Stopyra v District Court of Lublin, Poland

These appeals from the City of Westminster Magistrates’ Court were heard together because they raised, apart from certain issues specific to the cases themselves, broadly similar issues relating to the delays arising from the way in which legal assistance is provided in European Arrest Warrant (EAW) cases under Part I of the Extradition Act 2003 (the 2003 Act). At the initial hearing of the appeals, it became apparent that the court did not have the necessary evidence as to the reasons for the delays. The court is grateful to the Ministry of Justice and to the Legal Services Commission (LSC) for the evidence they adduced.

It is necessary for us first to set out the factual background to each of the cases.

The issue of the first EAW

On 15 March 2011 Judge Moralowska of the District Court of Lublin, Poland issued an EAW for the arrest and surrender of the appellant Mr Stopyra to the Polish Judicial Authority as a convicted person to serve four custodial sentences totalling four years and 11 months. The sentences were:

11 week delay in granting of legal aid

In accordance with the usual procedure, Mr Stopyra was brought to the City of Westminster Magistrates’ Court. Although the initial hearing was on 16 May 2011, legal aid was not granted until 11 August 2011. What happened can be summarised as follows:

District Judge Evans (who did not have the benefit of the evidence as to why the delays had occurred which was provided to us) rightly commented that it was:

“deeply depressing that any requested person, particularly one remanded in custody, is not able to have the immediate benefit of legal aid. These delays are extremely expensive and until legal aid is granted no work is done on behalf of the requested person and during that time the UK taxpayer has to pay for his accommodation at HMP Wandsworth. There are costs associated with courts, interpreters and the CPS at each court hearing. The LSC might be protecting its budget (but the administrative costs of processing and then rejecting these applications are not inconsequential) but more importantly it is doing so to the obvious detriment of other budgets. Anyone looking at the issue holistically would immediately see that to grant legal aid in all extradition cases at the first hearing would save tens of thousands of pounds over a year. It is troubling that this requested person had to wait over 11 weeks to obtain his legal representation order.”

The change of representation

The judge directed the final hearing should proceed on 15 August 2011, exactly 13 weeks after the initial hearing, but only 2 working days after the grant of legal aid. On that day two sets of lawyers attended the hearing, Mr Katz of Kaim Todner and Miss Bhatt who also appeared before us at the first hearing and led by Mr Mark Summers at the second hearing. She was instructed by Pollecoff, solicitors. She explained that Mr Stopyra wanted to change solicitors, as he claimed to have lost confidence in Kaim Todner. The judge, applying Regulation 16 of the Criminal Defence Service General Regulations 2001 and the guidance given on that in Ashgar Khan and other cases, agreed to the transfer. As the judge explained in his judgment, this was a pragmatic decision.

The evidence on the extradition hearing for the first EAW

the judge understood that Miss Bhatt, on behalf of Mr Stopyra requested an adjournment, but it was refused. The judge heard the evidence of Mr Stopyra and his partner. That evidence essentially (i) explained the risk he faced in prison because he had been an informer and because of a personal vendetta by a policeman, (ii) described his private and family life as there were three children aged 7, 5 and 1, and (iii) set out the fact that he had been diagnosed 15 years ago with HIV in Poland and had not been treated properly when in prison in Poland.

As regards the third issue, the diagnosis of HIV, the only evidence before the court, apart from the testimony of Mr Stopyra himself and his partner, was a short letter from Dr Mark Pakianathan, a Consultant at St George’s Health Care Trust in Sexual Health and HIV. The letter explained that Mr Stopyra suffered from advanced HIV infection and was being treated at Wandsworth Prison. Dr Pakianathan was concerned that Mr Stopyra was developing multi-drug resistant HIV related to previous treatment and eruptions. He had requested an urgent ultrasensitive HIV resistance assay and was awaiting the results. From a clinical perspective establishing optimal management of his HIV condition would be a priority. He concluded:

“[Mr Stopyra] will require close and intensive input from specialist HIV services for the next few weeks until we establish his current disease status. Consideration should also be given regarding the availability of his current and other second line antiretroviral agents in Poland.”

The decision of the judge on the first EAW

District Judge Evans, as we explain in more detail at paragraphs 60 and following, did not accept that the evidence adduced on the first two issues was capable of breaching his rights under either Article 3 or Article 8. It will be necessary to return to the first issue as it was a specific subject of the appeal.

The judge expressed the view that the evidence in relation to the third issue was insufficient for the purpose of Article 3 or for discharge or adjournment under s.25 (1) of the 2003 Act. However, as further relevant medical evidence might be forthcoming the judge asked for additional medical evidence to be made available by 30 August 2011. He made it clear that it would be desirable to discover the results of the test before proceeding further.

Further evidence was submitted in the form of a letter from Dr Pakianathan dated 12 September 2011 stating that Mr Stopyra had no drug-related resistance, but would require careful monitoring. That evidence was adduced at a hearing on 15 September 2011. No application was made for a further adjournment or to put in any further evidence.

In a written judgment handed down after the hearing on 15 September 2011, District Judge Evans set out his view of the evidence before him in relation to the treatment that would be provided; we return to this at paragraph 68 below.

He then pointed out at paragraphs 34 and 35 the circumstances in which the court had to consider the position of Mr Stopyra:

“34.

