Bobbe v Regional Court in Bydgoszcz, Poland [2017] EWHC 3161 (Admin)

Case No CO/1507/2014[2017] EWHC 3161 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/11/2017
Before
LORD JUSTICE HICKINBOTTOMMR JUSTICE GREEN
Between
JANUSZ BOBBEAppellantREGIONAL COURT IN BYDGOSZCZ, POLANDRespondent
Mark Summers QC and Joel Smith (instructed by Lansbury Worthington Solicitors) for AppellantSaoirse Townshend (instructed by The Crown Prosecution Service) for RespondentHearing Hearing date: 18 October 2017
JudgmentMR JUSTICE GREEN :
[1]This appeal raises issues about the obligations owed by transferring states to requested persons suffering from mental health issues to assess: fitness to stand trial in the requesting state; the risks to health caused by the physical process of transfer, and, the approach to be taken to those who present as a suicide risk. It is said by the appellant that the analysis of such issues has been significantly modified by a recent decision of the Court of Justice of the European Union (“CJEU”) in Case C-578/16 PPU, CK and others v Slovenia (16th February 2017) (“CK”).[2]The appellant, Janusz Bobbe, appeals the decision of DJ Brennan of 21st March 2017 ordering his extradition to Poland pursuant to a European Arrest Warrant (EAW) issued by Judge Anna Warakomska, of the Regional Court of Lublin, Poland (“the Respondent”) on 10th May 2016. The EAW covers both conviction and accusations. The offences and charges relate to a series of aggravated burglaries committed by a group of men who used violence and weapons and who targeted vulnerable people. The appellant is a fugitive from justice. He suffers from schizophrenia or psychosis. He is a chronic alcoholic. He argues that:(i) he is unfit to stand trial in Poland and no (adequate) assurances have been provided by Poland that will suffice to protect his fundamental and human rights should he be removed there;(ii) his condition would be worsened to an unacceptable level by the physical process of transfer; and (iii), he is a suicide risk if removed. It is common ground that, as matters presently stand, the appellant is unfit to plead.[3]We have received fresh evidence on a number of issues, including as to his medical position, the position of the Judicial Authority in Poland (“Judicial Authority” or “JA”) and the position presently adopted by the National Crime Agency (“NCA”) which brings the evidence up to date. In the light of the evidence before the District Judge and before this Court I would dismiss the appeal. I conclude that the Judge was entitled, on the evidence before him, to arrive at the conclusion that he did and I do not consider that the new evidence alters that conclusion. I also do not consider that the judgment of the CJEU in CK affects the analysis, though the judgment does clarify several significant points. B.

