Mazurkiewicz v Rzeszow Circuit Court, Poland

This judgment is in seven parts, namely:

This is an appeal against an order for extradition to Poland. The appellant contends that if the extradition goes ahead he will, or alternatively he is highly likely to, commit suicide. The appellant also contends that if extradited to Poland he will be subjected to forcible tattooing in Polish prisons.

Poland is a category 1 territory as defined in the Extradition Act 2003, to which I shall refer as “the 2003 Act”.

I shall refer to the European Convention for the Protection of Human Rights and Fundamental Freedoms as “ECHR”. Article 2 of ECHR provides that everyone’s right to life shall be protected by law. Article 3 of ECHR provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 8 of ECHR provides:

“Right to respect for private and family life

1.

Everyone has the right to respect for his private and family life, his home and his correspondence.

2.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Section 21 of the 2003 Act provides:

“(1)

If the judge is required to proceed under this section (by virtue of section 11 or 20) he must decide whether the person’s extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c. 42).

(2)

If the judge decides the question in subsection (1) in the negative he must order the person’s discharge.

(3)

If the judge decides that question in the affirmative he must order the person to be extradited to the category 1 territory in which the warrant was issued.”

Section 25 of the 2003 Act provides:

“(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.”

Having set out the relevant statutory provisions, I must now turn to the facts.

The appellant was born in Poland on 4^th September 1981 and so is now aged 29. In 2000, when the appellant was aged 19, he committed an offence of forgery. In 2001, when the appellant was aged about 20, he committed acts of harassment against his mother and his siblings. The appellant received a total sentence of 1 year 2 months imprisonment for these offences. He has so far served only part of that sentence, the remainder having been suspended.

In 2002 the appellant committed further offences, namely assault occasioning actual bodily harm and causing criminal damage to a motor vehicle. The appellant received a sentence of 18 months imprisonment for these offences. That sentence was suspended.

It appears from the appellant’s witness statement that, in addition to having suspended sentences, the appellant also served an immediate term of imprisonment for 12 months between 2004 and 2005.

The appellant came to the UK in 2005. According to his witness statement the appellant found work on construction sites, earning about £250 per week.

In the meantime the machinery of criminal justice in Poland was working. The Polish courts decided that the appellant should serve the sentence of imprisonment which had previously been suspended. On the 21^st March 2008 the Rzeszow Circuit Court in Poland issued a European Arrest Warrant in respect of the appellant.

In 2008 the appellant formed a relationship with Aleksandra Kulikowska, a young woman who was then aged 15. On 3^rd August 2009 the appellant and Aleksandra had a baby daughter, Michella.

In September 2009 the Serious Organised Crime Agency certified the European Arrest Warrant. Despite that certification, the appellant was not immediately arrested.

Unfortunately the appellant did not settle down to live a law abiding life in this country. In September 2009 he assaulted Aleksandra’s uncle. On 19^th October 2009 the appellant was sentenced to a community order in respect of that offence, requiring him to carry out 200 hours of unpaid work. He was also subjected to a curfew requirement for two months with electronic tagging. The appellant did not comply with the requirements of the community order. Accordingly, on the 24^th March 2010 the Bromley Magistrates’ Court, which had originally imposed the community order, substituted a sentence of 61 days imprisonment.

Whilst the appellant was serving his prison sentence in this jurisdiction, he was arrested pursuant to the European Arrest Warrant for the purposes of extradition. On 23^rd April 2010 the appellant’s prison sentence for the assault offence came to an end, but he remained in custody pending the outcome of extradition proceedings.

On 16^th June 2010 the appellant made a suicide attempt. The prison record of that incident reads as follows:

“Ms Jo Grimshaw at HMP Wandsworth

Entry by ST/N Cassia Lim. On centre with Hotel 3 (Grimshaw) when heard alarms on D-wing. Attended code 1 on D3 landing with Hotel 3. On arrival patient was conscious and on the floor. Officers reported that he had been hanging from the light fitting, feet off the ground for an unknown period of time. On examination pt was very distressed. He was fully conscious – GCS=15/15. He had ligature marks to his neck but had full range of movement. No spinal or back pain. Obs were within normal range. Lengthy discussion with pt as to motivation for suicide attempt with the assistance of interpreter. He appears to have long standing concern about his upcoming extradition to Poland. Concern that he may attempt DSH again in the future, therefore recommended level one obs. Officers aware and PCMHT asked to review as urgently.”