This court has, on average, between 4 to 8 initial hearings six days each week. That is between 24 to 48 new cases each week. Many [requested persons] do not want to return to the requesting state. By far the most popular challenge is to claim that Human Rights would be infringed if extradited. Articles 3 and 8 ECHR are again the most popular articles said to be infringed. The next most popular challenge is section 25 of the Act that is to extradite the [requested person] would be oppressive given his medical condition.

35.

In relation to section 25 many [requested persons] have underlying medical conditions. HIV and Hep C are quite common for those who have abused drugs. Many are depressed and that depression is almost certainly going to deepen with the threat of extradition. However, whatever the underlying condition if, prior to their arrest on the EAW, they have been living and working in the UK for a number of years, functioning perfectly well, without the need to call upon the services of a doctor (let alone a psychiatrist) I see no reason to adjourn for any medical reports. It is quite unreal to suppose that some medical condition develops on an EAW arrest.”

The judge had previously refused to grant an adjournment to allow Mr Stopyra to produce clear and cogent evidence in relation to his medical condition. If a judge was to accede to every request made for an adjournment, that judge would be abdicating his case management responsibilities. There would be interminable delays at great cost to the state, there would be fishing expeditions and lawyers might commission expert reports to see if they could get the necessary clear and cogent evidence. A convicted person in the position of Mr Stopyra had every incentive to delay extradition so he could serve his sentence in the UK rather than in Poland; many such persons appealed as they had nothing to lose and everything to gain. He considered that, to obtain an adjournment, a requested person had to convince the court that there was a real issue and there was a realistic prospect of obtaining the necessary evidence. A court should probe and satisfy itself that there was a proper case for an adjournment. In the instant case, it could be assumed that the Polish prison service would cope with his particular needs, in the absence of a report questioning the ability of the state to provide for such needs.

The judge then invited this court to give guidance, in the light of the delays with legal aid and obtaining medical evidence, as an extradition court had to deal with requests for extradition with regard to the provisions of Article 17 of the Framework Decision (see further below).

The second EAW

On 18 October 2011 Judge Laszczych of the Regional Court of Ostoleka, Poland issued a further EAW for the arrest and surrender of Mr Stopyra to the Polish Judicial Authority as a convicted person to serve two custodial sentences imposed in 2004 and 2005, each of a year after conviction of possession of drugs; 1 year, 11 months and 5 days remained to be served. The EAW was certified by SOCA on 29 November 2011. He was arrested on 14 December 2011. In opposition to that EAW, Mr Stopyra relied on the matters he had relied on in relation to the first EAW and also upon his depression and the risk of suicide.

The evidence in respect of the second EAW

After the appeal had been filed in respect of the first EAW, Dr Pakianathan (who had provided the report to which we referred at paragraph 8) provided a further report dated 6 January 2012. In summary, he concluded that the treatment being given was working optimally and provided Mr Stopyra adhered to the therapy, the long term prognosis was good. He required 4-6 month monitoring. If there was a break in his treatment, the consequences could be serious. The availability of access to second line antiretroviral treatment containing protease inhibitors would be essential to the ongoing management of his HIV.

The Polish court provided further information in a letter dated 21 February 2012 about the medical treatment that would be provided in prison. In respect of the HIV and his depression, it was stated that the treatment in the UK would be continued with the medication he had been receiving. While serving sentences, persons who were a suicide risk were provided with intensive supervision from the prison service with psychiatric consultations and, if necessary, being placed in psychiatric wards.

The extradition hearing took place before the Deputy Senior District Judge on 1 March 2012. Mr Stopyra gave evidence. His evidence in relation to prison and HIV was similar to that he had given to District Judge Evans. As to the depression from which he was suffering, he accepted he had not received any psychiatric treatment since he had been in the UK and he had not needed anti-depressants until just before the judgment of District Judge Evans. Dr Horne, a consultant psychiatrist who had worked in Broadmoor for 20 years but was now in private practice, also gave evidence. Dr Horne had seen Mr Stopyra at Wandsworth on 1 December 2011. In his report dated 17 December 2011, he stated that Mr Stopyra was suffering from a moderately severe depressive illness. Based on Mr Stopyra’s account to him to the effect that he had suicidal thoughts and worried that he would not be treated properly in Poland, Dr Horne’s opinion was that there was a very serious risk of suicide if he was extradited in his present state; he should not be extradited until he had recovered from his depression for which he could be treated in prison. His dose of anti-depressants needed to be increased; a recovery would normally take 3 months, but Mr Stopyra’s recovery was likely to take considerably longer because of his worries. In his oral evidence, he said Mr Stopyra was still moderately depressed, but depression flared up in response to life events and other pressures.

The decision of the Deputy Senior District Judge on the second EAW

In a judgment given on 16 March 2012, the Deputy Senior District Judge ordered Mr Stopyra’s extradition to Poland. In essence she followed the decision of District Judge Evans in relation to the issues on ill-treatment in prison by guards or other prisoners and on Article 8. She found his evidence did not amount to clear and cogent evidence that he would suffer ill-treatment from non-state agents. The judge concluded that as long as concerns about extradition continued, Mr Stopyra was likely to remain depressed, but sufficient medication was available to counterbalance the risk. This was not therefore a case where there was a sufficiently high risk of suicide. Therefore there were no grounds for discharge or adjournment under s.25.