(i) The European Arrest Warrant

[4]The Appellant’s surrender is sought under a “mixed warrant”. He is accused of five offences of aggravated burglary:(i) 16th November 2000: The appellant together with four accomplices broke into a residential property. They tied up the female occupier with insulating tape and electric cables and then stole electronic equipment, cash and her car. They made threats to kill her. Her stolen credit card was used to withdraw cash.(ii) 1st January 2001: The appellant again with four accomplices broke into a residential property and assaulted the occupant causing him a dislocated shoulder, “detachment” of the leg and injury to the face and chest. He also tied up three others in the house. He stole cash and a gun.(iii) 16th January 2001: The appellant this time with two accomplices broke into a residential property, tied up the female occupier with electric cables and then stole cash, wallets, watches, a writing set, a hearing aid and jewellery.(iv) 14th February 2001: The appellant on this occasion with six others threatened an employee of a jewellery booth with an imitation firearm until she gave them cash and jewellery.(v) 23rd March 2003: The appellant with six others attempted to burgle a bank.[5]The maximum sentence for each offence is 12 years imprisonment, save for the last offence where the maximum sentence is 10 years imprisonment. The District Court in Bydgoszcz ordered the preliminary arrest of the appellant on 27 July 2009 (Box B). Box D states that the appellant was “not heard or informed of the contents of the charges filed against him. He does not reside at the address available…”.[6]The appellant has been convicted of one offence. He committed a robbery with violence where the total loss to the victim was 102,729.91 Euros. On 21st November 2004, the District Court in Slubice imposed a three-year custodial sentence. He has 1 year, 10 months and 22 days left to serve (Box C). Box D states that he was not present at the trial: He was not summonsed but was informed of the place, date and time of trial. It adds that the Appellant “knew of the judgment against him and of the custodial sentence imposed on him; he did not return to the penal establishment to which was assigned after the prison leave granted to him during the serving of the said custodial sentence”.[7]The Judge below concluded that the appellant was a fugitive from justice on the conviction warrant, but not the accusation warrant. There is no challenge to that finding.[8]On 2nd June 2016 the EAW was certified by the NCA. The Judge rejected all the challenges raised against extradition. These concerned sections 14 (passage of time) and 25 (oppression due to ill-health) of the Extradition Act 2003 (“EA 2003”). Permission to appeal was refused on paper. On 27th June 2017, May J granted permission to appeal at an oral permission hearing but on the sole ground under section 25 EA 2003.[9]During the process of preparation for the appeal the issues have narrowed. The Court was, in this regard, greatly assisted by both the quality of the written arguments and the focused and sensible way in which the arguments were advanced orally. The issues in their final form can be summarised as follows: i) The Judge erred in failing to obtain “Dewani” type assurances from Poland: (a) that upon surrender if the appellant did not regain fitness to plead within a reasonable time he would be released so that, if he wished, he could return to this jurisdiction; and (b), that in any event he would not be exposed to a procedure akin to civil detention if found to be unfit to plead. ii) The Judge erred in concluding that the appellant could be subject to a physical removal process and did not apply the test in CK. The issue relating to the risk that the appellant would commit suicide was advanced as part of the argument about physical removal.[10]In order to determine this appeal it is necessary to set out the evidence in some detail. It is common ground that the analysis cannot avoid focusing upon the current medical position of the appellant, which in turn affects the approach that the NCA will adopt to the decision to remove the appellant. (ii) The psychiatric evidence in the Court below and the new psychiatric evidence[11]Before the Judge the appellant relied upon a series of psychiatric reports: (a) The report of Dr Kiran Rele, Consultant Psychiatrist dated 23rd September 2016; and (b), the report of Dr Andrew Forrester, Consultant Psychiatrist dated 17th November 2016.[12]The respondent has referred us to the following extracts from the report of Dr Kiran Rele:(i) Diagnosis – “moderate depression and anxiety” (para. 8.2-8.3), “Chronic Hallucinatory Psychosis”, “Mental and Behaviour disorder due to use of Alcohol” but not Schizophrenia(ii) Current medication – Olansapine (atypical antipsychotic, Sertaline (antidepressant) and Zoliclone.(iii) Current psychological treatment – none (para. 13).(iv) Suicide – “he has not acted on his fleeting suicidal thoughts”.(v) Prognosis – “currently guarded. He did have a good response initially to antipsychotic medication. However, his continued alcohol use has contributed to a delay in his recovery process. He has been prescribed a good therapeutic dose of antipsychotic medication… In my opinion, he might benefit from psychological treatments… Antipsychotic treatment, addressing his alcohol use and psycho social interventions will have a major role to play in supporting his recovery process. He will need help to reduce /stop his alcohol intake to help his recover. I do not feel that he required inpatient treatment at this time”.(vi) Effect of extradition – if he is extradited, “there is a possibility of him becoming more unwell in the form of increased anxiety related symptoms and an increase in his suicidal thoughts. At that time, he might benefit by adding an anxiolytic drug like Diazepam… he will benefit from an increased level of support in the community at that time”. He states that having read a paper on psychiatry in Poland there are medical facilities providing psychiatric care there. He also states that additional stress will have a serious impact on the appellant’s emotional well-being and mental health.(vii) Fitness to plead – the Appellant is unfit to plead and unfit to stand trial “at this moment in time” (para. 14 d). He states “in my opinion, this is likely to be temporary in nature. There is a likelihood that his mental health will improve with treatment. Once his mental health does improve, I believe that he might be fit to stand trial at a later stage”.(viii) Fitness to be transported – he is not fit to be transported but if he was, he would need a police escort and medical assistance as well as antixiolytic medication prior to travel.[13]The respondent has referred us to the following extracts from the report of Dr Forrester:(i) Background - the appellant has been in the UK since 2006. He has had one inpatient admission to a psychiatric hospital in Barnsley.(ii) Diagnosis – alcohol dependence syndrome and schizophrenia.(iii) Prognosis and suicide risk – “In my opinion, extradition would, in all probability, have a further deleterious effect on his mental health, causing a deterioration in the symptoms with which he presents. Although he does not currently present with suicidal intentions, he does report a longstanding history of suicidal ideas and he has said that he will kill himself if extradition is ordered. Given the fragility of his mental health, and his current symptom profile, I am of the opinion that these statements should be taken seriously. There is an elevated lifetime risk of suicide amongst people with major psychotic illnesses, including schizophrenia, and the symptoms with which he presents are currently such that they remove his ability to resist an impulse to commit suicide”.(iv) Fitness to plead – he is able to understand charges, to decide whether to plead guilty or not and to exercise the right to challenge jurors. However, “given the symptoms with which he currently presents, I am not of the opinion that he should be considered able to instruct his legal representatives, to follow the course of proceedings, or to give evidence in his defence. His symptoms could, however, improve with further treatment, and I therefore recommend that a review of his medication takes place in order to enable a period of more intensive treatment. Given his apparent vulnerability and the presence of mental disorder, it is likely that he would benefit from the introduction of an intermediary, although I am not of the opinion that this would currently enable him to become fit to plead (because he would still present with the symptoms he has described)”.(v) Fitness to travel – he is not fit to travel even with medical assistance. A period of more intensive treatment is required. Dr Forrester has written to his GP to make a recommendation to local services.[14]The appellant applied to admit new evidence from Dr Forrester in the form of a report dated 18th August 2017. He relies upon the following extracts from that report:(i) Change since last examination (17 November 2016) – The Appellant “continues to present a range of mental state abnormalities including hallucinations and probably delusions. His hallucinations appear to be more prominent…. There has been some deterioration in his underlying mental illness since I last interviewed him”.(ii) Diagnosis: schizophrenia (para. 7.2), moderate to severe depressive episode (para. 7.3) and “prominent anxiety” although this is a component of other disorders rather than a separate condition.(iii) Medication: The Appellant is currently receiving both anti-depressant and anti-psychotic medication which is “appropriate” although his medication regime should be reviewed as he may benefit from an increase in antipsychotic medication (para. 7.6).(iv) Alcohol: The Appellant told Dr Forrester that he stopped drinking approximately one month ago but that he is probably underreporting.(v) Therapy: both the Appellant and his wife stated that he has regular appointments with his GP and community psychiatrist as a part of his ongoing management although he struggles to leave his home due to social anxiety.(vi) Recommendation: The Appellant “requires ongoing intervention for the depressive and psychotic symptoms with which he presents (including management within primary care, and by community health team or equivalent, and treatment with, and monitoring of, antipsychotic and antidepressant medication)” (para. 7.10). He requires “robust treatment by his community health team, including a review of the medication that has been prescribed. He may also benefit from a period of admission to hospital in order to manage the risk with which he presents, and to optimize his treatment” .(vii) Timeframe for recovery - “difficult to give a precise timeframe…. He does, however, suffer from conditions that can be amendable to treatment”. Depression can be treated in a matter of months and both depression and psychotic symptoms can be managed with medication and regular support.(viii) Fitness to travel: He is currently unfit to travel as he is “actively mentally ill and at a high risk of suicide as a consequence of the symptoms he is experiencing” (para. 7.14). Precautions during the process of transfer (e.g. medical support) would not provide sufficient protection of his state of health or be able to prevent the risk of significant worsening of his mental health.(ix) Fitness to plead – the Appellant remains unfit to plead.(x) Effect of extradition – “IfJanusz Bobbe were to be extradited at the present time, I would consider a further deterioration in the symptoms of his particularly serious mental conditions likely. I am also of the view that it would result in a real risk of a significant deterioration in his state of health, although it is not possible to state that any such deterioration will necessarily be permanent. In all probability, it would lead to a worsening of the depressive and psychotic symptoms with which he presents, and an exacerbation of his already high suicide risk…”[15]Subsequently an updating letter report dated 11th October 2017 was served by Dr Forrester. This was sought in the light of the arrangements being put into place for the removal of the appellant to Poland, and in particular the exchange between the authorities as to whether the removal should be via a commercial or a military flight (see paragraphs [25]- [27] below). In this letter Dr Forrester focused upon the risks posed to the appellant by the physical process of removal by a military flight. He stated:
“The available information indicates that the convoy service has chosen to surrender Mr Bobbe on a military flight, with a doctor present, for two reasons, as outlined below: 1. “Our convoy service is afraid that commercial airlines may refuse to transport the subject, for example because of children on board – to see a person with serious mental conditions may have a negative effect on them and on other passengers as well.” 2. “It may be also difficult, to take him on board in his state of health, (he may refuse to get on board or to put up resistance in a terminal during the handing over and in a presence of other passengers”
. It was also documented that Mr Bobbe “will receive essential medical care on board, and our officers ensure him security during the flight”. When I interviewed Mr Bobbe most recently, on 4th August 2017, it was clear that there had been a deterioration in his mental state since my previous assessment. I found him to be actively mentally ill and at high risk of suicide, as a consequence of the symptoms he experienced. Given the nature and degree of the symptoms with which he presented, I took the view that he should be considered unfit to travel. I also recommended that he required robust treatment by his community mental health team, and thought that he could also benefit from a period of admission to hospital in order to optimise his treatment. If extradition is upheld in this case, and it is ordered that Mr Bobbe must fly, I would remain very concerned about a likely further deterioration in his mental health, and a heightening of his already high suicide risk. In such circumstances, it is likely that he will be in a very tense and anxious state (not least because of the social anxiety with which he has presented, as a consequence of which he has often struggled to leave his home). In such circumstances, he will, in my view, require psychological support during the process of transfer, assessment of his suicide risk before, during and after transit, and may also benefit from the use of sedative medication during the flight itself. In my view, these needs go beyond the “essential medical care” that has been specified, and it is necessary to seek clinical assurances that they can be met in order to safely manage his high risk of suicide.” (iii) The evidence provided by the Judicial Authority in Poland[16]The Judicial Authority has responded to a series of Requests for Further Information (“RFFIs”) from the Crown Prosecution Service (“CPS”) transmitted via the NCA. These can be summarised as follows.

(a) RFFI response 1 (27th July 2016)

[17]This relates to the conviction element of the EAW. It provides the following chronology:(i) 19.06.2006 – appellant requested that he be granted prison leave.(ii) 10.10.2006 – granted prison leave for 6 months, i.e. until 10 April 2007.(iii) 26.03.2007 – appellant granted a further 6 months prison leave, i.e. until 26 October 2007. He was warned that at the end of the period, he must surrender himself to prison.(iv) 19.12.2007 – a “warrant notice” was issued “in vain”.

(b) RFFI response 2 (9th August 2016)

[18]This relates to the accusation element of the EAW. The following chronology is provided:(i) The appellant was never arrested or questioned.(ii) March 2007 – complaint was made.(iii) 24.12.2007 – the decision to prosecute was taken.(iv) The appellant was not staying at his address and his whereabouts were unknown.(v) 20.03.2008 – a domestic warrant was issued. The police checked his address and Polish population register databases and database of convicts.(vi) 11.02.2010 – checks were made on the Schengen system.(vii) 2015 – Information was received that the appellant was in the UK.