Following that incident the appellant’s lawyers arranged for a psychiatric examination. On 29^th July 2010 Dr Alan Reid, a consultant forensic psychiatrist, visited the appellant at Wandsworth Prison with the assistance of an interpreter. At the start of the interview the appellant produced a razor blade from his mouth, which was duly confiscated by prison officers.

Following that interview Dr Reid produced a detailed report. In that report Dr Reid sets out the appellant’s life history as recounted by the appellant. He then describes the appellant’s recent progress in custody. Dr Reid then records the following:

“He states that once he became aware that it was planned that he would be deported to Poland, he has self-harmed on ten to twenty occasions. He states that he cuts himself on the arm with a razor blade. He showed me a number of healed superficial scars on his arms. He states that he does not always bring these to the attention of the prison staff.”

Dr Reid then deals with the incident on 16^th June. Dr Reid records the appellant’s account that this was a serious attempt in which he lost consciousness. Dr Reid also reports seeing a number of tattoos on the appellant in the course of his examination.

In the opinion section of this report Dr Reid writes as follows:

“7.

On the 16^th June 2010 he attempted to hang himself in his prison cell. There is rather scant information from the prison service about the exact details of this incident and it is difficult to know with certainty to what extent it was just good fortune that this attempt was not successful or whether the incident took place in a manner that made discovery likely. It is unclear from the description whether there was any way in which he could have terminated this attempt once he started it. It is also unclear to what extent he had made this attempt with the likelihood of it being carried through with success. From the information given, it does sound like it was an event that could have resulted in his death but for the intervention of prison staff.

8.

In my opinion I strongly suspect that Mr Mazurkiewicz suffers from traits of both an emotionally unstable personality and an antisocial personality. I am cautious about fully attributing the diagnosis of personality disorder to him, as my information source is very much based on Mr Mazurkiewicz’s account and ideally before a diagnosis of personality disorder is made it is necessary to have good collateral history as to the persons past history and behaviour. It is my opinion that traits of these disorders (affective instability [fluctuations of mood], ability to plan ahead is impaired, outburst of intense anger may often lead to behavioural explosions, impulsive behaviour, tendency to become involved in intense and unstable relationships which may cause repeated emotional crises and may be associated with excessive efforts to avoid abandonment and series of suicidal threats or acts of self harm) are what underlie his inability to envisage any future for himself if deported and his desire to kill himself.

9.

I did not find evidence of severe and enduring mental illness. In my opinion his reported low mood is attributable to his personality disorder and possibly an adjustment reaction to his current adverse circumstances.”

Dr Reid then reviews the relevant literature. He concludes that there is a high risk of the appellant killing himself, and that the risk is higher if the appellant is extradited.

Subsequently some further material was provided to Dr Reid which he duly considered. Dr Reid then wrote a supplemental report, in which he adhered to the views he had previously expressed.

On 18^th October 2010 the appellant appeared before District Judge Wickham at Westminster Magistrates’ Court. The Polish Judicial Authority sought extradition to Poland pursuant to the European Arrest Warrant. The appellant resisted extradition on three separate grounds. The appellant’s first ground was that his mental condition was such that it would be unjust or oppressive to extradite him to Poland. He asserted that there was a very high risk of suicide. He relied upon the provisions of section 25 of the 2003 Act. Secondly, the appellant contended that extradition would infringe his human rights under ECHR. The appellant contended that he would be forcibly tattooed in prison in Poland. That would give rise to a breach of Articles 3 and 8 of ECHR. In this regard the appellant relied upon the provisions of section 21 of the 2003 Act. Thirdly, the appellant argued that extradition would be an abuse of process, because the Polish Probation Service had originally encouraged the appellant to come to the UK.

