DP, R (On the Application Of) v Leoben Regional Court, Austria

LORD JUSTICE MOSES: This is an application to reopen an extradition hearing pursuant to CPR 52.17. The matter has a long, slow history relating to the attempts of the Leoben Regional Court in Austria to have this appellant extradited. That was ordered by the City of Westminster Magistrates' Court on 10th October 2008. On 10th February 2009 the High Court heard an appeal against the order and upheld the order in DPNo. 2 v The Leoben Regional Court of Austria [2009] EWHC 383. The order became final on Friday 10th December 2009.

On 17th December 2009 written submissions were submitted to SOCA suggesting that extradition would not be compatible with the rights under Article 8 of the Convention. On 18th December 2009 SOCA formally refused those representations and a claim for judicial review was launched. Permission was refused on 4th May 2010 on the basis that the correct route was CPR 52.17. Application was then made and directions given in May 2010 by Laws LJ.

The application had been originally based on the basis of this appellant's wife's condition, but that failed and finally on 3rd November 2010 a report was obtained from German lawyers from a consultant forensic psychiatrist, Dr Galappathie. On 9th November 2010 the court heard the application for permission to reopen the appeal and in the light of being unable to dismiss Dr Galappathie's findings out of hand, ordered the permission to be adjourned to enable the respondent, the Requesting Court, to obtain its own reports. This has now been done and a report has been obtained by Dr Oyewole. The report from Dr Galappathie concluded that the appellant suffered from Asperger's syndrome and bi-polar affective disorder. It also concluded that he suffered from a moderate episode of depression resulting in cognitive decline so that his condition now resembles dementia. The doctor concluded that Mr DPwould be clearly unfit to plead and stand trial. Mr DP, I should add, is aged 45, having been born on 7th January 1966.

Dr Oyewole, who is a consultant psychiatrist approved under section 12(2) of the Mental Health Act 1983 like Dr Galappathie disagrees. He has not seen the full medical records but he rejects any view that he is unable to plead and stand trial and indeed as a result of various tests takes the view at the least that Mr DPhas been exaggerating and making out that he is much worse than he is, no doubt hoping to avoid, as he has so successfully avoided hitherto, extradition.

This medical dispute gives rise to the issue first of all as to whether it is right to reopen this appeal pursuant to CPR 52.17(1). The principles were explained in their application to extradition by Keene LJ in Ignaoua [2008] EWHC 2619 at paragraphs 22 and following. What is required is for the appellant to establish that it is necessary to reopen the appeal in order to avoid real injustice, that the circumstances are exceptional and make it appropriate to reopen the appeal and that there is no alternative effective remedy. This creates a conundrum. If one were to accept Dr Oyewole on his face value there can be no question of it being necessary to avoid real injustice to reopen the application. But that evidence is in dispute. If one accepts the law that it is not a matter for this court but a matter for the Requesting State, namely the Court in Austria, to determine the issue of fitness to plead, then again one can see that there is no need to reopen the extradition. But both those questions, the one of fact and the one of law, are in issue. The one of fact for the reasons I have given.

The issue of law arises because by section 25 of the Extradition Act the court is required to order a requested person's discharge if the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him - see section 25 of the Extradition Act 2003. The court in Lynch [2010] EWHC 109 (Admin) took the view that it was a matter for the courts of the Requesting State to consider fitness to plead unless the person requested would indisputably or inevitably be unfit to plead - see paragraph 22. That was based upon an earlier decision of this court in Warren v Secretary of State for the Home Department [2003] EWHC 1177 (Admin), which itself took that view, although the court in the earlier case was not concerned with section 25. It is not clear whether the issue was ever debated in Lynch. It seems to me having regard to the purpose and context of the framework directive that the decision of this court in L cannot be identified as being plainly wrong. Indeed, I take the view that it is correct. There is no suggestion whatever that Austria would be incapable or would not have in place a system for determining whether Dr Oyewole is right and that this is merely a requested person's attempt, last-ditch, to avoid extradition, or whether Dr Galappathie is correct.

That still leaves the question as to whether it is right to reopen the case. Mr Summers on behalf of the requested person makes the submission that unless I permit the applicant to reopen the case there can be no question of determining the legal issue that has arisen, he says, by the introduction of section 25, which creates an obligation on this court to determine the issue and not merely leave it to the Requesting State. I think there is force in that argument. The medical evidence has arisen late and if Dr Galappathie is right it is a radical and exceptional change of circumstances that has arisen since the extradition became final.

For those reasons, therefore, I shall permit the extradition to be reopened but I shall dismiss the application under section 25. I am not persuaded that it would be unjust or oppressive to order the extradition of this appellant by reason of his medical condition. There is plainly a dispute. Dr Oyewole, although he has not seen the medical records, has given powerful reasons for forming the view that the appellant is exaggerating his symptoms and in those circumstances the application is dismissed.

MR SUMMERS: My Lord, I am grateful for that. I am acutely aware that my Lord has approved Lynch in the course of my Lord's judgment.

LORD JUSTICE MOSES: So that it is just a question of whether this is a point meriting certification. Do you want to say anything about that?

MR WATKINS: My Lord.

LORD JUSTICE MOSES: I have no intention of giving permission but I am at the moment minded to certify the point.

MR WATKINS: My Lord, given the submissions that have already been made, I have nothing further to add.

LORD JUSTICE MOSES: I shall certify. So far as the point to be certified--

MR SUMMERS: My Lord, my attempt at drafting is at page 7 in bold at the top.

LORD JUSTICE MOSES: This is a very questioned begging way of putting the issue because the issue that the statute, section 25, requires to be determined is whether it would be oppressive and that, so the learning takes into account, is that the issue will be determined.

MR SUMMERS: My Lord, I am very happy to sit down with Mr Watkins in an attempt to draft an alternative.

LORD JUSTICE MOSES: Have another go with Mr Watkins. You can put both your rival determinations -- is there a time limit when this all has to be done?

MR SUMMERS: 14 days I have to apply for permission to the Supreme Court.

LORD JUSTICE MOSES: So you had better be certified before then. I am away next week.

MR SUMMERS: My Lord, 14 days runs from the date my Lord certifies the point. If my Lord is prepared to delay that.

LORD JUSTICE MOSES: Yes, I am. If you can let me have it the week after next, I will then reach a view. Thank you both very much.