(c) RFFI response 3 (21st October 2016)

[19]A request for information was sent by the NCA to the JA on 3rd October which summarised the diagnosis of Dr Rele (non-organic psychotic disorder in addition to a mental and behavioural disorder due to alcohol consumption) and which set out the medication that the appellant was prescribed. In the light of that information a series of questions were posed about the treatment available in Poland to the appellant:
“Please could you could assist by answering the following questions: 1. What psychiatric treatment is available in Polish prison for Mr Bobbe who suffers from this psychotic illness? 2. What therapeutic services are available? 3. Would Mr Bobbe’s current medication programme (or equivalent medication) be possible in a Polish prison? […] 4. Is there a provision in Polish law or any other provision, which ensures that if Mr Bobbe cannot be treated for his psychiatric condition in prison, he can be moved to a hospital for more intensive treatment? […] 5. Is there any treatment available for alcoholics? 6. In the United Kingdom, the criteria is that the accused will be unfit to plead if he is unable either: a. to comprehend the course of proceedings on the trial, so as to make a proper defence; b. to know that he might challenge any jurors to whom he may object; c. to comprehend the evidence; or d. to give proper instructions to his legal representatives. 7. What is the law in Poland in relation to fitness to plead? How is this assessed? Is there a court hearing for such an assessment? If found unfit, what is the procedure? Please give as much detail as possible. 8. If he is fit to plead, is it possible to employ an intermediary who would assist Mr Bobbe in communicating with the court? 9. If Dr Rele were to provide a care plan, would the Polish authorities give consideration to implementing it? How would this work? 10. When he was previously sentenced in Poland by the Regional Court in Bydgoszcz on 21 November 2005, were there any concerns regarding his mental health? If so, what happened?”
[20]The answers were in the following term:(i) “Outpatient and inpatient treatments in psychiatric hospital is possible within the Polish prison system. There is a therapeutic ward available for prisoners for those with metal disorders and alcohol addictions. Therapeutic programmes consist of rehabilitation, psychological guidance, psycho-correction, art therapy, psycho-educational classes developing social competence, cognitive and emotional efficiency, education and culture classes, sport classes as well as teaching and employment. Those with psychiatric illnesses will stay in the prison’s psychiatric wards”.(ii) All of the medication that the Appellant is taking (or substitute) is available in Polish prison.(iii) If a mental illness makes it “impossible to serve the penalty of deprivation of liberty, the court grants a prison leave till the obstacle’s cessation”.(iv) Treatment for alcohol misuse is available.(v) Where there are concerns regarding the prisoner’s “sanity” the court will appoint a lawyer.(vi) “The provided plan of treatment could be realised. The final decision on the manner of treatment would be taken by the doctor of psychiatry under the care of whom the patient would be”.(vii) In 2005 there were doubts as to the Appellant’s mental health. He was examined by two psychiatrists were found that he did not have a mental disorder; did not require treatment in a psychiatric ward but did require alcohol detox treatment. He took part in “proceedings’ activities and to serve the eventually adjudged penalty of deprivation of liberty”.

(d) RFFI response 4 (28th October 2016)

[21]This relates to the procedure applicable in Poland for determining a defendant’s mental health and its impact upon a trial. Where doubts exist as to a defendant’s ability to recognize the significance of the act said to constitute criminality etc and to participate in the proceedings expert psychiatric evidence is admitted and heard.

(e) RFFI response 5 (30th November 2016)

[22]This answer was in response to a request which sought an explanation of the process for finding a person unfit to plead because of a mental disorder. To assist the JA the CPS set out a summary of how the procedure worked in the UK. The JA explained that although “Polish criminal procedure knows no notion of the defendant's fitness to plead” there was nonetheless an analogous procedure when someone was found not to be able to participate in proceedings if mentally unwell. Where two psychiatrists agree that a defendant cannot participate in proceedings due to his mental condition the proceedings will be suspended until such a time as the defendant is able to participate or until the limitation period expires. If the defendant’s condition did not improve upon expiration of the limitation period the case against the defendant is discontinued. Limitation expires in the present case in 2023.

(f) RFFI response 6 (11th January 2017)

[23]On 16th December 2016 the NCA asked the following question:
“Please can you indicate whether you would be prepared to give an assurance (and for how long) in the following (draft) terms: "The Polish authorities guarantee that Mr Bobbe, once surrendered to Poland, will be assessed by medical professionals and will receive appropriate treatment for any mental health difficulties. Procedures exist under the Polish criminal code whereby the court will determine whether Mr Bobbe is fit to stand trial. Should Mr Bobbe be found to be unfit to stand trial and does not recover sufficiently to be able to stand trial within 18 months, he will be allowed to return to the United Kingdom."”
[24]This response can be summarised as follows:(i) The Appellant will be given specialist psychiatric tests and appropriate treatment.(ii) “If the psychiatrists find him unable to participate in proceedings, further course of events will depend on whether it will be possible for the psychiatrists to express an opinion on his having been in a clear state of mind whilst perpetrating the offences…”(iii) If he is found to be insane at the time of the offences, proceedings will be discontinued pursuant to the procedure previously outlined.(iv) Where an accused is diagnosed as unable to participate in proceedings, expert psychiatrists typically specify a time after which the tests should be repeated, which is usually one year. “If this is the case with respect of Mr Janusz Bobbe, there will be nothing to hinder his return to the United Kingdom within 18 months, as you suggest in your letter”.(v) Irrespective of the above, the Respondent will agree to refrain from imposing the order for temporary detention (essentially grant bail) if a security of 20,000 PLN (equivalent to £3,961.44) is deposited with the court and if the RP undertakes to participate in further proceedings. This means he could leave Poland at any time and return to the UK. The actual text reads: “…we shall refrain from imposing temporary detention or any other preventive measure which would make it impossible for him to leave the republic of Poland on him. In the situation, he will be able to return to the United Kingdom any time he desires” (iv) Arrangements relating to the removal of the appellant[25]I have referred above to the updating letter report of Dr Forrester in relation to physical removal arrangements (cf paragraph [15]). I now address the up to date details of those arrangements. A question was posed by the Senior Prosecutor (CPS) in relation to applicable transfer arrangements on 20th September 2017. The NCA responded:
“We have passed the psychiatric evaluation to the IJA and requested that the subject be taken off the military flight in the event of a handover and placed on either a commercial flight or a land removal, both with the presence of a doctor to assess and care for the subject.”
[26]The Judicial Authority responded in a “Form M” as follows: “DEAR COLLEAGUES, WITH REFERENCE TO YOUR PREVIOUS MESSAGE, REGARDING YOUR SUGGESTION TO PLACING THE SUBJECT ON THE COMMERCIAL FLIGHT, PLEASE BE KINDLY INFORMED THAT OUR CONVOY SERVICE IN SPITE OF EVERYTHING CHOOSE TO SURRENDER THIS PERSON ON THE MILITARY FLIGHT (WITH A DOCTOR PRESENT), FOR TWO REASONS: 1. OUR CONVOY SERVICE IS AFRAID THAT COMMERCIAL AIRLAINS MAY REFUSE TO TRANSPORT THE SUBJECT, FOR EXAMPLE BECAUSE OF CHILDREN ON BOARD - TO SEE A PERSON WITH SERIOUS MENTAL CONDITIONS MAY HAVE A NEGATIVE EFFECT ON THEM AND ON OTHER PASSENGERS AS WELL. 2. IT MAY BE ALSO DIFFICULT, TO TAKE HIM ON BOARD IN HIS STATE OF HEALTH, (HE MAY REFUSE TO GET ON BOARD OR TO PUT UP RESISTANCE IN A TERMINAL DURING THE HANDINGOVER AND IN A PRESENCE OF OTHER PASSENGERS). TAKING INTO CONSIDERATION THE ABOVE REASONS, OUR CONVOY SERVICE KINDLY REQUESTED YOU TO HANDOVER THE A/M PERSON ON MILITARY FLIGHT. THEY ASSURE, THAT THIS PERSON WILL RECEIVE ESSENTIAL MEDICAL CARE ON BOARD, AND OUR OFFICERS ENSURE HIM SECURITY DURING THE FLIGHT, YOUR PROMPT REPLY WILL BE HIGLY APPRECIATED. BEST REGARDS. SIRENE POLAND”.[27]The position presently adopted by the NCA is set out in a detailed email dated 11th October 2017 from Ms Emma Jones, the Senior Officer for the NCA Fugitives Unit of the UK International Crime Bureau. She has responsibility for managing the regular (bi-weekly operation) to surrender extradition subjects to Poland with the Polish Police and Military Authorities. This is termed the ‘military flight’. In her email she provides details on the procedure to be implemented for the appellant to ensure that his medical conditions would be managed appropriately in conjunction with Poland. She sets out details of:(i) the military plane in question;(ii) the extent to which it is dedicated to removal of requested persons;(iii) the considerations (such as human rights) which govern the removal process;(iv) the extent to which “bespoke” measures will be put in place to address the medical and other needs of removed persons;(v) the specific assurances that would apply in the case of the appellant;(vi) the taking of responsibility for ensuring that proper arrangements are put in place; and (vi), the extent to which the appellants legal representative or others (described as extradition stakeholders) can attend to oversee the removal process. The substantive parts of the email are set out below: Following the receipt of an M form from SIRENE Poland on 25/09/2017, it was stated by Poland that there is a preference to extradite BOBBE Janusz DOB 01/06/1972 by way of the above mentioned military flight as oppose to via a commercial aircraft. This flight is a propeller powered casa aircraft with standard aircraft seating arrangements (2 seats, aisle, 2 seats). Dependant on various factors such as weather and flight path conditions, the journey usually takes between 4 and 5 hours. The plane lands in Warsaw, where subjects are held accordingly.The military flight is a specific operation in which only extradition prisoners are surrendered to Poland from a private airport in London. As this is a private facility and a dedicated operation attended by UK Police and Polish Police, there is minimal public attendance at the airport and no members of the public board the military plane or are permitted to be in the vicinity of this operation. The NCA facilitate this with UK Police, Airport Security and Poland. This would not be the case for a commercial removal in which there is no NCA presence and the subject would be escorted through public areas.As the operational lead officer, I hold the responsibility to ensure all surrenders are lawful, considerate of human rights and where required, implement reasonable, proportionate and necessary steps to ensure the safe and successful extradition of a prisoner. I have often dealt with individuals suffering from an array of medical conditions ranging from serious physical impairments to mental health issues including suicide attempts. In order to deal with individual requirements, I consider bespoke reasonable adjustments in all cases both proactively ahead of removal and dynamically during the operation.I can provide assurance that the following steps will be taken by the NCA in relation to BOBBE Janusz DOB 01/06/1972: * Timely electronic notification to the Polish authorities of all known medical conditions and warning markers to ensure full understanding, prior assessment and to allow effective decision making in terms of the escort required and associated medical provisions. * Timely notification to the arresting UK Police force of all known medical conditions and warning markers as above in order to inform and facilitate a safe transfer to the UK airport. * A request with a minimum of 14 days’ notice to Poland for a Doctor to attend on board the military flight. * All medical documentation held will be provided to the Polish Police escort and Doctor on arrival. * Upon arrival of the Doctor from Poland, I will request an initial assessment will be conducted to ascertain whether the subject is fit to fly. If he is deemed fit to fly, we have been assured that the doctor will, alongside Polish Police, escort him throughout the plane journey and initial arrival in Poland. Additionally, Poland have confirmed that the Doctor will provide any ongoing medical care where required for the duration of the flight. * As the subject is currently on court bail, he can liaise with his GP or known medical professionals to obtain any medication required before, during and/or after removal as appropriate. The NCA will advise the responsible UK Police force to recommend these steps are taken to the subject. * All required medication will be handed over separately by the responsible UK Police Force to the attending Doctor and be utilised on board where required. Finally, as the senior officer of this operation, I will ensure I personally manage this case and all of the above reasonable adjustments. I will ensure all NCA administrative and operational officers involved are fully briefed and aware of all requirements. All action take will be documented and justified.Apologies for the time delay with this, I was only notified yesterday afternoon of the requirement. If you need anything at all please get in touch. As discussed over the phone, I invite any lawyers/Judges/Extradition stakeholders to attend the military flight to observe the processes to aid in future queries.” C. Admission of the new evidence[28]There is no dispute between the parties as to the admissibility of the new evidence. I am of the clear view that the new evidence should be admitted. Neither party objects to the admission of the other parties’ new evidence. It is accepted that the situation is “moving” and in flux. This case turns upon the medical condition of the appellant at various points and stages in time which include the making of predictions about the future based upon the most up to date evidence. It would be an exercise in artificiality if the Court had refused to entertain and consider the new evidence. The new evidence was not “available” before the Judge. The Court needs to consider the evidence to determine whether the appellant’s fundamental rights would be in jeopardy in the event of (future) removal: See Szombathely City Court, Hungary v Fenyvesi [2009] EWHC 321 (Admin) at paragraphs [33] – [34]. This Court handed down a ruling on 17th September 2017 in FK v Stutgart State Prosecutor’s Office, Germany [2017] EWHC 2160 (Admin) in which there is to be found a detailed consideration of the inherent jurisdiction of the High Court to admit new evidence where this was necessary in the interests of justice: See at paragraphs [19] – [51] per Hickinbotton LJ. That case concerned a request by the High Court to the Judicial Authorities in Germany for further information. The new evidence in this case should be admitted in the interests of justice and to ensure that the appellant’s fundamental rights can be guaranteed as the process of extradition evolves. The probative value of any particular piece of evidence and the proper inferences to be drawn therefore are, of course, altogether different matters. D. Section 25 EA 2003: The “unjust and oppressive” test[29]The relevant test is well known. It derives from section 25 EA 2003 provides: “25 Physical or mental condition(1) This section applies if at any time in the extradition hearing it appears to the judge that the condition in subsection (2) is satisfied.(2) The condition is that the physical or mental condition of the person in respect of whom the Part 1 warrant is issued is such that it would be unjust or oppressive to extradite him.(3) The judge must— (a) Order the person’s discharge, or (b) Adjourn the extradition hearing until it appears to him that the condition in subsection (2) is no longer satisfied”.[30]There is no dispute but that the test must be read to be consistent with fundamental human rights, which in this case flow from the ECHR and the EU Charter on Fundamental Rights (“the Charter”).