The grounds of appeal

Mr Stopyra appealed against the first decision on the ground that, as the Polish Prison authorities could (a) not protect him from harm or (b) provide appropriate medical care, it would be a breach of his Article 3 rights to extradite him; the judge had applied the wrong test to the assessment of the evidence. The judge was wrong to reject the Article 8 case. He appealed against the second decision on the additional grounds that the judge was wrong in finding that the extradition was not oppressive within the meaning of s.25 of the 2003 Act. As Mr Stopyra had not sought an adjournment at the hearing on 15 September 2011, no ground of appeal was pursued in relation to any failure to grant an adjournment.

The issue of the EAW

On 26 January 2011 a judge of the Penal Enforcement Group of the Hajdu-Bihar, County Court, in the Republic of Hungary issued an EAW for the arrest and surrender of the appellant Debreceni to Hungary to serve the remainder of a two-year sentence of imprisonment. The sentence was imposed after his conviction of possession of drugs with intent to supply which took place in January 2003 in Hungary. The portion of the sentence remaining to be served by Mr Debreceni was stated to be 23 months and 1 day. The Framework list was ticked in respect of an offence of “illicit trafficking in narcotic drugs”. The EAW was duly certified by SOCA on 6 June 2011.

It should be noted that Mr Debreceni left Hungary and came to the UK in June 2007, a month after the Court of Appeal in Hungary upheld his sentence of imprisonment.

The delays in the hearing

Mr Debreceni was arrested under the Warrant on 11 July 2011. He appeared before District Judge Evans at the City of Westminster Magistrates’ Court on the same day. The extradition hearing was formally opened and adjourned until 15 July 2011.

Between 15 July and 13 September 2011 there were five hearings:

Mr Debreceni explained that he had been represented at some, but not all, of the hearings. Sometimes he had had to represent himself. This was because of problems in getting legal aid. He also said that the solicitors whom he had seen were not able to carry out the necessary background research for his case or contact the police officers in Hungary who had had the conduct of his case and would be able to verify his concerns about the risks he faced if he returned.

The extradition hearing on 29 September 2011

On 29September 2011 Mr Debreceni appeared before District Judge Evans. At that hearing he was represented by Mr Irwin who applied for a further adjournment to obtain legal aid. The judge refused the application.

The judge proceeded directly to determine whether Mr Debreceni should be extradited. He determined all the issues against Mr Debreceni, expressing his reasons for his decision in very brief terms. We set out below Counsel’s note of the judgment:

“1.

In this extradition hearing Mr Debreceni claims that if he is returned to Hungary he will suffer Article 3 ill-treatment while serving in prison because he will be subject to assaults or worse by persons acting under the instructions from those who suffer by his actions.

2.

This case raises similar issues to those raised in the case of Polish IJA v. Stopyra. Mr Debreceni suffered an inability to obtain legal aid. The initial hearing took place on the 11^th July 2011. It is now the 29^th September. There have been at least 2 applications and the court has been told today that the latest applications have been refused. This the 9^th hearing.

3.

The court has declined to adjourn further. The requested person has given evidence on oath and adopted the proof made up of 26 paragraphs and dated 8^th September 2011. Attached to his proof are exhibits ‘A’ and ‘B’. Exhibit A is a document containing written representations by Mr Debreceni’s lawyer in Hungary. Exhibit B is a written statement by the requested person’s mother.

4.

In his proof Mr Debreceni explains that he became involved in criminality. He says he was forced to behave in the way he did and claims he was acting under duress. It is clear from the Hungarian judgment that this was not accepted. Apart from that everything he says may be true.

5.

The evidence is quite insufficient to establish that Mr Debreceni will be subjected to Art 3 ill-treatment. There are a number of authorities on this issue. I do not list them all here and refer to Stopyra (above). I therefore order extradition.”

Mr Debreceni’s grounds of appeal

Mr Debreceni lodged and served a notice of appeal which he had drafted with the assistance of HMP Wandsworth Legal Services. He was not represented at the first hearing of the appeal. After the adjournment of the appeal, legal aid was granted. He was represented at the further hearing by Mr Gill QC and Mr Henley. The main grounds of appeal then advanced were that the Judge should have granted an adjournment and that extradition would breach his Article 3 and Article 8 rights.

The requirements of Article 17 of the Framework Decision

Article 17 of the Framework Decision, to which District Judge Evans referred in his judgment in Stopyra, requires an EAW to be dealt with and executed as a matter of urgency. A final decision should be taken within 60 days after the arrest of the requested person; if the decision is not made within that timescale, then the executing judicial authority must inform the issuing judicial authority and give the reasons for the delay. The time limit is then extended by a further 30 days. If the time limits cannot be observed, then Eurojust must be informed.

Although this Article was not given direct effect in the 2003 Act, it is clear that a UK court should interpret the 2003 Act so far as is possible consistently with the Framework Decision: see Assange v Swedish Prosecution Authority [2012] UKSC 22 at para 10. The time limits specified in the 2003 Act should, therefore, be read in the context of that obligation. Furthermore in view of the presumption that the domestic law of the UK should accord with its international obligations, a court as part of the judicial branch of the state should so far as possible discharge its functions under the 2003 Act so as to fulfil the obligations of the state undertaken under the Framework Decision.

