Wagner v The Court of Justice Miskole Hungary [2013] EWHC 246 (Admin)

Case No CO/414/2013[2013] EWHC 246 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 24 January 2012
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
Between
WAGNERAppellantv
Between
THE COURT OF JUSTICE MISKOLE HUNGARYRespondentCOUNTY COURT IN BORSUD-ABAUJ-ZEMPLIN HUNGARYRespondent
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 7404 1424(Official Shorthand Writers to the Court)
MR KISS-WILSON (instructed by Goldkorns LLP) appeared for AppellantMR D STERNBERG (instructed by CPS Extradition Unit) appeared for Respondent
J U D G M E N T
[1]MR JUSTICE COLLINS: There are before the court, technically, three appeals against extradition warrants which request the return of the appellant to Hungary to face what are now convictions for a number of different offences. The reason why there were three was because, originally, one of the warrants was an accusation warrant, and that covered some five offences of robbery and theft, and that was issued in November of 2011 and certified in February of 2012. In addition, there was a conviction warrant which related to offences of robbery theft and assault, for which a total sentence of some 13 months and nine days remained to be served. However, the accusation warrant has since been withdrawn and a conviction warrant for those offences has been substituted.[2]The original decision which directed return for the accusation and the conviction warrant was before District Judge Snow, on 11 July 2012. The decision in relation to the substituted conviction warrant came before District Judge Grant and was dealt with by him as recently as 13 January. The result of the substitution of the conviction for the accusation warrant is that the accusation warrant is now withdrawn, and so the appeal in relation to that accusation warrant clearly has to be allowed, and that is now disposed of. That leaves the two conviction warrants. The total amount to be served in relation to the conviction warrant that was dealt with by Judge Grant is one year and three months. Accordingly, the total due to be served by this appellant, if he is returned, is some two years, four months and nine days. That will be reduced by the period that he has spent in custody in this country, which is at least six months, and I suspect a little more than that.[3]The grounds of appeal in relation to both outstanding warrants are the same, namely, under section 25 of the Act, that it would be oppressive to return him because there is a real and indeed, it is said, a high risk of suicide. The matter came before me last year and, on 27 November 2012, I directed that it should be adjourned, in order that a psychiatric report could be obtained. The information then before me was that he was on 24 hour suicide watch and so it appeared that there might possibly be a sufficiently high risk to justify a decision in his favour under section 25.[4]There has now been obtained a report from a psychiatrist, a Dr Paisel. He saw the appellant on 7 December last and his report is dated the 9th. He had access to the prison medical notes and also a psychiatric report on the appellant, which had been prepared by Hungarian psychiatrists in September 2010 and which concluded that he suffered from a personality disorder but not a mental illness or intellectual disability. This was obtained because he had been arrested in Hungary for an offence and there were concerns about his mental state in Hungary, and so it was necessary to obtain such a report.[5]Dr Paisel indicates, from the medical reports obtained whilst the appellant was in the Young Offenders Institution here, that he was assessed as suffering from what is called an adjustment disorder but was not found to be clinically depressed. He was stressed but, so far as suicide attempts were concerned, he said that he had done so but there was no evidence that he actually made any serious attempt, but it went a little further than expressed desire to commit suicide, and which led, because of the view taken of his mental state, to his being on 24 hour watch. He apparently described a family history of suicide and that he had been a heavy drinker in Hungary but he said that he had given up drink but he had, he said, self-harmed on a number of occasions. The view of Dr Paisel was that he did not suffer from severe mental illness and he did not present with any clear-cut symptoms consistent with psychosis or depression. He was sleeping well and the diagnosis of adjustment disorder is a diagnosis usually given to someone in a state of subjective distress and emotional disturbance. Such disorders are often associated with suicidal thoughts and attempts but usually prove, when the underlying stresses are removed, not to be serious. The stresser here is, on the face of it, the concern that he is to be extradited to Hungary.