E. The judgment below

[31]The position of the Judge can be shortly summarised. First, the appellant was unfit to plead according to the domestic law test (paragraph [12]). Second, the experts agreed that the Appellant’s condition was temporary not permanent, although their precise diagnoses were different (paragraph [13]). Third, Dr Rele had concluded that the Appellant could travel with a police escort and “increased drugs” to help him cope with anxiety; though Dr Forrester remained of the view that the Appellant was unfit to travel at all (paragraph [24]). Fourth, the appellant’s condition “can and will improve” (paragraph [42]). The appellant bore “a great deal” of personal responsibility for his condition. He was “resistant to engage with therapeutic help and stopping abusing alcohol”. The appellant’s condition persisted “due to his own behaviour in not accepting therapy and not abusing alcohol” (paragraphs [42] - [43]). Fifth, a delay in extradition would “reward [the Appellant] for elongating his illness” (paragraph [42]). Sixth, in view of the evidence before the Court as to the facilities available within the Polish prison estate the extradition would not be oppressive or unjust. Seventh, there was no requirement to adjourn proceedings or order discharge. Extradition was therefore ordered.[32]There is one particular matter that I should elaborate upon. It is recorded in the judgment that the Judge adjourned at one point to ascertain whether assurances could be obtained for Poland. However, having reflected upon the matter the Judge changed his mind. The reason for this was set out in paragraph [43], context is provided in paragraph [42]:
“42. I am satisfied on the evidence that the RP’s condition can and will improve. It is not permanent and incurable (unlike in Arshad or Ashley’s cases; see [2014] EWHC 2515 (Admin) and [2014] EWHC 3505 (Admin) respectively). It is of some years’ duration, but the RP bears a great deal of responsibility for that as he has been resistant to engage with therapeutic help and stopping abusing alcohol long enough to gain the benefit of appropriate treatment. He has not done that in the community here. It would appear to reward him for elongating his illness not to extradite him. If extradited, he will be surrendered into a sophisticated and humane prison environment where, I have found, he will have not only the medication available to him here but also be able to benefit from therapy. That he may not want to do so, thus ensuring that his condition persists, is not a good reason to refuse extradition when the reason put forward is that due to his mental health it would be unjust or oppressive to extradite him. 43. The authorities relied on concerning assurances as to the length of time that the RJA should have to decide on whether he is fit to be tried are not strictly relevant here, I have decided. If extradited, he will go to a prison where his condition can be monitored and, in all likelihood given he extended period when he will be without alcohol, treated successfully in accordance to the law of the RJA as set out paras 26-29 supra. I adjourned to ascertain whether an assurance could be given as to how long the RJA would allow to see if the RP recovered to consider whether his extradition ought to be barred. I did so, as Mr Grandison raise the absence of one to be important to my decision. At the time of hearing the evidence, my concern was that if I didn’t adjourn to see if one could be obtained, that in itself would lead to an appeal. However, having now had the chance to consider my mind. I have done so for the following reasons. In contrast with the cases cited, here I have evidence that the RP’s condition has persisted due to his own behaviour in not accepting therapy and not abusing alcohol. The cases cited showed a variety of mental health conditions, some permanent and some now, but in none of those cases could it be said that the RP was responsible for the duration of the condition. Here, I have found the RP’s behaviour has at least contributed to the continuation of his ill health and the lack of amelioration in it. To require the RJA to provide a similar “time” assurance here would positively encourage the RP to resist the very treatment in Poland that would mean he could avoid prosecution for very serious offences. Accordingly, the existence or otherwise of an assurance here is not germane to my consideration concerning the submission that it would be unjust or oppressive to extradite him due to his condition. I am impressed by the level of care provided to those in Polish custodial institutions who have mental health conditions and, indeed, the availability of bail with a security should the situation arise in the future through a lack of improvement in the RP’s health together with the “18 month” assurance in RFFI 6.”
F.