The appellant gave oral evidence at this hearing in accordance with a written witness statement which he and his solicitors had prepared, dated 6^th September 2010. In this statement the appellant said that he had had some tattoos done voluntarily, but that while he was in prison in Poland gang members had forcibly tattooed his face. He said that this was part of the prison culture in Poland.

In the final section of his witness statement the appellant set out his suicidal intent. He stated:

“27.

I will self harm. I have ready access to blades which I am able to hide on my person. I have smuggled them with me from prison to court on two occasions (25 May 2010 and 2 July 2010) and also have access to them in prison. I carry them to use them on myself immediately in the event my extradition is ordered.

28.

I brought a blade with me when I met with the psychiatrist because I didn’t know that I was going to be assessed and thought I might be extradited and would need to be able to commit suicide.

29.

I will kill myself as soon as the extradition order is made; I will not return to Poland. The prison staff will not be able to find the blades.

30.

I attempted to hang myself on 16 June 2010 in my prison cell. My cell mate had gone to work. I tied some bed-sheets together and tied one end around my neck and stood on a chair to attach the other to a light fitting; I then kicked the chair away. The next thing I remember is coming round on the floor surrounded by prison staff. I had a mark around my neck for 10 days.

31.

The next time, I will use the blades. I also have rope which, although the staff took it from me, I managed to get it back and I carry it with me. I still have movable furniture in my cell.”

The appellant was cross-examined by Mr Myles Grandison, who appeared for the Polish Judicial Authority in the Magistrates’ Court, as he has done in this court.

Dr Reid also gave evidence in accordance with his written report and was cross-examined upon it. The District Judge records in her judgment that Dr Reid said that the opinions expressed in his report were all subject to one important proviso, namely: “If I assume everything is true. It is difficult because I only have his history.”

At the end of the hearing the District Judge said that she would reserve her decision.

Five days later, on 23^rd October 2003, while the District Judge was still considering the matter, there was a further incident. The appellant cut deeply into his left arm. He refused to go to hospital and appeared to have had access to either alcohol or drugs which resulted in a referral to prison discipline. On both that day and the following days, he declined any form of medical assistance that was offered to him.

On 18^th November 2010 the District Judge delivered her reserved judgment. The District Judge rejected all three lines of defence advanced by the appellant. Accordingly, she ordered the appellant’s extradition to Poland.

The appellant was aggrieved by the order for extradition. Accordingly he appeals to the High Court.

By an appellant’s notice dated 23^rd November 2010 the appellant appeals against the order for extradition on two grounds. First the appellant contends that there is a high risk of suicide. Therefore he relies upon section 25 of the 2003 Act. He also relies upon Articles 2, 3 and 8 of ECHR, in conjunction with section 21 of the 2003 Act. Secondly, the appellant contends that he would be liable to forcible tattooing in Polish prisons if he is extradited. Accordingly, that would give rise to a breach of his rights under Article 3 of ECHR. In this regard the appellant relies upon section 21 of the 2003 Act.

The appellant does not pursue what had been the third line of defence in the Magistrates’ Court, namely the argument based upon abuse of process.

Before addressing the appellant’s grounds of appeal, I must first review the law.

In Jansons v Latvia [2009] EWHC 1845 (Admin) the appellant appealed against an order for extradition to Latvia on the ground that he would kill himself if the extradition went ahead. A Divisional Court of the Queens Bench Division, comprising Sir Anthony May (President) and Dobbs J, allowed the appellant’s appeal. The President stressed that that case was not only most unusual but also exceptional: see the first paragraph of the President’s judgment. This was a case where the appellant had hanged himself in his cell. He was cut down at the last possible moment. The appellant’s life was saved by lengthy and skilled medical treatment. Indeed he spent ten days in intensive care and did not recover consciousness until day nine. Furthermore, on the uncontested medical evidence, the appellant was going to kill himself if returned to Latvia. After reviewing the evidence, the President said this:

“29.

