reference to the authority in the United Kingdom. The authority in the United Kingdom has not been informed that the requested person has been finally judged by a member state in respect of the same acts or in respect of the same sentence as was imposed by the judicial authority in Poland. It does not seem to me therefore, to repeat, that the basic criteria set out in Article 3(2) are met in this case. In my judgment, the appellant cannot rely upon this article in order to persuade this court that it should refuse extradition.[15]It is also worth observing that this article is addressing not whether extradition as such should be ordered but whether or not an European Arrest Warrant should be executed. It is that to which the article relates. No suggestion has ever been made, or could be made in my judgment, on the basis of Article 3(2) that the executing judicial authority in this country should have refused to execute the European arrest warrant which emanated from Poland. In my judgment, therefore, the appellant cannot rely upon this provision. As Ms Dobbin points out, in any event this is a provision within the Council Framework Decision. The Extradition Act 2003 deals with the issue of double jeopardy in section 11. I need not quote from section 11 but it is quite clear that section 11 is addressed at a wholly different factual state of affairs than that which is appertaining in the current case. Accordingly, I would not be prepared to allow the appeal on the basis of Mr Atlee's submissions as they relate to Article 3(2).[16]Mr Atlee also relied upon article 26 of the Council Framework Decision. That reads:
"The issuing Member State shall deduct all periods of detention arising from the execution of a European arrest warrant from the total period of detention to be served in the issuing Member State as a result of a custodial sentence or detention order being passed."
[17]It seems to me to be clear that this provision is directed at an issuing member state, ie Poland. On the plain wording of the Council Framework Decision, Poland will have a obligation to deduct all periods of detention arising from the execution of the European Arrest Warrant from the total period of detention to be served as a consequence of the decisions of the Polish court. It may very well be, although I cannot pass a definitive judgment upon it, that there will be substantial periods of detention to be deducted in Poland. I say that for the obvious reason that, if, but for the arrest warrant, the appellant would have been released in the United Kingdom in February 2009, it follows that her detention since that time arises from the execution of the European Arrest Warrant and on the face of it that period of time would fall to be deducted from her period in detention in Poland. Ultimately, of course, that is a matter for the Polish court or the Polish authorities but, to repeat, that does appear to be me to be the plain result of Article 26.[18]That fact of course impacts very substantially upon Mr Atlee's fallback position, namely that it would be oppressive to order extradition. In short, all periods of detention properly referable to the execution of the arrest warrant in this country will be deducted in all probability from the period to be served in Poland once the appellant is returned. That will very probably mean that her period of detention in Poland will be comparatively short. That is a factor which militates against the proposition that her return would be oppressive.[19]The second factor which militates against such a conclusion is the one identified by the District Judge. The return of the appellant to Poland is in all probability the most likely way in which she will be reunited in some form or another with her children, which this court has to assume is an aim which she wishes to further. That being so, to repeat, her extradition, far from being oppressive, would facilitate a laudable aim.[20]The third issue which has to be considered with some care in relation to whether or not the extradition will be oppressive is the mental health of the appellant. At the time the matter was before the District Judge, it is clear that the appellant's mental health was a cause for some concern, albeit that the District Judge did not consider that it was such so as to make it oppressive to order her extradition. Since this appeal was launched, and by virtue of a direction made by Silber J, there is before the court a further psychiatric report upon the appellant prepared by Dr Richard Noon. His report is dated 28th September 2009. I need not set out the contents of that report in any detail. It suffices that I record openly that Dr Noon's opinion was that the appellant did not suffer at the time of his examination from any severe or enduring mental illness. Specifically, she did not suffer from a psychotic disorder or from any major disorder of mood. He accepted that there was evidence to show that she had suffered from a depressive disorder which had been at times of moderate severity and that she continued at the time of his examination to show some evidence to suffer depression to some extent. Overall, however, his conclusion was that the appellant was suffering from a depressive order of a mild degree. Dr Noon expressed the view that the appellant's mental condition was not of a nature or degree which required her to be in hospital and as a consequence he advised that she be removed from hospital where she had been for some months and returned to prison.[21]As a matter of fact, I do not know whether that has occurred, although, as it seems to me, it does not matter from the point of view of my decision whether a physical removal has taken place from hospital to prison. The most recent medical evidence therefore falls far short of that which would be required to persuade the court that it would be oppressive to order extradition. To be fair to Mr Atlee, he openly acknowledged as much during the course of his helpful oral submissions.[22]Despite the attractive arguments presented by Mr Atlee, I am firmly of the view that the District Judge was correct in her assessment of the application before her and that on the material presented to her she was fully entitled to order extradition. I am also satisfied that the legal point taken by Mr Atlee before me, not available to him before the District Judge, does not result in a view that I should not order extradition. For the reasons I have sought to elucidate, it does not seem to me that Article 3(2) of the Framework Decision prevents me from upholding the order of the District Judge. Accordingly, for all those reasons, I propose to dismiss this appeal and the order of the District Judge is upheld.[23]MR ATLEE: My Lord, could I ask that I should be legally costs assisted?[24]MR JUSTICE WYN WILLIAMS: Yes. The appropriate order for legal aid assessment will be made.[25]MR ATLEE: I am obliged.

MR JUSTICE WYN WILLIAMS: Thank you very much.

Cited in 1 later judgment