(i) The appellant’s case

[33]I turn now to the first substantive issue. Mr Summers QC argued that on the evidence the appellant was seriously mentally ill and in the grip of a psychosis. It is common ground that he is unfit to plead. There is accordingly no issue to be determined by the Polish courts. Exposure to trial would be unjust and the act of removal oppressive. Such a conclusion arises irrespective of any personal culpability on the part of the appellant for this state of affairs. Even though the appellant’s condition is temporary in the absence of Dewani type undertakings there is no proper guarantee that can satisfy this Court that the appellant’s human rights will be respected. Any undertaking would have to comprise two components to render extradition lawful: (a) that upon surrender if the appellant did not regain fitness to plead within a reasonable time he would be released so that, if he wished, he could return to this jurisdiction; and (b), that in any event he would not be exposed to a procedure akin to civil detention if found to be unfit to plead. Mr Summers QC cites R v Warren v Secretary of State for the Home Department [2013] EWHC 1177 (Admin) (“Warren”), and, Government of the Republic of South Africa v Dewani No (2) [2014] EWHC 153 (Admin) (“Dewani No 2”) as authority for the proposition that in cases of unfitness to plead strong assurances are required before extradition can be lawful. In both those cases the Court required the requesting state to give undertakings before extradition would be ordered.[34]Mr Summers QC argues that assurances (a) and (b) focus upon discrete legal points. The first (reasonable time) is not contingent upon what would happen to the appellant upon expiry of that reasonable period of time (for instance civil detention). It focuses upon the need to ensure that the decision-making process is not unduly delayed. The second assurance (b) focuses upon the possibility that the appellant will be sent into civil detention which (if it occurred) would be outwith the lawful ambit of extradition which is concerned with criminal, but not civil, dispositions.[35]It is argued that the Judge below wrongly declined to obtain assurances (a) and (b) and did so for irrelevant considerations relating to the personal culpability of the appellant (see paragraphs [31] and [32] above). (ii) Analysis / conclusion: reasonable time[36]I would reject this ground of challenge. This is for the following reasons.[37]First, case law indicates that the amount of time that a requested person may spend in the requesting state awaiting trial may be relevant to whether the extradition is unjust and oppressive. It is part of the wide mix of factors which will form part of determining whether it is “just” to send a person to confront a process where unreasonable delays may arise. It is of course integral to Article 6 ECHR that a person is entitled to be tried within a reasonable period of time. Case law on assurances however makes clear that there is no inevitable legal obligation to obtain assurances in the case of requested persons who are (presently) unfit to plead. In Government of the Republic of South Africa v Dewani (No2) [2014] EWHC 153 (“Dewani No 2”) the Court, (the LCJ, Ouseley and Blake JJ) made clear that the test governing the seeking of assurances was fact sensitive and that it was only in certain circumstances that an assurance from a foreign government might be necessary:
“57. … the circumstances in each case must be specifically examined. In circumstances where a person who has no connection with the requesting state save for a brief visit, is currently unfit at the time of the extradition hearing, the prognosis is uncertain and there is a real possibility that he might never be fit, one of the circumstances that has to be taken into account in determining whether it would be unjust and oppressive to return the requested person, is whether an undertaking is offered to permit his return to the UK in the event it is found, after a reasonable time for further treatment in the requesting state, that he is likely to remain unfit.”
The issue of the reasonableness of the time elapsed, as this quotation makes clear, was in Dewani, linked to the related facts (a) that the appellant had no connection with South Africa (i.e. it was not his home) and (b) that he was unfit to plead at the time of extradition and there was a possibility that that situation might not change i.e. unfitness might be permanent. In Warren (ibid) the Court addressed the question of the time elapsing (cf paragraph [31]) because a memorandum had been provided by the District Attorney confirming that if the requested person was not tried within a few months he would be free to return to the United Kingdom. The Courts’ recitation of these facts was merely that; it was not an articulation of principle about what was/was not a reasonable time.[38]Second, a fact and context sensitive analysis includes (inter alia) forming a conclusion about the prospect of the appellant recovering within the time frame that stands as the outer limit of reasonableness. The facts of Dewani were very different to the present facts. Moreover, the Court did not in that case state what a reasonable period of time would be for a requested person to be tried within. In paragraph [60] the Court referred to the need for South Africa to provide an assurance that the requested person would be tried within “… a year (or other stated reasonable period)”. On the present facts the proper inference that the Judge was entitled to draw from the evidence was that the appellant would recover well within any period that might otherwise stand as the outer limit of reasonableness. It is accepted by Mr Summers QC that upon removal to Poland the appellant will proceed into custody to serve the outstanding sentence (on the conviction part of the EAW). This amounts to imprisonment for just short of 1 year and 11 months. It is not argued that on the facts of this case a “reasonable period” of shorter than the period of sentence can sensibly be taken as the outer limit of reasonableness. The experts are agreed that the appellant’s condition is temporary. The evidence indicates that with proper care and medication (in prison) the appellant could be treated effectively within a period of months. In my view the Judge was correct to so hold (at paragraphs [12] - [13] and [40] – [42]). In oral evidence given during the extradition hearing Dr Forrester expressed the opinion that there would be improvement with treatment over the course of 3-6 months and with a change in medication. Dr Forrester is also of the opinion that with an improvement in treatment and the appellant’s mental health in due course the appellant could be fit to stand trial. In his most recent report prepared for the purposes of this appeal Dr Forrester adheres to the view that the appellant’s position should improve. And although he is circumspect about timescale he yet considers that treatment would take a matter of “months”. The appellant’s condition is alcohol dependency syndrome and either schizophrenia (in the opinion of Dr Forrester) or psychosis (Dr Rele). These are conditions that are eminently treatable with anti-psychotic medicines (which are being prescribed to the appellant and which he continues to take), psycho-social intervention and assistance with stopping or reducing alcohol intake. The short point is that the treatment period is materially shorter than the sentence of custody that the appellant must serve on return and which is necessarily accepted as the benchmark against which, on the facts of the case, reasonableness must be measured.[39]Third, it is not contended that there is any systemic failure in the (judicial or prison) system adopted in Poland for the treatment of prisoners with conditions such as the appellant’s nor for assessing fitness to stand trial. On the evidence before the Court, and as the Judge held, Poland has all of the facilities necessary to both treat the appellant in custody and form a professional and effective assessment of his fitness to stand trial. There is no reason to believe that the treatment necessary to facilitate recovery will not be available in Poland.[40]Fourth, the above conclusions are based upon a realistic view of the evidence. In making any prospective evaluation there is an inherent element of uncertainty. But the evaluation is not based upon an ability to form a certain or absolute conclusion. It is based upon the realistic prospect of the requested person recovering within a reasonable time and the ability of a Court ex ante to make that assessment. In Dewani No 2 there are many references to the exercise being conducted being one based upon likelihood: the appellant advanced a test based upon the “realistic prospect that if extradited he could remain unfit” (paragraph [26]); the Government of South Africa advanced a test based upon whether “future unfitness is inevitable or highly likely” (paragraph [29(4)]); The Court referred to the “real possibility that [the requested person] might never be fit” (paragraph [57]) and the “realistic prospect of his being tried within a year (or other stated reasonable period)” (paragraph [60]). On the present facts in my judgment the position is quite clear and meets the test of realistic possibility. The conclusion of fact seems clear and is not marginal.[41]Fifth, given this conclusion there is no need for any sort of assurance to be sought from Poland.