Szubryt v District Court In Kielce, Poland

LORD JUSTICE RICHARDS: This is an appeal against a decision of District Judge Nicholas Evans, sitting at the City of Westminster Magistrates' Court on 30 December 2008, by which he ordered the appellant's extradition to Poland. Extradition was sought by the respondent judicial authority pursuant to a European arrest warrant for the purpose of serving an 18-month sentence of imprisonment imposed in 1997. It appears that the appellant left Poland and came to live in the United Kingdom in 1998. The District Judge found that he had become unlawfully at large when he failed to turn up to serve his prison sentence, the date for which was probably in 1999. The District Judge was satisfied that the appellant had deliberately fled Poland to avoid serving that sentence. A wanted notice was issued in relation to him in Poland in July 2001. A European arrest warrant was issued in December 2004. It was certified by the Serious Organised Crime Agency in June 2008. The appellant was arrested pursuant to it and brought before the Magistrates' Court on 5 September 2008. The case was adjourned, however, on that date and on two subsequent occasions because the appellant was awaiting trial at a Crown Court on a charge of assault, in respect of which he was subsequently found not guilty.

There was then a further hearing, on 9 December 2008, when an adjournment was granted in order that the appellant could obtain an expert psychiatric report in respect of his wife. At the next hearing, on 30 December, yet another adjournment was sought on the basis that there had been insufficient time to obtain an expert report. On that occasion, however, the District Judge refused an adjournment and proceeded to hear the case and to order extradition.

The appeal to this court is based on psychiatric evidence now obtained in respect of the appellant's wife. On the basis of that evidence it is contended first that it would be oppressive to extradite the appellant by reason of the passage of time since he became unlawfully at large, and secondly that his extradition would be incompatible with Article 8 of the European Convention on Human Rights. The Article 8 issue has been added recently by way of amendment. Mr Jesurum, appearing on behalf of the appellant, has put it at the forefront of his case, acknowledging that if he fails on that he is unlikely to succeed on the oppression issue.

Before considering how the arguments are put I will summarise the effect of the psychiatric evidence. The appellant relies on the evidence of Dr Adrian Cree, a consultant forensic psychiatrist, who has prepared a main report and two addendum reports.

In section 10 of his main report Dr Cree states that the appellant's wife, Mrs Szubryt, developed a severe depressive disorder in 2002, which has followed a relapsing remitting course for the last six years. The onset of the symptoms in 2002 was rapid and persistent and the impact on her family profound. She was unable to care for herself or her family and became increasingly dependent on the support of family members which have included her husband, her mother and her daughter and son, now respectively 18 and 14 years of age. Without the care and support of those people, and in particular of the appellant, Mrs Szubryt would almost certainly have been hospitalised. She had made a recovery by May 2008, but the depression returned despite her medication.

Dr Cree describes her as meeting the criteria for a diagnosis of "recurrent depressive disorder, current episodes severe without psychotic symptoms". He states that her depressive disorder is likely to recur in the future and the potential long-term outcome for her can be deteriorating physical health, stress, deterioration of her relationship with the appellant and her children and possible suicide. He expresses the opinion that if the appellant were to be extradited to Poland to serve his outstanding sentence the loss of him in his role as carer would have significant and potentially life-threatening implications for Mrs Szubryt and potentially harmful implications for the children. His loss for even a brief time is likely to result in a significant decline in Mrs Szubryt's mental health. The likely outcome of a worsening mental state and loss of a significant carer would be hospitalisation, and this would be detrimental to the children's education and continuing emotional development, particularly in the case of the 14-year old son.

In his first addendum report Dr Cree refers to the evidence of clear improvement in Mrs Szubryt's mental state from March 2007 through to May 2008, and to his view that her state had deteriorated again by the date when he assessed her in early March 2009. He considers it likely that the appellant's arrest and extradition procedures would have been a significant stressor acting as either a precipitant or exacerbant to Mrs Szubryt's current episode of depression.

On the question of suicide, Dr Cree observes that approximately four per cent of depressed individuals die by suicide, but the risk is greatest in males and in those who have needed psychiatric hospitalisation. He continues:

As to the impact on the children, Dr Cree states that in the absence of the appellant and in the context of a severe depressive episode when Mrs Szubryt would be unable to leave the house, cook or meet her own personal hygiene, and would be poorly compliant with medication, the burden of care would be placed on the children if she were to remain as an outpatient; whilst if she were to be hospitalised there would be disruption for the family unit and the potential for the children to go into temporary care, and this is likely to have a significant impact on their education and emotional development.

Dr Cree refers to the indication in the medical notes that Mrs Szubryt's mother played a significant role in caring for her during her last period of severe depression. He states that the presence of an alternative family member to take over the role of main carer would help diminish the impact on Mrs Szubryt and the children, but he raises question marks over the mother's relationship with Mrs Szubryt and her ability to provide care. In answering questions at the end of his main report he said that he could not opine on whether the arrangement for Mrs Szubryt's mother to care for her was currently viable.