[6]The view of Dr Paisel was that his risk of suicide was at present increased, that there was previous self-harming, both in and outside the prison environment, and ongoing suicidal thoughts. He put the risk of suicide as high, rather than extremely high, on the basis that there was no underlying mental illness and the suicide risk was currently managed in prison. It follows clearly that it could be managed, provided the proper care is taken, in prison in Hungary. The doctor's conclusion was that his mental health needs could be met by prison primary care, drawing on mental health treatment that could be available; and he was medically fit to travel but, due to the high suicide risk, consideration should be given to him remaining on constant observation by the staff transporting him. He did not think the suicide risk was likely to change significantly while he remained in prison in this country, although further reassurances about his safety in the Hungarian prison system might be helpful.[7]This morning, Mr Kiss-Wilson put before me a report from a lawyer who had been instructed on his behalf in Hungary. What that report states is, so far as material:
"In the event that the foreign authority finds that there is a high risk of suicide and reports it to the Hungarian authorities, then there is an opportunity for the defendant to be taken straight to a high security cell to make sure he is unable to commit suicide. Once the first stage is completed and the defendant is under observation, he will have to commit to a series of psychiatric examinations. Depending on the results, he would be placed into a prison specifically for prisoners with health problems."
The lawyer indicates that, if in a regular prison, he could be under observation but the efficiency of the system was not necessarily good enough to cover the possibility of suicide.[8]The Hungarian authorities, on the evidence, are well aware of their obligations under the European Convention on Human Rights generally to ensure that those in custody in Hungary do not self-harm and, of course, do not go further and commit suicide. There is the availability of care; indeed, we know that the original report from Hungary was obtained because of concerns about his mental state when he was arrested for an offence in June 2010.[9]So far as this country is concerned and the law in relation to extradition, it is clear that nothing less than what has been described as a very high risk of suicide can suffice to justify a refusal to extradite. There is, in relation to a Category 1 territory a presumption that proper steps will be taken to ensure that a prisoner with medical problems, whether mental or physical, will be properly looked after to ensure that his condition does not deteriorate and, of course, that there is no reasonable possibility that he would be able to commit suicide, if that concern is a reality.[10]This case, on the evidence that I have seen, does not come near, I am afraid, to crossing the necessary threshold. I do not need to refer to the specific cases which set all this out; suffice it to say that the risk that is referred to is, as I say, insufficient. However, having said that, it is important that the Hungarian authorities are fully aware of all the medical reports and the history of this appellant, and know that the psychiatrist who has seen him, an independent psychiatrist, has clearly taken the view that the risk of suicide is a high one. That is consistent with him being on 24 hour watch in this country.[11]The Young Offenders Institution must produce copies of all the notes and those, together with the report from Dr Faisel must accompany the appellant when he is returned to Hungary. Steps must be taken in liaison with the Hungarian authorities to ensure that the process of extradition, that is removing him from this country and taking him to Hungary, is carried out in a way which ensures that he is kept under sufficient watch to ensure that there is no opportunity given for him to self-harm or commit suicide.[12]Subject to those requirements, these appeals must be dismissed.[13]MR KISS-WILSON: Thank you very much, my Lord. Can I ask for the usual assessment for legal aid on both appeals?[14]MR JUSTICE COLLINS: Of course. I think it would be desirable, Mr Sternberg, that the order contains the direction, or the order that the prison must produce all those records.[15]MR STERNBERG: Yes, I have made a note of them, my Lord.[16]MR JUSTICE COLLINS: You have made a note of them and you can pass them on, also, to the CPS to pass on to the Hungarian authorities. There must be proper liaison.[17]MR STERNBERG: Indeed, yes.

MR JUSTICE COLLINS: You do not know why he was brought up? It certainly was not your request?

[19]MR KISS-WILSON: No, my Lord, it wasn't on my request.

MR JUSTICE COLLINS: It was not on your request either?

[21]MR STERNBERG: No, my Lord. I think I saw an email that said that, the appellant being represented, the production order was to be cancelled.[22]MR JUSTICE COLLINS: There had been a production order, had there, at some stage? That may be what has happened, someone did not realise that the production order had been cancelled. I will get the court to check that. It looks to me as if it may be a court error. All right. Certainly it was neither of you had anything to do with it? I do not mean you personally, I mean your side? No. All right.

Cited in 1 later judgment