The right to legal representation

The Framework Decision provides by Article 11(2):

“A requested person who is arrested for the purpose of the execution of a European arrest warrant shall have a right to be assisted by a legal counsel and by an interpreter in accordance with the national law of the executing Member State.”

In view of the presumption to which we have referred in paragraph 31, it should follow, in our view, that a person arrested must be afforded legal representation in sufficient time to enable the court, as the executing authority, to comply with its obligations under Article 17.

As there is the right to legal assistance, it is difficult to see how it can be just for a requested person to decide to consent to extradition or to decide not to contest extradition or for the extradition hearing to proceed beyond its formal opening, unless and until he has had a proper opportunity to take legal advice. In many cases the duty solicitor scheme, if properly funded and administered to provide enough time to give the necessary advice, will provide sufficient assistance for a person to consent to or not to contest the extradition. The importance of proper organization and funding is underlined by what is said by Lord Mance at paragraphs 10 and 40 of the judgment in Lukaszewskiv The District Court in Torun, Poland [2012] UKSC 20.In other cases, the duty solicitor scheme will not. Greater legal assistance will be required. It is in such cases that the means testing system for the provision of legal advice has given rise to significant problems.

Means testing and the delays occasioned by the current system

A system of means testing is compatible with the obligations; see Olsson v Minister for Justice, Equality and Law Reform [2011] IESC 1. In any event, given the status of a Framework Decision, provision for means testing enacted though primary legislation would displace any obligation to provide legal aid without means testing.

There have been various suggestions made that legal aid be granted without means testing. More importantly, the Report of the Home Office Review led by Sir Scott Baker (30 September 2011) recommended that the Ministry of Justice urgently consider non means tested legal aid in extradition proceedings. However, as means testing is compatible with the obligation under Article 11.2 and as it is permitted by statute, it is for the Ministry to determine whether or not to accede to such suggestions and the recommendations of Sir Scott Baker and his review. The evidence of Mr Stephen Gascoigne, a senior policy adviser in the Ministry of Justice, was that the introduction of a non-means tested system was on financial grounds alone an unattractive option. There were other policy reasons that confirmed this view.

Given that expression of view by the Ministry, it is necessary to consider the compatibility of the system for means testing with the timeliness requirements of the 2003 Act, the obligations undertaken in the Framework Decision and general principles of fairness and justice as regards the timely delivery of justice. Although Mr Gascoigne accepted that the delay in the case of Mr Stopyra was a cause for serious concern, his view was that there was no wider systemic failing in the design or structure of the means test.

As was cogently and eloquently submitted by Mr Mark Summers and supported by the other counsel and lawyers appearing, it is clear that the present system for means testing produces unacceptable delays that are unjust. The system is in effect unworkable in practice within the time limits set out in the 2003 Act and the Framework Decision and is inconsistent with overarching principles of fairness and justice in timely decision-making in extradition cases. The system has the effect of putting the courts, as the executing judicial authority and the branch of the state responsible for discharging the obligations under Article 17, in breach of those obligations. The system also takes no account of the issues particular to extradition cases such as language difficulties and the need for expedition. The delays caused have been commented on by this court in Kozluk v Circuit Court Lublin [2009] EWHC 3523 (Admin), R(Jeziorowski) v District Court in Torun, Poland [2010] EWHC 2112 (Admin), Marusinski v Regional Court of Piatrkow, Poland [2011] EWHC 1296 (Admin). Comment has also been made in the 15^th Report of the Joint Committee on Human Rights: The Human Rights Implications of UK Extradition Policy (June 2011). The Review led by Sir Scott Baker stated that if the Ministry did not introduce non means tested legal aid, then “other steps need urgently to be taken to remedy the present unsatisfactory situation”. That situation is described in Appendix F to the Review; the Ministry had assumed one third to two thirds of adjournments were caused by legal aid means-testing.

We therefore cannot accept the evidence of Mr Gascoigne that there is no systemic failing in the design or structure of the system for means testing. For example,

The evidence of Mr Michael Rimer, a senior legal adviser at the LSC, was that there had been considerable improvements to the processing of legal aid applications, but the statistics he provided were in relation to all legal aid applications (and not simply extradition applications where it is known that particular difficulties exist). Nor are the seemingly impressive statistics of any real assistance, as they measure the time between the submission of a completed questionnaire with all the supporting evidence and the grant of legal aid. They do not measure what is necessary for the purposes of compliance with the Article 17 time limit and with the requirements of the proper administration of justice, namely the time that elapses between the making of the application and when it is granted.

The necessity to reform the current system

The evidence of Mr Gascoigne was that the LSC, the Ministry and the judges at the City of Westminster Magistrates’ Court, which as of 27 September 2011 became Westminster Magistrates’ Court, had been working closely together with HMCTS and defence solicitors to tackle the issues that had arisen in relation to the time taken to grant legal aid. However, it is clear that this has not resolved the problems.

We were invited to consider whether we had power to remedy the matter in the manner suggested by the Review led by Sir Scott Baker. However, we have no such power to disregard the system of means testing or to substitute a different system. That power is allocated to the Ministry of Justice and not to the judicial branch of the state.

In the light of our conclusion that the current system is (a) incompatible with the United Kingdom’s obligations and (b) contrary to principles of justice in that it does not result in the decision on legal aid within a proper time frame, it is clear that urgent action must now be taken by the Ministry of Justice.

