Niziol, R (on the application of) v City of Westminster

LORD JUSTICE LATHAM: There are two matters before us this morning. The first is a renewed application for judicial review of a decision of the Deputy Senior District Judge, dated 1 December 2006, and the second is an appeal against an order made by the same District Judge of 5 March ordering the extradition of the applicant to Poland. That appeal is brought under section 26 of the Extradition Act 2003.

As far as the first application is concerned, that is renewed to us after refusal by the single judge, Sir Michael Harrison. It is convenient to deal with that application first as it provides the background to the appeal and indeed essentially resolves a substantial part of the appeal itself.

The warrant, with which both these matters are concerned, is a warrant issued pursuant to the Framework Directive establishing European arrest warrants. A certificate in relation to it was granted on 8 June 2005; and the applicant was arrested on 13 July of that year. These proceedings are therefore protracted way beyond the period that has been envisaged for the execution of such warrants. That has, to a significant extent, been by reason of the health of the applicant. It was in relation to his health that the hearing, with which this application is concerned, related.

Section 25 of the Extradition Act 2003 provides that, in essence, if it would be unjust or oppressive to extradite a person by reason of his physical or mental condition, then the court should discharge him from the warrant. The hearing on 1 December 2006 was a hearing to determine the preliminary point as to whether or not that bar to extradition existed in the applicant's case.

The evidence before the court fell essentially into two parts: one related to his mental condition and the other to his physical condition. As far as his mental condition is concerned, there was material from four doctors in total who were essentially agreed that the applicant did in fact suffer from a depressive illness. There is no doubt that he had undergone treatment for that illness, including in-patient treatment in the Priory Hospital.

The district judge, in her judgment, made it plain that she accepted the evidence to the effect that he had a depressive illness, but concluded that it was not sufficiently severe to justify the conclusion that it would be unjust or oppressive to extradite him for that reason. There is essentially no challenge to that particular part of her decision.

The second aspect of the evidence before the district judge related to the applicant's physical condition. That was based on the evidence of a Dr Spencer who had provided a report and gave oral evidence. In the report, which was dated 7 June 2006, she stated that the applicant's blood pressure was labile, on occasions extremely high, but on occasions low. The trigger for high blood pressure certainly included stress. The stress of the extradition proceedings, she asserted, undoubtedly played a part in the problems that he faced. The report stated as follows:

In her oral evidence she essentially maintained the view that she had expressed in that report; and indeed both in examination-in-chief and in cross-examination she stated that there was a real risk that his high blood pressure could have a catastrophic effect. She expressed surprise that he had not had a haemorrhage prior to the time that she gave evidence; and as far as the risk was concerned she stated that she was not prepared to say what it was in percentage terms, but it was "quite high".

In her decision, which was a reasoned written decision, the district judge recorded the evidence of Dr Spencer. She clearly had concerns about Dr Spencer's evidence. She stated on page 4:

On behalf of the applicant, Mr Noble has forcefully submitted that the district judge really did not grapple with the full extent of the evidence of Dr Spencer, which he submits made it plain that the risk to the health, and indeed to the life of the applicant, was so grave that it required more than, as he submits, the cursory treatment given to it by the district judge.

Having read the whole of the judgment, it seems to me that that criticism is not well-founded. There is no doubt that the district judge came to the conclusion that the evidence of Dr Spencer was evidence which had to be approached with some caution, for the reason that she herself gave. It is, in those circumstances, readily understandable that she ultimately came to the conclusion that she did. As Sir Michael Harrison stated when he was refusing permission on paper:

The fact is that even if the evidence of Dr Spencer was to be approached without the caution expressed by the district judge, the judge would have been perfectly entitled nonetheless to have held that it would not be unjust or oppressive to return him to Poland. There simply is wholly insufficient evidence to justify the conclusion that the requirements of section 25 have been met. Accordingly, I would dismiss the renewed application for judicial review of that decision.

Turning then to the decision to extradite the applicant, the hearing on 1 December did not deal with any other aspect of the proceedings, apart from the section 25 issue. The remainder of the issues were to be dealt with at a subsequent hearing, which was estimated to take two days and was, on 4 December, fixed for 5 and 6 March. On or about seven days before the due date for the hearing, the solicitors for the applicant notified the court that they would be seeking an adjournment of the hearing in order to be able to put before the court some evidence. At the hearing on 5 March that application to adjourn was refused. The applicant himself was not present because it was said of his mental condition that he had in fact been readmitted to hospital for a time between the two hearings. The district judge had indicated that there was no need for him to be present.