We have received today a witness statement from Mrs Szubryt's mother, by the name of Mrs Zapala, who indicates that, whilst she has been in this country since Christmas 2008, she is going back to Poland at the end of July this year as she has an appointment for medical tests. She has no idea what the test results will be. She has a cardiac problem and a liver problem and has had a breast scan. She refers to having been infected with Hepatitis C, which has resulted in her liver being bad ever since. She says she does not know how much time left she has got to go. Her health is not allowing her to say that she can remain in this country to look after Mrs Szubryt and the children. She is willing to, but her health will not allow it.

A separate psychiatric report has been obtained by the Crown Prosecution Service on behalf of the judicial authority. It is from Dr Philip LA Joseph, a consultant forensic psychiatrist. Having interviewed Mrs Szubryt and, unlike Dr Cree, having done so without the presence of the appellant, he reaches conclusions significantly different from those of Dr Cree. First, as to Mrs Szubryt's mental state, he expresses the view that Dr Cree may have obtained a misleading impression by only interviewing her in the presence of her husband, and may have concluded that she was more severely depressed than is the case. Dr Joseph states:

He goes on to say that she benefited from community psychiatric support until May 2008 and there is no reason why she cannot be referred back to psychiatric services for continued support in the community, particularly if the appellant is extradited. Her mother might now be too ill to assist, but she has been supportive over the last six months. The daughter, who lives with her boyfriend but is studying at college and stays at home three days a week, could assist Mrs Szubryt in the house. Other agencies might be able to ensure the son's attendance at school, which is a matter of concern to the appellant himself. Although the appellant does cook for his wife, in Dr Joseph's view he is not supervising her medication adequately and there is no reason why she cannot take her medication herself.

In conclusion, while Dr Joseph accepts that Mrs Szubryt has suffered from significant symptoms of depression episodically since 2002, he notes that she has not required hospitalisation at any time during this period and she has not been assessed as presenting a significant risk of self-harm. He disagrees with Dr Cree's assertion that if the appellant were extradited it would have significant and potentially life threatening implications for Mrs Szubryt.

In his second addendum report responding to Dr Joseph, Dr Cree makes it clear that his opinion remains unchanged. He says that Dr Joseph has not addressed the true severity of Mrs Szubryt's past depression. Whilst it is correct that she has not been hospitalised, in Dr Cree's opinion that is because of the support of her family and principally of the appellant. As to her current mental state, Dr Cree adheres to the opinion that at the time of his assessment of her she had symptoms similar to those in the earlier episodes recorded in her notes and meeting the criteria for severe depression. Dr Cree says that he could find no formal mental state assessment of her in Dr Joseph's report. He further expresses the view that the appellant is filling the role of carer and his input is important in keeping Mrs Szubryt stable and out of hospital. For the daughter to become full-time carer would damage her academic studies and put an unfair burden on her. There is no evidence that she would be willing to take the role on. He expresses concern that the burden will fall on the 14-year old son.

Dr Joseph, for his part, has provided the court with a very recent supplementary report addressing the comments made by Dr Cree on his, Dr Joseph's, main report. It is unnecessary to go into the detail of that supplementary report. There is no change in the views expressed in Dr Joseph's main report.

All this, as it seems to me, is the kind of evidence that ought to have been adduced in the Magistrates' Court at the extradition hearing, rather than being placed before this court for the first time on an appeal. To the extent that it was necessary to resolve the matters in dispute between the experts, the District Judge could have heard the evidence and made the appropriate findings. It is entirely understandable that the District Judge decided that the proceedings had gone on long enough and that a further adjournment for the filing of psychiatric evidence should therefore be refused. However, I am concerned about the way in which the appellant has got around what seems to me to have been a reasonable decision of the District Judge to refuse a further adjournment by filing expert evidence months later in the course of this appeal.

Nevertheless, since the representation order in the appeal was extended for that purpose, and no objection is taken to the admission of Dr Cree's evidence, it would plainly be wrong to refuse to consider it now, or of course to refuse to consider the evidence of Dr Joseph in response.

We cannot, however, resolve the dispute between the experts since there has been no order for cross-examination and the hearing of such evidence plainly could not be accommodated within the party's time estimates for today's hearing. Fortunately a resolution of the matters in dispute does not seem to me to be necessary for the purpose of deciding the appeal. There is a fair amount of common ground between the experts. Where there are substantial differences, and there are important ones, I am prepared to consider the legal issues by reference to what Dr Cree says, that is adopting an assumption favourable to the appellant. In particular, I am prepared to proceed on the basis that if the appellant is extradited, and is therefore unable to fulfil the role of carer for Mrs Szubryt while serving his sentence in Poland, it is likely that this will result in a significant decline in her mental state, leading not just to the need for outpatient treatment but to hospitalisation.

Dr Cree states that there would be an increased risk of suicide, and I must proceed on that basis, but it seems to me that the risk would be a very low one even on his assessment, especially given the absence to date of any suicidal ideation and the absence of any family history of suicide. There is, moreover, nothing in the expert reports to indicate that the health services would be unable to manage any problems arising from a decline in Mrs Szubryt's condition.