In short, the current system needs urgent revision to eliminate delays. The UK must put in place a legal aid system for EAWs which ensures that requested persons have speedy access to legal representation, i.e.within a timeframe which is (a) compatible with ensuring compliance with the time limits laid down in the Framework Decision in Articles 11 and 17 and (b) consonant with the principles of justice.

If steps are not urgently taken by the Ministry, then no doubt there will be further appeals or applications for judicial review to this court and the United Kingdom will remain in breach of its treaty obligations.

The effect of delays in the grant of legal aid

It is clear from what we have already said that delays occasioned by means testing which are not occasioned by the fault of the requested person or his legal advisers, cannot be held against the requested person. Indeed, as we have said, it would be unjust in cases where the initial advice of a duty solicitor (under a properly funded scheme) is insufficient, to proceed either (a) to obtain the consent of the requested person to extradition or (b) with the extradition hearing itself, unless and until the means testing procedure is completed and adequate time to advise and obtain evidence has been afforded.

The effect of the Ministry of Justice’s current system is in practice to stop the clock as regards the position of the requested person in such cases. Until means testing is complete, it is unreasonable to expect the legal adviser to advise. That may put the court as the executing authority and as the branch of the state responsible for the performance of the obligations under the Framework Decision in breach of those obligations, but that breach is not the fault of the judicial branch of the state, but of the Executive Branch. It is wrong, in principle, to visit that fault on the requested person. We appreciate that until the Ministry of Justice reforms its system for legal aid, this may cause significant delays and increase the work of the Westminster Magistrates’ Court. However, the proper and fair administration of justice leaves the judiciary with no alternative until the present legal aid system is reformed.

The time required to prepare a case and obtain evidence

In cases where more assistance is needed than can be provided under the duty solicitor scheme, once the means test has been completed, the court should endeavour to complete the extradition hearing in the time set out in the 2003 Act and in accordance with the obligations under the Framework Decision.

If the legal adviser requests more time, it is for the court to consider whether it is in the interests of justice to grant it: s.8(5) of the 2003 Act. It is for the lawyer for the requested person to justify more time. The lawyer must demonstrate that there is an issue that can be properly argued and explain why time is needed. The lawyer can anticipate that the request will be the subject of robust and rigorous scrutiny by the judge.

Each case must depend on its circumstances. For example, in an Article 3 case, if the case advanced does not meet the high threshold required of clear and cogent evidence in view of the rebuttable presumption of compliance (to which we refer at paragraph 63 below), there will be no need to adjourn the case for evidence to be obtained. If a case is advanced in relation to matters that this court has already decided, then again, in the absence of the real prospect of credible fresh evidence, there is no need for an adjournment. But there will be other cases where justice requires an adjournment and delays in the grant of legal aid which are not attributable to the requested person must not be held against him.

The length of the adjournment should be as short as is required by the interests of justice. The legal advisers are under a duty to progress the obtaining of evidence with the utmost expedition; pressure of other commitments is no excuse.

District Judge Evans drew attention to the risk of creating “an industry for lawyers to make money out of routine cases by allowing inappropriate adjournments so as to accommodate defence requests to seek evidence”. Counsel in the appeal and the LSC all denied that there was any such industry. A court must, however, be astute to such a risk. It can guard against it by a suitably rigorous examination of requests for adjournments as we have set out.

Medical reports and legal aid

In cases where an issue under s.25 of the 2003 Act is raised, the court should ordinarily expect independent medical evidence to be available, even if only of a preliminary kind, if an adjournment is requested.

There is, however, a further difficulty arising from the way in which the legal aid system operates. There are two ways in which a solicitor may recoup the cost of obtaining independent medical evidence after the grant of legal aid.

The LSC made it clear that if a District Judge gives an indication that an expert report is required, the LSC would almost invariably regard the costs as reasonably incurred. The LSC maintained that a judge could not bind the LSC on the costs of the report. We do not understand this. It would, in our view, be irrational for the LSC to decline to reimburse the solicitor for the reasonable cost of a report, if a District Judge said a report was required; it would self evidently be reasonable for a solicitor in those circumstances to obtain one. However, the reasonable cost of the report is not a matter for the District Judge; that is a matter between the expert, the solicitor and the LSC.

It appears that the system for using experts in Part 1 extradition cases is, however, the same as the system for other criminal cases. The system does not, it appears, take into account the obligations under Article 17 of the Framework Decision and the need for expedition. In the case of a requested person who is in custody, there should be no difficulty at all in providing an initial report from the prison authorities which should provide independent evidence to the judge as to whether there is an issue under s.25. A system should be put in place to provide such a preliminary report within days of the arrest.

If the judge considers that there is an issue on which further evidence is required, it is difficult to understand why a system cannot be put in place for extradition cases under which the judge’s view is taken as sufficient that a report is needed. The issue of cost should be determined speedily on a fixed fee or other basis. The requirement of prior authority inevitably causes further delay and self certification places too much risk on the solicitor. Again, the Ministry of Justice needs to consider these issues urgently.

Net saving in cost

It is worth noting, as District Judge Evans rightly observed, that an improved system for the provision of legal aid in extradition cases is likely in the long run to lead to a substantial net saving of cost for the public purse because of (a) the reduction or elimination of delays in EAW court proceedings and (b) a reduction in the time in which requested persons are held in custody in the United Kingdom pending extradition.