[42]Sixth (and in any event), the information provided by the Judicial Authority in Poland seeks expressly to allay any fears that the appellant’s case would not be dealt with in a reasonable time: See the evidence set out at paragraphs [22] – [24] above. This provides a backstop position. In my judgment this supports the conclusion I have arrived at. On 16th December 2016 the CPS sent a request for information which specifically addressed the question of assurances. The text is set out at paragraph [23] above. The CPS set 18 months as a reasonable time period. In response the Judicial Authority confirmed in the terms summarised in paragraph [24] above. These provide substantial comfort in relation to time frames, the right of the appellant to return to the UK, and bail. Mr Summers QC argued that these were not sufficient as “assurances” since they were intrinsically vague and not proffered by the Polish Court. However, Poland is subject to the ECHR, the Fundamental Charter, and the Framework Decision (which must itself be read subject to fundamental rights cf recitals (12) – (13) thereto) and as between the UK and Poland the principle of mutual trust applies. The Judicial Authority is acting on behalf of the Polish state and whilst it is correct that an independent court might, in principle, adopt a position different to that of the Judicial Authority, there is nothing in the information provided by the Judicial Authority which would warrant the conclusion that the Judicial Authority’s answers could not be relied upon or that a Court would provide any different answer. This is strong supplementary and supporting evidence to the effect that more formal assurances were not needed.[43]Finally, as to the particular cases of Dewani and Warren these concerned South Africa and the US respectively. These states are not parties to the treaties, conventions and EU Decisions which provide the juridical underpinning of the principle of mutual trust which govern relations between the states who are signatories thereto. I accept that this is not decisive, but it is one of the factors to be placed into the mix. In the present case there is a strong presumption Poland can be trusted to honour its obligations under the law and act in accordance with the information provided by it. (iii) Analysis / conclusion: Civil detention[44]This brings me to the issue of the second assurance. This is that extradition is unlawful absent an assurance that if the appellant does not recover he will not be sent into civil detention. I do not accept that such an assurance is needed.[45]First, it follows from my conclusion on the first assurance point that it is not realistic to infer that civil detention is likely. The risk is, put shortly, too remote. The Court is not concerned with purely theoretical risks. Mr Summers QC accepted that if the risk was entirely theoretical it should be discounted but he argued that the risk here was higher than that. I agree with this proposition but do not accept that a formulation of risk as “theoretical” correctly identifies the divide between a risk which is acceptable and one which is not acceptable. On Mr Summers’ analysis anything other than a theoretical risk triggers the need for an assurance. In my view the risk of civil detention must be materially higher; it must be likely to eventuate in the sense that it must be a realistic possibility.[46]Second, I have (in any event) significant doubts as to underlying juridical analysis behind the argument advanced by Mr Summers QC. All (civilised) criminal justice systems will incorporate mechanisms for dealing with defendants who suffer from mental illness and these invariably entail removing mentally incapacitated defendants from the criminal justice system and addressing their (otherwise) criminal acts and their culpability in some alternative (civil) process. Indeed, the need to have rules and procedures governing fitness to plead in the context of criminal proceedings is a requirement demanded by Article 6 ECHR. The existence of the possibility of the diversion of a requested person to a civil process does not mean that the purpose behind the extradition is still not squarely based upon the desire to punish and/or try a requested person. Nor does it imply an inevitable human rights violation.[47]I can, on the other hand, see that if a requested person is (prior to removal) incurably and irreparably unfit to be tried then to remove such a person to a jurisdiction where the inevitable disposition of the individual is into civil detention then the purpose behind the extradition may not have a criminal character to it. This is a jurisdictional issue: Extradition can be used to further criminal justice but once it is clear that extradition does not serve that end its justification as an instrument of criminal justice ends. It follows that this conclusion applies even if the requested person’s human rights are not violated because, for instance, he will receive excellent medical care and treatment in the requesting state.[48]There is little case law on the point. The appellant cites R v H [2003] UKHL 1 where the House of Lords, in the context of domestic criminal law on fitness to plead (i.e. not extradition), confirmed that a hearing under section 4A Criminal Procedure (Insanity) Act 1964 (as substituted by Criminal Procedure (Insanity and Unfitness to Plead) Act 1991) was not criminal in nature for Article 6 purposes, and hence criminal law safeguards did not apply. Mr Summers QC was not able to cite any authority from the jurisprudence of the CJEU which addressed his more specific argument and, generally, this is not an issue that has troubled the Luxembourg court. He accepted that civil detention was not something directly touched upon in the jurisprudence concerning the Framework Decision though he pointed out that the instrument was replete with references to “criminal offences”, “criminal prosecution”, “criminal sentence”, “criminal law”, “criminal proceedings”, “criminal matters”, “criminal court”, “criminal act”, “criminal decision”, “criminal procedure”, “double criminality”, “criminal investigation”, “criminal liability”, “criminal judgment”, “criminal penalty”, “criminal sanction”, “criminal field”, “criminal cooperation” etc.[49]He also pointed out that the EU had separate laws governing judicial cooperation in civil proceedings which do not include transfer of persons For example, Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 is intended to simplify and expedite the transmission between Member States of judicial and extrajudicial documents for service purposes and thus to increase the efficiency and speed of judicial procedures. In order to simplify and accelerate cooperation between courts in the various Member States in the taking of evidence in civil or commercial matters, the Council adopted Regulation (EC) No 1206/2001. To improve, simplify and expedite judicial cooperation between the Member States and to promote access to justice for citizens engaging in cross-border disputes, a European Judicial Network in civil and commercial matters was established by Council Decision 2001/470/EC of 28 May 2001. The network is composed of contact points designated by the MemberStates, the central authorities provided for in some EU instruments, liaison magistrates, and any other authority with responsibilities for judicial cooperation between state actors (courts, central authorities). Decision 2001/470/EC was amended by Decision 568/2009/EC of 18 June 2009 aimed at enhancing and reinforcing the role of the European Judicial Network in civil and commercial matters. . Further he referred to Director of the SFO v O’Brien [2014] AC 1246 where the Supreme Court held that extradition was concerned only with criminal process (at paragraph [11] – [34]) and the Court’s analysis included a detailed review of the Framework Decision (at paragraphs [19] – [26]).[50]In my view, as observed above, the answer lies in an analysis of purpose. In Dewani No 2 the Court (citing In Re Ismail [1998] UKHL 32) emphasised that the scope of extradition proceedings was to be governed by the purpose behind the request: see paragraphs [36] and [37]. If a request was essentially for the purpose of punishing (conviction EAW) or trying (accusation EAW) a requested person, then the purpose was criminal and the extradition regime applied. The mere fact that the requested person could theoretically fall to be subject to some form of civil or quasi-civil detention on mental health grounds did not serve to remove the removal from the realms of criminal law (ibid paragraph [37]). Provided there is a “real prospect” that unfitness is not permanent, extradition remains for a lawful criminal, purpose (ibid paragraph [37]).[51]Third, so far as the judgment below is concerned the Judge took into consideration a variety of considerations, including his conclusions on the evidence:(i) that the appellant would recover in time;(ii) that on return he would go to prison (for just under two years); and (iii), that given that he would be treated in prison and “in all likelihood” he would be treated successfully i.e. during the period of his custody. Mr Summers QC challenged the Judge’s reasoning upon the basis that he had been influenced by his conclusion that the appellant bore a “great deal of responsibility” for his condition because he has resisted therapeutic help. It was argued that the personal culpability of a requested person was an irrelevant consideration to take into consideration. When one unpacks the reasoning of the Judge in paragraphs [42] and [43], set out above (at paragraph [32] above), it is clear that the Judge adopted reasoning which justified his ultimate decision. The issue of personal culpability did not, in reality, go to the heart of the issue and he would have decided the point in the same way irrespective of his views on the culpability of the appellant. In any event if a court is, on the evidence, able to conclude that a requested person, after removal, is likely to refuse to engage medically or therapeutically with the Polish authorities with a view (say) to prolonging his condition in order to maximise his chances of being exposed to civil detention and thereby to place himself in a better position to argue for his release, then this is something which a Court could in my view take into account when considering whether extradition was unjust and/or oppressive. It could for instance impact upon the question of reasonable time (see above) However, this observation does not in this case bear upon my conclusion on the lack of need for the second assurance.[52]I conclude that the Judge did not err in his analysis of the need for an assurance of either the (a) or (b) type. And nothing in the up to date evidence alters that conclusion. G.