As for the children, no doubt the absence of the appellant and a decline in their mother's mental state would place increased responsibility and strain upon them, but Dr Cree's concerns about the specific impact on the daughter and son do not, in reality, go very far. Again it is important to bear in mind the availability of assistance not just from the health services but also from the social and educational services. I can see nothing in either expert's reports to support the view that the impact on the children would reach a high level of severity, even in the event of a relapse in Mrs Szubryt's mental state, and whether that led to outpatient treatment or to hospitalisation.

It is against that background that I turn to consider the legal issues. The issue of oppression can be dealt with very briefly in the light of the stance realistically adopted by Mr Jesurum. By section 14 of the Extradition Act 2003 a person's extradition to a Category 1 territory is barred by the reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have become unlawfully at large.

In the light of his finding that the appellant had deliberately fled Poland to avoid serving his sentence, the District Judge held that any difficulties that may have befallen the appellant as a result of the passage of time were entirely of his own making.

The approach he adopted was in line with that set out in the speech of Lord Diplock in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 at 782, as recently reaffirmed by the House of Lords in Gomes v Government of the Republic of Trinidad and Tobago [2009] 1 WLR 1038. In essence, the general position is that an accused who has sought to escape justice, as this appellant was found to have done, is unable to rely upon either the risk of prejudice to his trial or a change of circumstances, brought about by the passing years, to defeat his extradition. However, there remains an exception referred to in terms of "most exceptional circumstances" in which, despite the accused's responsibility for the delay, a bar to extradition may be established under section 14.

Mr Jesurum accepts that the threshold thereby laid down, of most exceptional circumstances, is an even higher one than applies under Article 8 and that if, therefore, the appellant's case does not meet the Article 8 threshold he is not going to succeed under section 14 of the 2003 Act.

It is for that reason that I can move straight to the argument under Article 8, which is founded on exactly the same substantive points as the case under section 14. The question whether extradition would be compatible with Convention rights arises under section 21 of the 2003 Act. There was no argument under that section before the District Judge, but he prudently considered the matter and held that extradition would not be in breach of Article 8.

It is not in dispute that the appellant's extradition would interfere with his family life under Article 8, though it is important to bear in mind that the interference will be temporary while the appellant serves his sentence, rather than involving a permanent separation of family members as has been the case in a number of important authorities dealing with Article 8 in the immigration context.

The central issue is one of proportionality. Both counsel have cited a passage in the judgment of Dyson LJ in Jaso v Central Criminal Court (No 2) Madrid [2007] EWHC 2983 (Admin) at paragraph 57:

It is agreed that the effect on other family members, not just on the person to be extradited, is to be taken into account in considering Article 8. That was the approach laid down by the House of Lords in Beoku-Betts v Secretary of State for the Home Department [2008] 3 WLR 166 in the context of immigration appeals, and whilst its applicability has not been litigated in the extradition context Miss Mannion, on behalf of the judicial authority, concedes it for the purposes of this appeal. She does raise a question as to whether the approach translates across into issues of private life, but I think it is unnecessary to go into that. I am prepared to proceed for the purposes of this case on the assumption that one looks at the impact of extradition on the private and family life of the appellant's wife and children, as well as of the appellant himself.

Mr Jesurum submits on the basis of the expert evidence that the effect of the appellant's extradition on his wife's mental state, with the risk of hospitalisation and the increased risk of suicide, is such as to render this a striking and unusual case in which extradition would indeed be a disproportionate interference with Article 8 rights. He seeks to reinforce the point by reference to the effect on the children, particularly the younger child, which in his submission would amount to hardship well in excess of that ordinarily associated with the loss of a parent through incarceration.

I am wholly unpersuaded by those submissions. In my judgment the risks to Mrs Szubryt, and the possible adverse impact on the two children, are far from sufficient to render it disproportionate to extradite the appellant to Poland to serve the relatively short sentence of 18 months imprisonment. The major concern relates, of course, to Mrs Szubryt herself, but I do not think that the risk of a decline in her mental state, consequent upon the temporary loss of her husband as carer, brings the case near the threshold for success under Article 8, and the position of the children adds relatively little weight to the argument.

In my judgment the case under Article 8 fails and it follows, as Mr Jesurum has conceded, that the case under section 14 of the 2003 Act must also fail. In those circumstances, and for those reasons, I would dismiss the appeal.

MR JUSTICE MADDISON: I agree.

MR JESURUM: One application: my client is legally aided. I ask for detailed assessment.

LORD JUSTICE RICHARDS: You may certainly have detailed assessment. Is there any further matter that we need to deal with in the circumstances?

MISS MANNION: Not for my part.

MR JESURUM: My Lord, may we have bail as before? Mrs Szubryt is currently on bail with conditions.

LORD JUSTICE RICHARDS: That is bail set by the Magistrates' Court. Since we have done nothing beyond dismissing the appeal from the Magistrates' Court, is there anything further we need to say about it?

MISS MANNION: No, bail will continue as before.

LORD JUSTICE RICHARDS: Thank you.