Ill-treatment in prison through attacks by guards or other inmates

There were two bases for Mr Stopyra’s contention that he would be ill treated: the first basis related to the position of his partner’s ex-husband; the second to his position as an informer. As we have set out at paragraph 7 above, it was the evidence of Mr Stopyra and his partner that his partner’s ex-husband was a police officer. He was upset at the relationship his ex-wife had formed with Mr Stopyra and made it his business to harass them. In 2004 Mr Stopyra was stopped by police and offered a deal that if he provided information about drug trafficking, the police would do their best to ensure he was not remanded into pre-trial detention. Although he kept to his side of the bargain, the police did not keep their side. Each time he was arrested, he was beaten and “stitched up” with evidence so that he was forced to accept his guilt. The ex-husband would use his influence to see that Mr Stopyra would, while serving his sentence, receive that degree of ill-treatment that amounted to a breach of Article 3; it would be either direct harm from prison guards instigated by the ex-husband or from inmates acting on his instructions to which the guards would turn a blind eye. He would also receive similar ill-treatment as an informer. The prison governor would not be able to provide adequate protection.

As to the first basis, District Judge Evans did not find the evidence of Mr Stopyra or his partner credible as regards the role of the ex-husband. As to the second basis, he did not find Mr Stopyra convincing on the issue of whether he was supplying information about criminals to the police, but accepted that there was some truth in what he said. If it was true, then there might be those either within the prison or those from outside the prison with influence in the prison who could arrange for him to receive ill-treatment amounting to a breach of Article 3. However, there was no independent evidence. The prospect of Mr Stopyra obtaining such evidence was remote. More was needed than the self-serving evidence given by Mr Stopyra. He therefore rejected the case that there would be a breach of Article 3.

It was contended on behalf of Mr Stopyra on the appeal that although it was established that clear and cogent evidence was needed, there was no requirement that the evidence be independent or supported by independent evidence.

It is neither necessary or desirable, in our view, to set out again or re-state the requirement that clear and cogent evidence is required to rebut the presumption that Poland as the requesting state will be able to and will fulfil its obligations under the Convention: it is well summarised in Agius v Court of Magistrates of Malta [2011] EWHC 759 (Admin) at paragraphs 17-20. There has to be shown that there is “a real risk”of the requested person being subjected to torture or to inhuman or degrading treatment (R (Ullah) v Special Adjudicator [2004] 2 AC 352 at paragraph 24).

Whether there is clear and cogent evidence is fact specific; the evidence does not have to be independent, for there might be cases where a judge will accept the evidence of the requested person as sufficient. That is likely to be a very rare case, as it is highly unlikely that a requested person would be able to give evidence about the ability of a State to prevent ill-treatment amounting to a breach of Article 3.

In the present case, the judge did not accept the account of Mr Stopyra or his partner in relation to the ex-husband. That first basis therefore could not begin to found an argument of a possible breach of Article 3.

As to the second basis on which ill-treatment in prison was anticipated – Mr Stopyra’s role as an informer - the judge accepted that there might be some truth in that. Informers are at risk in any prison system and, therefore, steps have to be taken to protect them. We can find no evidence at all in the material put before us which begins to amount to clear and cogent evidence that the Polish prison authorities would be unable to protect him from such ill-treatment, let alone ill-treatment that would amount to a breach of Article 3. Mr Stopyra’s evidence on its own was insufficient as he was in no position to speak to the steps the Polish prison authorities could take; the evidence in the reports related to treatment for HIV.

Article 8

As we have set out at paragraph 9, the judge rejected Mr Stopyra’s claim that his extradition would breach his Article 8 rights. We have reconsidered his position in the light of the decision of the Supreme Court in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25. In our view, there was no evidence that began to amount to an Article 8 case; he had been convicted of serious offences and had evaded the sentence on him. The public interest in extradition far outweighed his Article 8 rights; this was not a case where there was any real basis for saying that the consequences of the interference with family life would be especially severe.

His HIV

As we have set out at paragraphs 12 to 14 above, District Judge Evans rejected Mr Stopyra’s case on the inability of the Polish prison to provide appropriate medical treatment for his HIV condition. As Mr Stopyra was not a convincing witness, the judge was not prepared to act on what he claimed was inadequate medical care when he was last in a Polish prison. There was no evidence that he needed particular care when he was remanded for 3 weeks in 2006 and since then changes and improvements had been made in the medical care provided in Polish prisons. His needs had changed. Little was to be gained by exploring what had happened in the past. He had put forward no clear and cogent evidence to show he would not receive adequate treatment in a Polish prison.

It was submitted that in the light of Mr Stopyra’s HIV condition, the Polish authorities should provide evidence that they can provide appropriate medical care. Although it is not for the Polish authorities to provide evidence in each case that adequate treatment is available (for that would be to undermine the presumption in relation to Article 3), however a specific assurance has been given in this case as we have set out at paragraph 18. In the light of that assurance in relation to Mr Stopyra’s treatment for his HIV condition, it is now unarguable that his extradition would be a breach of Article 3, or that he should be discharged or the hearing adjourned under s.25.

His depression

As we have set out at paragraph 20, the Deputy Senior District Judge rejected his case under s.25 in the hearing on the second EAW based on his depression and risk of suicide.