(i) The appellant’s submissions

[53]The next issue concerns fitness to travel. It is argued that on the evidence the appellant is unfit to travel. An order to transfer him would exacerbate his condition markedly. It would reach the level where the act of transfer would amount to degrading and inhuman treatment. He would become a high suicide risk. This conclusion applies even if the conditions which would await the appellant upon arrival were perfectly adequate. This is not an issue of mutual respect since the act causing the inhuman and degrading treatment would not be that of the Polish State, but an act of the United Kingdom.[54]This submission is supported by the analysis of the CJEU in the recent judgment in Case C-578/16 PPU CK et ors v Republic of Slovenija (16th February 2017) (“CK”) which alters the law in that it is no longer necessary for a requested person to demonstrate that there is a systemic failing in the receiving state. There is no requirement on the appellant to show “systemic failures” in the facilities available in the receiving state to raise an argument concerning his fundamental rights. It is insufficient for an issuing authority to rely upon the principle of mutual trust and mutual confidence to rebut such an argument. An expelling state must consider the oppression arising from the act of transfer itself, and eliminate any doubts concerning the impact of transfer on the health of the defendant. The Judge failed to conduct this exercise.[55]From CK the following principles, it is argued, arise:(i) Rules of secondary EU law, including the Dublin III regulation, must be applied in a manner consistent with the fundamental rights guaranteed by the Charter (paragraph [59]):(ii) The CJEU had previously held that the transfer of asylum seekers under Dublin II would be incompatible with fundamental rights only where there were “systemic flaws in the asylum procedure and in the conditions for the reception of applicants” (paragraph [60]):(iii) An act of transfer should “only take place in conditions which preclude that transfer from resulting in a real risk of the person concerned suffering from inhuman or degrading treatment” (paragraph [65]):(iv) There is a strong presumption that medical care offered to member states will be adequate which flows from the principle of mutual confidence between Member States (paragraph [70]. There was no evidence of systemic flaws in the Croatian asylum procedure or the conditions of reception in Croatia (paragraph [71]). An assurance had been provided in any event that CK and HR would receive appropriate treatment:(v) However, the very act of transfer of an asylum seeker “whose state of health is particularly serious” may, in itself, result, for the person concerned, in a real risk of inhuman or degrading treatment (paragraph [73]) “irrespective of the quality of the reception and the care available in the Member State responsible for examining his application”:(vi) Where the transfer of an asylum seeker with a particularly serious mental or physical illness would result in a real and proven risk of a significant and permanent deterioration in his state of health, then the transfer itselfwould constitute inhuman and degrading treatment (paragraph [74]):(vii) In such circumstances, it is for the transferring authorities to “eliminate any serious doubts concerning the impact of the transfer on the state of health of the person concerned”. In particular in the case of a serious psychiatric illness, “it is not sufficient to consider only the consequences of physically transporting the person concerned from one Member State to another, but all the significant and permanent consequences that might arise from the transfer must be taken into consideration” (paragraph [76]):(viii) Where the precautions available are not sufficient to ensure that the act of transfer will not result in a real risk of a significant and permanent worsening of the state of the relevant person’s health, the transfer must be suspended for such a time as his state of health renders him unfit (paragraph [85]).[56]As to the evidence it is said that both experts agreed that the appellant was unfit to travel. The Judge wrongly interpreted the evidence of Dr Rele as indicating that the appellant “could safely travel with a police escort and increased drugs” (judgment paragraphs [24] and [39]). Dr Rele stated that “I do not feel that [the Appellant] is currently medically fit to be transported back to Poland at this time. However, if he were to be transported, he would need police escort as well as medical assistance. He might benefit from taking some anxiolytic medication prior to travel”. Dr Rele did not give live evidence. The Judge erred in construing his opinion as indicating that the appellant was fit to travel. But be that as it may the new report of Dr Forrester maintains that, even if a medical escort were to be provided “this would not be able to provide sufficient protection of his state of health, or be able to prevent the risk of significant worsening of his mental health”. (ii) Analysis / conclusion[57]I start with CK. I do not consider that this ruling alters the analysis of the Judge or the present position. The case concerned the position of a Syrian family, comprising a husband and wife and in due course an infant child, seeking refugee status under the Dublin III regime. They entered Europe via Croatia and made their way to Slovenia where they applied for asylum. This was refused upon the basis that their application for asylum should be made in Croatia, the first EU Member State they encountered upon arrival in the EU. The legality of the order that they be returned to Croatia was challenged in the Courts of Slovenia. It was argued that it was unlawful to return them to Croatia because the wife had experienced a high-risk pregnancy and had suffered post-natal psychiatric illness including depression and periodical suicidal tendencies. The poor state of her health was “mainly caused by uncertainty regarding her status and the resulting stress” (ibid paragraph [37]). This might in due course lead to aggressive behaviour on her part leading to the need for hospital treatment. Her treatment needs were best met in the reception facility in Slovenia and not in Croatia.[58]There are several points to make about CK of relevance to this case.[59]First, CK concerned an asylum seeker seeking to enforce rights under the Dublin III regime. The present case arises under the extradition regime. Under Dublin III there is an important public policy in the State having responsibility for assessing an asylum application being the first state that the asylum applicant encounters in the EU. This is a quite different purpose to that motivating the extradition regime which concerns the rights and obligation of judicial systems to administer justice. It may be invidious to compare and contrast the purposes underlying these two removal regimes. Nonetheless, the rationale behind the EAW extradition regime is a powerful one and arguably a more compelling public interest than that under Dublin III which, at base, is only about the identification of the state (all of whom are assumed to be competent to guarantee civil and human rights), from amongst a number of such Member States, which has the legal obligation to process an asylum application. Nonetheless, the locus classicus of the analysis of the Court in CK was the application of fundamental rights and these apply to extradition as much as to asylum. I therefore accept that the judgment is capable of providing relevant guidance to the extradition regime.[60]Second, CK makes clear that national authorities and their courts must apply a rigorous yet pragmatic and circumspect approach to the evaluation of evidence. It is not authority for the proposition that the authorities or the courts must accept without question or challenge the evidence of a requested person that his or her condition is so serious that any act of transfer to enable that person to face justice in a state where he or she has committed or allegedly committed a crime should suffice to prevent transfer. The ruling in CK is consistent with the approach adopted by the Judge below.[61]Third, it is evident (cf paragraph [74]) that the Court acknowledged that a transfer could, itself, amount to inhuman and degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights (which reflects Article 3 ECHR). For those fundamental rights to be violated there had to be:
“… the transfer of an asylum seeker with a particularly serious mental or physical illness [which] would result in a real and proven risk of a significant and permanent deterioration in his health”
. The word “would” may, however be contrasted with the formulation in paragraph [73] which identifies the situation where “transfer … may …. result in a real risk of inhuman or degrading treatment”). There may be a difference of emphasis between “may” in paragraph [73] and “would” in paragraph [74] (but that is not an issue that needs to be resolved on the facts of this case).[62]Fourth, the judgment provides guidance as to the burden and standard of proof. The initial burden is on the appellant to raise proper evidence. Then the burden switches to the State to rebut that evidence. The asylum seeker must (paragraph [75]) adduce evidence of an “objective character” which is capable of showing “…the particular seriousness of his mental health and the significant and irreversible consequences to which his transfer might lead”. If that burden is met it does not impose an obligation upon the authorities of a Member State to accept that evidence. The duty on the authority is then to “…assess the risk that such consequences could occur”. The authorities must “eliminate any serious doubts concerning the impact of the transfer” to the transferred person (ibid paragraph [76]). The assessment is not limited to transfer itself but to all the significant and “permanent” consequences that “might arise” (ibid).[63]Fifth, a Member State is entitled to remove a person even where transfer poses a risk to health provided “appropriate measures” are identified and taken (ibid paragraphs [77] and [78], citing Karim v Sweden CE: ECHR 2006:0704DEC002417105)1 at paragraph [2]) and Kochieva et ors v Sweden CE:ECHR:2013:0430DEC00752312 paragraph [35]). The appropriate measures will focus upon cooperation between the transferring and receiving states, the accompanying of the transferred person, the making available of proper medical care to prevent the “worsening” of that person’s health and remove the risk of violence by that person during and after transfer, and the ensuring that the transferred person receives adequate medical care upon arrival (ibid CK paragraphs [80] – [83]). An important starting point is the principle of mutual trust pursuant to which there is a “strong presumption” that another EU Member State will provide all necessary medical conditions (ibid paragraph [70]). The Court was influenced in its analysis by the fact that the applicant had not challenged the adequacy of the provision of medical care in Croatia (e.g. paragraph [71]).[64]Sixth, the Court was conscious that those opposing removal might exaggerate their condition or make statements to medical experts designed to generate the evidence needed to defeat the threatened removal. The Court referred to the Member State having to decide whether the evidence and the postulated risks were “particularly serious”, “serious”, “real”, “proven” and “substantial” (see e.g. paragraphs [55], [65], [74], [76], [84], [85], [90] and [92]). The authorities (and the courts) are bound to form their own considered judgment not only of the quality of the evidence before but also as to the risk that it has been exaggerated for forensic ends.[65]Seventh, if a Member State does transfer an asylum seeker to a third state in circumstances where the transfer itself is or might be causative, upon the basis of proper evidence, of a worsening or exacerbation of the transferee’s condition to a level which renders the transfer degrading and inhuman then responsibility for the violation of fundamental rights lies with the transferring state and not, directly or indirectly, with the transferee state. This explains why the analysis does not turn upon questions of mutual trust and respect between states (ibid paragraph [95]).[66]I now apply the law to this case.[67]The Respondent argues that the analysis is in fact straightforward. The NCA has made abundantly clear (see paragraph [27] above) that an assessment will be made of the appellant as at the point of removal. If he fails that assessment he will not be removed. In accordance with CK the NCA will “eliminate any serious doubts concerning the impact of the transfer on the state of health of the person concerned by taking the necessary precautions to ensure that the transfer takes place in conditions enabling appropriate and sufficient protection of that person’s state of health” (CK paragraph [36]). The NCA also accepts that if a requested person threatens suicide, under CK (paragraph [79]) they still may remove the appellant “… provided that concrete measures are taken to prevent those threats from being realised”. The Member State will organize the transfer is such a way that the appellant is accompanied during transportation by adequate medical staff (CK paragraph [81]). The NCA accepts and assumes responsibility for the transfer. There will be consultation with the appellant’s medical team to devise a plan in order for the appellant to travel safely to Poland. A doctor will undertake a psychiatric evaluation of the Appellant and his removal will be in the doctor’s presence in order to provide him with appropriate care. The NCA can be assumed to make such a plan which accords respect to the appellant’s rights under Article 3 ECHR. If the NCA decides that removal is not possible it may apply under section 35 EA 2003 to extend time for removal.[68]I can find no objection to the NCA’s analysis which accords in my view with the principles found in CK. The steps taken by the NCA adequately protect the appellant’s rights. In particular it is accepted that the assessment must be proximate in time to the actual removal and that it must suffice to eliminate serious risks.[69]In my view CK does not materially alter the law. It has always been the case that section 25 EA 2003 encompasses injustice and oppression caused by conditions in the requesting state, and also the transfer arrangements. Section 25 must be construed to be consistent with Article 23 of the Framework Decision: “4. The surrender may exceptionally be temporarily postponed for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the requested person's life or health. The execution of the European arrest warrant shall take place as soon as these grounds have ceased to exist. The executing judicial authority shall immediately inform the issuing judicial authority and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed”.[70]Previous authorities in this jurisdiction have also dealt with issues of fitness to travel. In Wolkowicz et ors v Poland [2013] EWHC 102 (Admin) (“Wolkowicz”)the Court accepted the Respondent Judicial Authority’s position that it was helpful to examine the measures in place in three different stages:(i) the position whilst in custody in the UK;(ii) the arrangements in place made by the Serious Organised Crime Agency (the NCA’s predecessor) for the requested person’s transfer; and (iii), the custodial institution in the requesting state (paragraph [10]). The Court reiterated the remarks of Collins J in Griffin v Westminster Magistrates’ Court and Tribunal de Grand Instance, France [2011] EWHC 2426 (Admin)at paragraph [52], that steps should ordinarily be taken in such cases to ensure that no suicide attempt is made in the course of extradition (paragraph [10ii]). When considering the requested person’s case in Wolkowicz, the Court held that his condition was being managed by the UK authorities (in custody) and that his condition could be adequately managed upon transfer to Poland, and also by the Polish authorities upon arrival there (when also held in custody): See paragraph [56].[71]For the above reasons this ground of appeal fails. H.