There is, in my judgment, a quite stark and single decision which the court has to make in this case and that can be expressed under section 25 as whether it would be oppressive to order his return. In my judgment, in a very difficult case, it would be oppressive. It would, in my judgment, be oppressive to order his return when there is, on any view on the evidence, such a substantial risk that he will commit suicide. It is not as if this is an appellant who is threatening to commit suicide without any history of having tried to do so. Not only is he threatening that he will commit suicide and the doctor believes him but he has in fact, for the same reason, attempted to commit suicide in Wormwood Scrubs Prison and very nearly succeeded in doing so. In reaching the conclusion that it would be oppressive to return him, this is not a reflection on the ability of the Latvian prison authorities to protect him and provide the necessary treatment. But an assessment, so far as the evidence enables one to do so, that the risk that he will succeed in committing suicide, whatever steps are taken, is on the evidence, sufficiently great to result in a finding of oppression. The same line of reasoning, in my judgment, could be applied to Article 8 and I do not think it is necessary to proceed to Article 3. Under Article 8 it seems to me that the inevitable proportionality judgment that has to be made, taking account of the seriousness of the offences, the need to honour international treaties and the finding that the Latvian authorities will, generally speaking, take all reasonable steps to protect him, nevertheless has to be weighed against the risk which the doctor does not express as a risk but as a certainty that he will commit suicide, his mental state having deteriorated.

30.

In my judgment, a judgment of proportionality for Article 8 purposes falls on the side of the finding that his Article 8 rights would be infringed.”

It appears that the facts of Jansons are not quite as rare as they appeared to be. In a series of cases over the last two years since Jansons, fugitives have sought to avoid extradition on the grounds of suicide risk.

In Howes v Her Majesty’s Advocate 2010 SLT 337 the appellant opposed extradition on the grounds of suicide risk. The appellant failed in her argument because the risk was not sufficiently high.

In Prosser v Secretary of State for the Home Department [2010] EWHC 845 (Admin) the appellant appealed against an order for extradition to the United States on similar grounds. A Divisional Court, compromising Sir Anthony May (President) and Foskett J, dismissed the appellant’s appeal. In that case proper medical care would substantially reduce the risk of suicide. The court added, however, at paragraph 22:

“Since in the context a successful actual suicide attempt would necessarily constitute an extreme violation of Article 3 if it were caused by factors for which the Secretary of State should be regarded as responsible, the court is logically concerned with evaluating the risk that a threatened suicide would eventuate and succeed. A very high risk would doubtless be capable of achieving the Article 3 threshold. Our evaluation is that Mrs Prosser’s risk falls significantly short of achieving that threshold.”

In S v The Court of Bologna [2010] EWHC 1184 (Admin) an appeal against an extradition order on the grounds of suicide risk was unsuccessful. Foskett J observed at paragraph 15:

“Obviously, as the Judge himself acknowledged, every case has to be judged on its merits and Mr Richard Mobbs, perfectly correctly, cautioned against being influenced unduly by a “floodgates” argument. However, it does at least highlight the need for circumspection in evaluating the evidence when such an issue is raised in case there is a perception that raising the issue is an easy way of avoiding extradition.”

In Rot v District Court of Lublin, Poland [2010] EWHC 1820 (Admin) the appellant unsuccessfully appealed against an order for extradition on grounds of suicide risk. Mitting J expressed misgivings about the reasoning of this court in Jansons, which had been applied in subsequent authorities. At paragraph 13 Mitting J said this:

“Until and unless the reasoning in Jansons is disproved, the risk of suicide must be accepted to be a relevant risk for the purpose of section 25. The question must therefore be addressed and answered in such a case: would the mental condition of the person to be extradited make it oppressive to extradite him? Logically, the answer to that question in a suicide risk case must be no unless the mental condition of the person is such as to remove 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 therefore may make it oppressive to extradite him. Untidy though it may be, and while Jansons remains good authority, the question must be approached in a somewhat less logical manner. When, as in Jansons, there is uncontradicted evidence that an individual who has made a serious attempt to kill himself will kill himself if extradited, it may be right to hold that it would be oppressive to extradite him. Anything less will not do.”