It was submitted on his behalf that the judge had misunderstood the evidence of Dr Horne and had applied the wrong test.

In Government of South Africa v Dewani [2012] EWHC 842 (Admin), this court said at paragraphs 72-76, that the task of the court under s.25 was a fact specific enquiry as to whether it was "unjust or oppressive" to extradite the requested person. That enquiry required regard to be had to all the relevant circumstances, including the fact that extradition was ordinarily likely to cause stress and hardship; neither of those was sufficient. Little was to be gained by looking at the facts of other cases. We therefore refer to none.

The Deputy Senior District Judge had the advantage, which we did not have of hearing Dr Horne. Her findings were findings that were well supported by the evidence. Taking all the circumstances into account, the judge was right to conclude it would be neither unjust nor oppressive to order his extradition.

In our judgment, District Judge Evans and the Deputy Senior District Judge were right to order the extradition of Mr Stopyra. The appeal is therefore dismissed.

Ill-treatment in prison through attacks by other inmates

As appears from the judgment of the judge which we have set out in full at paragraph 28, Mr Debreceni’s case was that he would suffer in prison at the instigation of a drug dealer that degree of harm which would amount to a breach of Article 3. His evidence was that he was currently at risk of real harm by non-state agents because he had co-operated with the Hungarian authorities and was prepared to give evidence against a well-known drug trafficker in Hungary, Zoltan Tanyer, with whom he was connected. He said that, as a result, he and his family had been threatened by the co-accused in Mr Debreceni’s drugs trial, Mr Bencze, against whom Mr Debreceni said he had also been prepared to give evidence. Mr Debreceni asserted that this was why he left and came to the UK, not because he wanted to avoid his prison sentence. Mr Debreceni relied upon evidence from his lawyer in Hungary, Dr Istvan Dobrossy, his mother and his own proof of evidence as evidence of the history of this matter.

The judge appears prepared to have accepted Mr Debreceni’s evidence on its face, save for his allegation that he was subject to duress, but held that it was insufficient to satisfy the Article 3 test (see paragraphs 4 and 5 of the Note of Judgment set out at paragraph 28 above).

In a case such as the present where the essential case is that there is a real risk of ill-treatment at the hands of a non-state agents, it must be shown both (a) that the risk of ill-treatment is real and (b) that the authorities of the receiving state are not able provide reasonable protection against it: see R v Secretary of State for the Home Department ex-parte Bagdanavicius (FC) and another [2005] UKHL 38; James McClean v The High Court of Dublin, Ireland [2008] EWCA 547 (Admin).

In our view, the judge was entitled to find, on the material before him, that Mr Debreceni had not established the first requirement as he failed to demonstrate that he was at risk of harm if he were to be returned to prison in Hungary:

He had also failed to satisfy the second requirement. There was no clear or cogent evidence before the judge to rebut the presumption that Hungary was willing and able to comply with its obligations under the European Convention or that the Hungarian authorities would not be able to protect Mr Debreceni should he be returned to prison. Further, Mr Debreceni himself gave evidence of the existence of a protected witness scheme.

Mr Gill QC relied on a sentence in the judgment of District Judge Evans in which he stated “Apart from that everything else [Mr Debreceni] says may be true” (paragraph 4 of the judgment). He submits that this amounted to a finding of fact by the Judge in Mr Debreceni’s favour, i.e.that there existed a real riskof his being subjected to torture or to inhuman or degrading treatment if returned to Hungary, and that, given the lack of evidence filed by the respondent at that stage, the judge ought to have gone on to hold that the Article 3 test in R (Ullah) v Special Adjudicator was satisfied.

We do not, however, view this sentence in the judgment in the same way. As in James McClean v The High Court of Dublin, Ireland [2008] EWHC 547 (Admin) where a similar point arose, in our view, the judge was not purporting to make a finding of fact but merely expressing an assumption which he was prepared to make. This assumption was preparatory to his determinative finding in the final paragraph of his judgment, viz. even if everything Mr Debreceni (aside duress) was true, nevertheless his evidence was “quite insufficient to establish that Mr Debreceni will be subject to Article 3 ill-treatment” (paragraph 5 of the note of the judgment).

Mr Gill QC also submitted that the Judge did not direct himself correctly as to the test for Article 3. He submits that instead of concluding in paragraph 4 of his judgment that the evidence was quite insufficient to establish that Mr Debreceni “will” be subject to ill-treatment, the learned District Judge should have asked whether there were “substantial grounds for thinking that there was a real risk”that Mr Debrecini might suffer ill-treatment. In our view, however, there is nothing in this point. The judge is an extremely experienced judge in this field and was merely using short-hand for the Article 3 test.

Mr Gill QC also asked us to consider new material, comprising (i) an e-mail dated 30 January 2012 from one of the police officers intimating his view that Mr Debreceni would have grounds to fear that he could suffer “serious repercussions” at the hands of the other criminals involved in the original drugs case since one of the defendants had considerable influence in the prison system in Hungary but would only be prepared to give evidence regarding this if given witness protection; and (ii) various reports regarding the Hungarian prison system, including the Council of Europe Report to the Hungarian Government on the visit to Hungary carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 24 March to 2 April 2009 and the Briefing Paper of the Hungarian Helsinki Committee dated February 2009.