(i) Appellant’s case

[72]The final ground of appeal concerns the risk of suicide. The appellant argues that following CK and Criminal Proceedings against Aranyosi [2016] 3 WLR 807, extradition would be oppressive due to the Appellant being unfit to travel and being at risk of committing suicide. In oral argument the issue of the risk of suicide became part of the question of transfer. To this extent it is covered by the analysis above. I address the issue briefly in so far as it is argued that extradition should be refused because of the risk following transfer. (ii) The law[73]The issue of when and whether a substantial risk of suicide amounts to an extradition of a requested person being unjust or oppressive or in breach of Article 3 ECHR has been considered in many cases: e.g.: Jansons v Latvia [2009] EWHC 1845 (Admin); Rot v District Court of Lublin, Poland [2010] EWHC 1820 (Admin); Wrobel v Poland [2011] EWHC 374 (Admin); Savage v USA [2012] EWHC 3317 (Admin) and Griffin v Westminster Magistrates Court and Tribunal de Grand Instance, France [2011] EWHC 943 (Admin). In Turner v Government of the USA [2012] EWHC 2426 (Admin), Aikens LJ summarised the position at paragraph [28]: “(1) The court has to form an overall judgment on the facts of the particular case. (2) A high threshold has to be reached in order to satisfy the court that an Appellant's physical or mental condition is such that it would be unjust or oppressive to extradite him. (3) The court must assess the mental condition of the person threatened with extradition and determine if it is linked to a risk of a suicide attempt if the extradition order were to be made. There has to be a "substantial risk that [the appellant] will commit suicide". The question is whether, on the evidence the risk of the appellant succeeding in committing suicide, whatever steps are taken is sufficiently great to result in a finding of oppression. (4) The mental condition of the person must be such that it removes his capacity to resist the impulse to commit suicide, otherwise it will not be his mental condition but his own voluntary act which puts him at risk of dying and if that is the case there is no oppression in ordering extradition. (5) On the evidence, is the risk that the person will succeed in committing suicide, whatever steps are taken, sufficiently great to result in a finding of oppression? (6) Are there appropriate arrangements in place in the prison system of the country to which extradition is sought so that those authorities can cope properly with the person's mental condition and the risk of suicide? (7) There is a public interest in giving effect to treaty obligations and this is an important factor to have in mind”.[74]The approach was confirmed by the Court in Wolkowicz (ibid) at paragraphs [7] and [8]. The Court emphasised that the “key issue” was the availability of preventative measures in the requesting state to mitigate the suicide risk. Within the EU there is a presumption that the requesting state will possess and deploy such measures. The President (at paragraph [10(iii]) stated: “It will be ordinarily presumed that the receiving state within the European Union will discharge its responsibilities to prevent the Appellant committing suicide, in the absence of strong evidence to the contrary: see the authorities set out at paragraphs 3-7 of Krolick and others v Several Judicial Authorities of Poland [2012] EWHC 2357 and paragraphs 10-11 of Rot. In the absence of evidence to the necessary standard that calls into question the ability of the receiving state to discharge its responsibilities or a specific matter that gives cause for concern, it should not be necessary to require any assurances from requesting states within the European Union. It will therefore ordinarily be sufficient to rely on the presumption. It is therefore only in a very rare care that a requested person will be likely to establish that measures to prevent a substantial risk of suicide will not be effective”.[75]And even where there is a “significant risk of suicide” measures in place in the requesting state should remain the focus of the court’s enquiry. But this is not the sole focus. In the joined case of Rizleriene, the President concluded (paragraph [72]) that it was: “…clear that Rizleriene is suffering from a mental illness and that there is a significant risk of self-harm and suicide. The real issue, therefore, is whether the facilities for addressing the risk and dealing with it are adequate, both during the period of time in which arrangements are made for her extradition and subsequently after her arrival in Lithuania”. (emphasis added) (emphasis added) (iii) Analysis and conclusion[76]There is no challenge to the ability or willingness of the Polish authorities to provide appropriate medical and other care and treatment to obviate a suicide risk. Since I am of the conclusion that the risk of suicide during transfer has been properly addressed the only remaining risk arises upon and following the handing over of the appellant to the Polish authorities, and as to this there is no challenge.

I. Conclusion to appeal

[77]For the reasons set out above I would dismiss the appeal. I would also order that removal is not to occur before at least 21 days from the date of the order in this case.

LORD JUSTICE HICKINBOTTOM :

[78]I agree.

Cited in 6 later judgments