In Wrobel v Poland [2011] EWHC 374 (Admin) the Administrative Court quashed an order for extradition on the grounds that there was a very high risk of the appellant committing suicide if the extradition proceeded. After reviewing the authorities Bean J rejected the argument that the appellant had to establish a certainty that he would kill himself if extradited. In Bean J’s view, the test had been put too high in Rot. It was sufficient if the appellant could establish a very high risk of suicide.

As the law now stands, I consider that the test which the court must apply is that stated in Wrobel. If the appellant proves that there is a very high risk of suicide in the event of extradition, then he demonstrates that it would be oppressive to extradite him within the meaning of section 25(1) of the 2003 Act.

I do, however, share the misgivings expressed by Mitting J in Rot. A person who is otherwise fit to serve a sentence of imprisonment does not escape such a sentence in this country simply by pointing to a high risk that he will commit suicide. Obviously mistakes are sometimes made, but the prison service has systems in place to protect vulnerable prisoners against self harm. Our criminal justice system operates on that basis. By way of analogy, the reasoning of the Court of Appeal in R v Quazi and Hussain [2010] EWCA Crim 2759; [2011] Crim. L.R. 159 is relevant.

Part 1 of the 2003 Act rests upon the principle of mutual respect for the different criminal justice systems within the EU. Furthermore, the growing number of cases in which the suicide argument is deployed, sometimes with success, must be a matter of concern. If the mistaken belief takes hold that any serious, but unsuccessful, attempt at suicide is rewarded by relief from extradition, this will be highly damaging for all concerned. In my view, therefore, this court was right to stress in Jansons that it is only in a truly exceptional case that in practice a fugitive can escape extradition to a category 1 territory on the grounds of suicide risk.

After this review of the authorities, I must now turn to the first ground of appeal.

The appellant asserts in his witness statement that the incident on 16^th June 2010 was a serious attempt to kill himself. Furthermore, he is determined not to return to Poland. Therefore he will kill himself, if an order for extradition is made.

Dr Reid, the psychiatrist, is more cautious in his analysis. He notes that whether the incident of 16^th June was a serious attempt at suicide depends upon “the information given” by the appellant: see the last sentence of paragraph 7 of the opinion section of his report. Dr Reid does not know whether or not the incident which left the appellant with little injury was stage managed.

It is true that in paragraphs 11 and 12 Dr Reid says that the risk of suicide is high. But Dr Reid qualified those paragraphs in his oral evidence. He told the District Judge that his opinions were subject to an important proviso, namely that he was assuming everything the appellant said was true. Dr Reid added that it was difficult because he only had the appellant’s history.

The District Judge took a sceptical view of the appellant’s evidence. With regard to the razor blades and the scars, the District Judge said this:

“Furthermore, even if this account of the defendant is accepted as being accurate, a picture emerges of a young man with a personality disorder which demonstrates itself as emotional instability with impulsive traits. This is evidenced by self inflicted wounds with sharp implements. The defendant seems to have had free and alarming access to razor blades or craft knife blades. At the time of the extradition hearing on 15^th October there were old scars the most recent of which are on his wrists, according to Dr Reid being of a superficial nature and possibly 6 months old. The defendant, in my opinion, challenges the authorities (i.e. prison staff and the courts) with the threat of self-harm by cutting or wounding as he both boasts of and demonstrates his access to cutting implements. This is done wholly to avoid the extradition process.”

The District Judge noted, correctly, that there was no independent evidence to support the appellant’s assertions beyond the very recent events and the appellant’s account given to the psychiatrist. There was no evidence before the court of previous mental illness or psychiatric treatment of the appellant, either in Poland or in the UK.

I see no basis upon which this court can take a different view from the District Judge, who saw both the appellant and Dr Reid giving evidence and being cross-examined.

This is undoubtedly a case where there is a suicide risk. However, I am unable to say that the suicide risk is so high that the appellant’s rights under ECHR Articles 2, 3 or 8 are infringed, or that extradition would be “unjust or oppressive” within section 25 of the 2003 Act.

I would therefore dismiss the first ground of appeal.