In the circumstances which obtained in this case, in which Mr Debreceni had limited legal representation and the legal aid issues remained unresolved, it is in the interests of justice to admit the new material along with the statements made by the Hungarian authorities and relied on by the Hungarian court. However, in our judgment, the new materials do not carry Mr Debreceni’s case across the threshold of satisfying the test in Ullah that Mr Debreceni can demonstrate “a very strong case”that if returned to Hungary he runs “a real risk”of being subjected to the retribution at the hands of Mr Bencze from which he will not be protected by the Hungarian authorities.

In the statement from the Ministry of Public Administration and Justice Department of International Criminal Law dated 10 October 2011, the Hungarian authorities stated:

“The Chief Prosecutor of Hajdu-Bihar County provided the following answers…

The hearing of Mr Zsolt DEBRECENI (born on 10^th March 1980) as a witness was planned during the criminal procedure of Mr. Tamas BENCZE. The hearing, finally, didn’t take place. Reasons and necessity of security or protective measures didn’t emerge.

However, if Hungarian authorities were provided with any information in relation to an eventual attack or threat menacing the above mentioned person or his family, appropriate measures would be taken to ensure the protection of the person concerned.”

In a further statement from the Ministry of Public Administration and Justice Department of International Criminal Law dated 18 April 2012, the Hungarian authorities gave a series of detailed assurances regarding the Venice Commission on the Acts of Parliament relating to judicial reform in Hungary which came into force on 1 January 2012 and answered specific questions raised by the CPS in the present case including the following:

“As to Question No. 6: If the authorities had official, concrete information about any attack threatening the named person or his family, they are capable of guaranteeing the necessary level of protection for the persons concerned. The Report of the Venice Commission referred to above has no effect on this matter.”

We consider that we can take full account of such statements, as there is no clear and cogent countervailing evidence to suggest that they are incorrect. There is nothing to suggest that the Hungarian authorities would not be able to protect Mr Debreceni from any such risk of harm. For this reason, whatever the position under the first limb of Article 3, the appeal fails under the second limb in any event.

Article 8

Mr Debreceni contends he has a settled life in the UK and that he would like to remain here. He states that:

We have reconsidered the position under Article 8 in the light of the decision in HH. Mr Debreceni’s circumstances are manifestly insufficient to render extradition disproportionate under Article 8. There is no evidence that the consequences of extradition would be so exceptionally serious as to bar extradition.

Article 6

Mr Debreceni’s original grounds of appeal appeared to raise an Article 6 case although not put in those terms. The argument, in any event, has no basis. Mr Debreceni has already been convicted; he was properly represented at trial. There is no evidence to suggest that the proceedings constituted a flagrant denial of justice going beyond the mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of article 6 if occurring within a contracting state itself (Janovic v Prosecutor General’s Office, Lithuania [2011] EWHC 710 (Admin)). Mr Debreceni’s complaints can be dealt with by the Hungarian courts. This ground of appeal fails.

The refusal to allow an adjournment

Mr Gill QC submitted that the Judge erred in refusing to allow an adjournment for Mr Debreceni to obtain legal aid and that the judge was wrong to have proceeded with the extradition hearing. He submits that Mr Debreceni was not to blame for the problems which he encountered in obtaining legal aid and the problems and delays were the result of the UK’s failure to put in place an effective system of speedy resolution of extradition which properly respected the right to liberty and the right to a fair hearing with legal representation. In short, he submits that the current system of legal aid operated by the Legal Services Commission is too slow and cumbersome and, in fact, defeats the aims of the Framework Decision.

He further submitted that interests of justice required an adjournment in any event to allow further inquiries to be made regarding Mr Debreceni’s concerns that he might be subject to retribution if he returned to Hungary. In particular, he submits that an opportunity should have been given for further inquiries to be made of two police officers who might be able to support his case as to the risks he was running if he was returned.

We have expressed our views on the proper system that should have been developed at paragraphs 30 to 52. However, we have considered the fresh evidence adduced. This ground of appeal can therefore no longer be sustained.

The independence of the Hungarian court

Mr Gill QC finally submitted that, without “further clarity as to the nature of the respondent’s office and position”, Mr Debreceni does not accept that the respondent cannot be considered an independent judicial authority. He submitted that the Respondent appears to be an officer within a penal enforcement group and may be an officer acting on behalf of the prison concerned.

The burden lies on Mr Debreceni to make good this submission and these assertions. It is well known that there have been serious concerns raised in relation to the attempts by the Executive in Hungary to exert a greater degree of control over the judiciary and to constrict its independence. In its Opinion of 19 March 2012 (Opinion 663/2012), the Venice Commission concluded in respect of the reforms enacted by the Executive in Hungary at paragraph 120:

“that the essential elements of the reform – if they remained unchanged – not only contradict European standards for the organisation of the judiciary, especially its independence, but are also problematic as concerns the right to a fair trial under Article 6 ECHR.”

However, although the Venice Commission has expressed these concerns, we have been pointed to no evidence which supports a case that the court is not an independent judicial authority. This ground of appeal cannot, therefore, be sustained.

In conclusion, whilst the judge expressed his decision in somewhat brief terms, on analysis, in our judgment, he was right to order the extradition of Mr Debreceni at the time and in the manner that he did. This appeal is, therefore, also dismissed.