Nowocien v District Court In Poznan, Poland

This is an appeal against an extradition order dated 18^th August 2016 made by District Judge Blake at the Westminster Magistrates’ Court. The appeal raises issues about: (1) whether the Appellant was a fugitive; (2) whether the extradition of the Appellant would be unjust or oppressive either by reason of the passage of time pursuant to section 14 of the Extradition Act 2003 (“the 2003 Act”); (3) whether the extradition of the Appellant would be unjust or oppressive by reason of the mental and physical condition of the Appellant pursuant to section 25 of the 2003 Act; and (4) whether the extradition of the Appellant would be disproportionate or an impermissible interference with the Appellant’s rights under article 8 of the European Convention on Human Rights (“ECHR”).

The Appellant is accused of committing in Poland an offence between May 1995 and May 1997 which involved her in drawing up fictitious invoices for the sale of medical equipment when acting on behalf of a company which she had established. It appears that the company was factoring invoices because of delays in payment by the hospitals for the medical equipment supplied by the company. The delay had caused cash flow difficulties for the company. It is alleged that fictitious invoices were created so that the company would receive further sums from the bank enabling the company to survive. The value of the fraud is alleged to be substantial, involving at least £1 million. The Appellant’s case is that she was unaware of the fraud, which was perpetrated by the company’s finance director as he was making efforts to keep the company going despite cash flow difficulties. The Appellant said that she discovered the fraud about 3 months before she was asked about it by the bank, and was trying to resolve matters. She was then asked about it by the bank, and says that she was open and honest about what she knew.

The Appellant was arrested in Poland and remanded in custody for a period of about 9 months between 1997 and 1998. The Appellant said that she was questioned during this time but was not then represented by a lawyer. The Appellant had pre-existing medical conditions (in particular hypertension, cardiac problems and thyroid problems). The Appellant appears to have suffered some form of relapse in prison. The Appellant suggested her treatment in prison had been responsible for falling into a coma and what she described as “clinical death”, necessitating treatment in hospital.

As a result of this the Appellant was released from custody on 27^th May 1998 and taken to hospital. The Appellant remained on conditional bail. After release from hospital it appears that the Appellant attended an outpatient department in Poznan once a month at direction of the Court from 1998 so that her fitness for trial could be monitored.

Thereafter the Appellant was treated by a psychiatrist and was admitted to hospital on a number of occasions, and some of the admissions followed suicide attempts. Criminal proceedings against two co-accused (including the finance director) continued. The co-accused were convicted on 27^th March 2001 and sentenced to suspended sentences of imprisonment, although the evidence does not disclose what terms of pre-trial custody had been served by them.

The proceedings against the Appellant appear to have been delayed because of reports from psychiatrists to the Court in Poland showing that the Appellant was not then fit to be tried. In the meantime the Appellant was unable to obtain employment in Poland. It appears that this was as a result of the combined effect of her medical conditions and the Court proceedings. The Appellant left Poland in November 2012 and came to the United Kingdom to get employment. At this stage the Appellant must have had some recovery in her health. This is because she felt well enough to come to the UK to obtain work and because in a psychiatric assessment dated 3^rd January 2013 addressed to the Court in Poland (which has not been produced in these proceedings) the psychiatrist declared that the Appellant was fit for trial in Poland. It appears that the psychiatric assessment must have been based on assessments carried out before the Appellant had left Poland for the UK.

On 12^th March 2013 the Court in Poland ordered that the Appellant be arrested and brought to be Court. When the Appellant could not be located an arrest warrant was issued in April 2013.

It is common ground that the Appellant was entitled to leave Poland when she was waiting for trial, but further information from the Judicial Authority shows that the Appellant was under an obligation to inform the Court of any change of address. The Appellant contended that she was not aware of an obligation to inform the Court of any change of address. The Appellant also contended that she understood that the proceedings had become time barred after 15 years and that she was entitled to leave. It is common ground before me that the proceedings are not time barred until a later date.

After arrival in the UK the Appellant, who was born on 4^th April 1961, obtained employment as a carer, and obtained certificates showing that she had not been convicted of any criminal offence. The certificates do not appear to have covered any outstanding criminal allegations. The Appellant left her youngest son in Poland, living with her mother. The Appellant has provided financial support for her mother and her youngest son’s education who is in his final year at university.

After issue of the European arrest warrant the Appellant was located in this jurisdiction. The Appellant had been working for 7 days a week as a carer. She lives with her partner, who provides support. The Appellant suffered a stroke in 2015 and was an inpatient for a period of time before leaving Reading hospital and returning to work. The Appellant is on medication for depression and anxiety, and remains under supervision in respect of her stroke. After arrest the Appellant suffered a suspected heart attack and high blood pressure and required hospital treatment. The Appellant’s current medical problems are type 2 diabetes, high blood pressure, thyroid problems, heart problems, depression and anxiety, and she takes medication for these problems, details of which are contained in the evidence. The medical evidence shows that the Appellant needs to continue taking this medication. The Appellant has been advised to avoid stress, and she has been unable to take control of her health because of the combined effect of her problems.