The appellant asserts in his statement that some of his tattoos were carried out at his own request. However, he says that other tattoos were carried out forcibly upon him while he was in prison and against his will. He says that if returned to Poland, prison gang members will tattoo him again on the face and on the hand. They will do it to humiliate him. If he refuses he will be beaten until he agrees. If he goes to the prison guards about this matter, the best that they can do is to put him in solitary confinement. He goes on to say that tattooing is done using amateur equipment and that it involves serious health risks.

In support of this evidence the appellant relies upon an article in News Week, published on 15^th July 2010. This article talks about the culture of tattooing in Polish prisons. The article says that some tattoos were symbolic. The article also says that most codes tattooed on a prisoner are carried out of his own accord, but there are some tattoos that have been carried out under duress.

The appellant contends that if he is returned to Poland and then forced to undergo tattoos in prison, this will be a breach of his human rights under Article 3 of ECHR. Accordingly the appellant relies upon section 21 of the 2003 Act.

Mr Hawkes, for the appellant, points out that the Polish Judicial Authority has obtained no evidence in order to deal with these points. Mr Grandison submits that evidence in rebuttal is not necessary. A single article in News Week hardly makes out the appellant’s case. Furthermore, the article contains no statistical data and no evidence about how common the practice of compulsory tattooing is. Mr Grandison also refers to a number of authorities to the effect that extradition by the UK to a category 1 territory would not put the UK in breach of its obligations under Articles 2 or 3 of ECHR.

I do not need to delve into this line of authorities. This is because the District Judge heard the appellant’s oral evidence and made the following findings of fact:

“I accept the defendant’s evidence of his tattoos and the significance of them. He is a man who indulges in this type of body marking as part of his way of life. It would appear that he never complained to the prison staff in Poland about prison tattoos being performed under duress. Thus, the presence of these tattoos is equally consistent with a voluntary submission to be part of a gang culture and symbolising his participation as a prisoner in crime or in a gang.

Furthermore when interviewed by Dr Reid and setting out in great detail his earlier history he never suggested to him that these tattoos were anything other than part of prison culture which he embraced. That he allowed these things to happen to himself may be part of his personality disorder or lack of adjustment or impulsive behaviour, which is referred to in Dr Reid’s report and to which I shall return later. This does not matter but, equally, it does not begin to point to torture or inhuman treatment in the future which would defeat the safeguards as to his wellbeing which this court must recognise as existing within the Polish Penal System and as part of its European Convention Membership.”

In this passage the District Judge rejects the appellant’s evidence that certain of his tattoos were inflicted under duress. There is no basis upon which this court can go behind the District Judge’s findings of fact.

In the course of argument Mr Hawkes acknowledged the force of this point. He then developed the argument that further tattoos would be such a serious injury that the appellant could not lawfully consent to them. In support of this argument Mr Hawkes relied upon Laskey, Jaggard and Brown v United Kingdom [1997] 24 EHRR 39.

I am afraid that I cannot accept this line of argument. It cannot possibly be a ground for resisting extradition that, if sent to prison in Poland, the appellant may voluntarily submit to the infliction of further tattoos.

I have come to the conclusion that there is no substance to the second ground of appeal. That too must be dismissed.

For the reasons set out in Parts 5 and 6 above I would dismiss this appeal. If My Lord agrees, the order for extradition must stand.

Before parting with this case I wish to make one comment for the attention of the prison authorities. On more than one occasion the appellant has been found in possession of razor blades. The appellant asserts that he has both blades and rope, and that he intends to kill himself.

This court has held that the appellant is at real risk of suicide, even though that risk is not so high as to warrant quashing the extradition order. In those circumstances the UK prison authorities must exercise the utmost vigilance from the moment the appellant is told about this judgment until the moment when extradition is completed. He must be thoroughly searched to ensure he has no access to instruments for self harm. He must be prevented from gaining access to such instruments. Finally, the terms of this judgment should be drawn to the attention of the Polish Judicial Authority and the Polish Prison Authorities.

I request that counsel liaise to ensure that the Governor of Wandsworth Prison has sufficient notice of this judgment and in particular the preceding paragraphs, so that he can put in place the necessary protective measures before the appellant is informed of the dismissal of his appeal.

For all of the above reasons this appeal is dismissed.

I agree.