The appeal to us today is essentially based upon two propositions: firstly, that the extradition order was infected by the decision on 1 December, which it is submitted was wrong and accordingly we should allow the appeal on that basis. What I have already said in relation to the judicial review application is sufficient to make it plain that in my view there is no substance in that argument. Accordingly that ground of appeal fails.

The other ground of appeal essentially is that the district judge was wrong to refuse an adjournment, firstly, because the applicant himself was entitled to be present and he was not, and secondly, because the applicant wished evidence to be heard in relation to the extradition application which could not be before the court on 5 March. By refusing an adjournment the district judge essentially deprived him of the opportunity of having a fair hearing of all relevant issues.

The problem, it seems to me, for the applicant is that against the background, that I have already described, of the delay which had occurred in these proceedings, it is wholly unsurprising that the district judge should have taken the view, which, as we understand it, she expressly stated, that enough was enough, the time had come for the matter to be resolved. There was no adequate reason given for the failure to obtain the evidence before the hearing of 5 March. If that material was relevant, and it had been thought to have been important for it to be available to the court, the applicant had since July 2005 to get that material ready and the witnesses available. The date of 5 and 6 March had been fixed on 4 December and there was ample time, in those circumstances, for any material to be before the court on the date fixed for the hearing.

In any event, the material, or at least its essence, is before us; and it could not have helped this applicant in any way whatsoever. None of the material relates to any possible bars to extradition set out in section 11 of the Extradition Act 2003. The only conceivable bar would be the bar set out in section 13, which were extraneous circumstances and considerations, but none of the material suggests in any way that the prosecution was for the purpose of punishing him or discriminating against him on the grounds of race, religion, nationality, gender, sexual orientation or political opinion. What is said on the appellant's behalf is essentially that this prosecution is brought in bad faith in order to cover up possible corruption within the Polish Government organisation dealing with the purchase of blood plasma, which was the business in which the applicant was engaged at the time of the alleged offences.

In my view, in those circumstances there is nothing that could possibly have justified the district judge in determining, despite the delay which had occurred, that it would be in the interests of justice for there to have been an adjournment.

A point is also taken that the charges set out in the certificate do not all amount to extradition offences for the purposes of section 63 of the Extradition Act 2002. It is conceded that most of them are framework offences, but it is said that Charge 4 does not fall into that category. Mr Hardy submits that it does not matter whether it does or does not. I agree. Even if it did not it sets out sufficient to indicate that the facts are such as would justify the bringing of a charge under English domestic law. In my judgment there is no substance in any argument to the effect that the certificate was defective in any such respect.

The final argument is that the whole process of the European arrest warrant procedure, as devised in the framework decision, which has resulted in the passing of the relevant part of the Extradition Act 2003, is, in effect, incompatible with the provisions of the European Convention on Human Rights. The only relevant article, to which we have been referred, is Article 6, but the fact is that extradition proceedings simply do not engage the provisions of Article 6. Article 6 will apply to any criminal proceedings which this applicant faces when he is returned to Poland.

In those circumstances it does not seem to me that it is necessary for us to deal any further with that issue raised, as it has been, in any event, in a way which does not comply with the requirement that appropriate notification should have been given to the relevant Department of State to enable the question of incompatibility to be properly pursued and resolved by this court.

For those reasons I would also dismiss this appeal.

MRS JUSTICE RAFFERTY: I agree.

MR HARDY: My Lord, may I mention two matters: first with--

LORD JUSTICE LATHAM: Probably to correct me.

MR HARDY: Certainly not, my Lord, merely to suggest that your Lordship may consider a minor amendment to your Lordship's judgment. So far as charge 4 is concerned, from the perspective of a United Kingdom lawyer those activities could amount to fraud and/or swindling, as described in the framework list, but the issue in judicial authority expressly included those facts in the part of the European arrest warrant which is given over to non-framework list offences. For that reason, in our submissions to this court, we were neutral as to whether it was a framework list or not. Whether that is of any consequence--

LORD JUSTICE LATHAM: I will look at the wording in my judgment to make sure it covers--

MR HARDY: For your Lordship's note it is page 9 of the European arrest warrant itself and it is box E2.

The second matter is an application for costs. In order that my Lord and my lady can make some use of the respondent's authorities, could I ask your Lordship to look at tab 1 thereof and turn to using the pagination in the top right-hand corner at page 110 of 420? That sets out section 60. The relevant subsections are subsections (1)(b) and (3). I am attended by my instructing solicitor's representative. On a hasty calculation we estimate the total quantum of costs incurred in this matter is £3,000 plus VAT. We make application for that sum of £3,525. I mention that by virtue of the provision in subsection (4).

If your Lordship makes an order can I invite your Lordship to direct that it is the Director of Public Prosecutions to whom the costs should be paid?

LORD JUSTICE LATHAM: Have you given any indication before this morning?

MR HARDY: Not in terms of quantum. We put a veiled observation in our skeleton argument, in particular, about the Article 6 argument, ie the compatibility argument, but we have not in fact notified my learned friend. The alternative would be for your Lordship to say that the order is made in principle, but subject to taxation.

LORD JUSTICE LATHAM: I am not quite sure whether we can, can we? An order for costs must specify their amount.

MR HARDY: What your Lordship would do would be to delay the making of the order.

LORD JUSTICE LATHAM: We would adjourn it for taxation. We would, yes. Yes, Mr Noble?

MR NOBLE: As I understand what your Lordship is proposing is that the matter should be adjourned so that the costs can be assessed.

LORD JUSTICE LATHAM: I am not suggesting that. You are entitled the make submissions about it. You can either accept £3,000.

MR NOBLE: We would ask that they be assessed.

LORD JUSTICE LATHAM: We would ask that they be assessed.

MR NOBLE: Either to be agreed or to be assessed.

LORD JUSTICE LATHAM: What we shall do then is to make an order for costs in principle pursuant to section 60, but we will adjourn the making of the order itself for the costs to be assessed, if not agreed, and the order will ultimately be that figure.

MR NOBLE: Can I ask formally for leave to appeal?

LORD JUSTICE LATHAM: Refused.

MR HARDY: My learned friend needs a certificate.

LORD JUSTICE LATHAM: If you want to appeal, Mr Noble, you will have to draft a certificate identifying the question. What we will do is deal with that administratively.

MR HARDY: Would your Lordship allow 48 hours from the service of any written application for a response, if a response is thought appropriate?

LORD JUSTICE LATHAM: Yes.

MR NOBLE: Your Lord, my learned juniour is saying in respect of judicial review we can ask for leave to appeal.

LORD JUSTICE LATHAM: Absolutely. No, we have refused the application for judicial review. That is the end of the judicial review. You need a certificate as far as the other aspect is concerned. The only other question which the associate has raised is the question of whether or not the costs order should be attached to the judicial review application refusal or the appeal. My suggestion is that the costs order be attached to the appeal, but that those costs are to include the costs in relation to the judicial review application.

MR HARDY: Would your Lordship forgive me?

LORD JUSTICE LATHAM: I am going to do timing. Do you want a certificate?

MR NOBLE: I do not oppose the order in respect of costs.

LORD JUSTICE LATHAM: As far as the certificate is concerned, if you want to go further an application for a certificate should be submitted to this court by 4.30pm on Friday at the end of the week. The respondent is to have until the close of office on Wednesday of next week to respond. Is that alright?

MR HARDY: With respect, the statute provides the time within which an application for certification and leave must be made. It is section 32(5) on page 54. If your Lordship cares to look at it, it says that an application to the High Court for leave to appeal under the section must be made before the end of the permitted period, which is 14 days starting with two days.

LORD JUSTICE LATHAM: I can abridge that. But maybe Mr Noble ought to be allowed--

MR HARDY: The language of the statute, with great respect, is before the end of the permitted period. Far be it for me to suggest that your Lordship does not have powers which your Lordship thinks the court does.

LORD JUSTICE LATHAM: I am certainly not going to restrict Mr Noble, if that is what the statute says. He can have 14 days and you can have 48 hours from the service.

MR HARDY: I am grateful. One final minor technicality, it may seem, but my learned friend's junior is wrong because your Lordships refused leave to apply for judicial review, so there is no appellate avenue open.

LORD JUSTICE LATHAM: She immediately accepted that was correct. Thank you very much indeed.