The Appellant’s GP has, in a letter dated 28^th April 2016, referred to threats made by the Appellant that she would not wish to live if extradited. A discharge summary from the Crisis Resolution and Home Treatment team dated 22^nd April 2016 recorded that the Appellant had denied an intent to end her life but said that she would do if she had to go back to Poland. The risk of suicide was low, but would escalate if the Appellant was informed that she had to go to Poland. A consultant psychiatrist in a letter dated 1 July 2016 recorded symptoms suffered by the Appellant, including her report that she was hearing voices telling her to kill herself. The Appellant was assessed as a low risk of suicide, but risks would increase if the hearing went against her.

District Judge Blake had a full hearing on 21^st July 2016 at which Ms Bostock represented the Respondent and Ms Westcott (then acting pro bono because the Appellant’s partner’s means meant that the Appellant did not then qualify for legal aid) appeared for the Appellant. The Appellant gave evidence. This included evidence of her belief that the proceedings were time barred, which belief was based on conversations with her lawyer and her mother. District Judge Blake reserved judgment and gave a full judgment dated 18^th August 2016 ordering the extradition of the Appellant.

So far as is material District Judge Blake questioned whether the Appellant had a genuine belief that the criminal proceedings were time barred, noting that there was no evidence apart from her assertions that this was advice of her lawyer, noting that the Appellant could have found out the correct position. District Judge Blake noted that the Appellant had left Poland in breach of the requirement to keep the Court informed of her address, and found that the Appellant was a fugitive, meaning that she could not take advantage of the period from 2013 to 2016 for the purposes of section 14 of the 2003 Act. When considering the issue of oppression District Judge Blake stated “I accept the evidence that it will affect both her physical and mental health and the effect of extradition of the [Appellant] will go beyond causing mere hardship”.

When undertaking a balance of article 8 ECHR considerations District Judge Blake found that factors in favour of ordering extradition were: the “strong public interest in discouraging persons seeing the UK as a state willing to accept fugitives from justice” and that the Appellant “came to the UK with no confirmation that the proceedings were time barred under the statute of limitations”. Among the factors militating against extradition were “a risk that the [Appellant’s] mental and physical health will deteriorate if she is ordered to return to Poland” and the Appellant had “some belief that the proceedings were “time barred” when she left Poland”. When undertaking the balance District Judge Blake said that “there was no evidence that she was ever told that the statute of limitations applied, although there was some wishful thinking by her in this regard”.

There is now available further evidence and medical evidence relating to the Appellant’s condition since the making of the extradition order. It is common ground that this evidence could not be adduced at the hearing, because it post-dates the hearing, and that it is relevant to the grounds of appeal. It is also common ground that the evidence should be admitted and I do so. It includes a further witness statement from the Appellant, stating that she has heard voices telling her to harm herself and says that she has attempted suicide in September and December 2016. The fresh evidence also includes a letter from the consultant psychiatrist dated 5^th December 2016. The letter refers to the Appellant being supported by the Crisis Team in September and October 2016 when her mood was low. The Appellant was reported in the letter as presenting with “a low risk of suicide, self harm and harm to others”. However in the medium term she presented with a “moderate risk of suicide particularly if the court decision goes against her as she does not want to return to Poland”. It was noted that protective factors for the Appellant were her partner and children.

There was also a risk assessment dated 7^th October 2016 from the Crisis Resolution and Home Treatment Team. This did not mention suicide attempts and assessed the risk posed by the Appellant as “low”.

Section 14 of the 2003 act provides that “a person’s extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have … committed the extradition offence”.

If the requested person is responsible for the delay she is not entitled to rely upon that passage of time to suggest that extradition would be oppressive or unjust, save in exceptional circumstances see Kakis v Government of Cyprus [1978] 1 WLR 779 at 783 where it was noted that “delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot … be relied upon as a ground for holding it to be either unjust or oppressive to return him”. It is for this reason that it has become relevant to determine in extradition proceedings whether the requested person is a fugitive. The term “fugitive” is not a statutory term. A court is not entitled to find that a person is a fugitive unless it is sure of the fact. The issue is whether the Appellant was responsible for the delay on which she is seeking to rely by fleeing the country or the like because being unlawfully at large is a state of affairs, see Wisniewski and others v Poland [2016] EWHC 386 (Admin); [2016] 1 WLR 3750. If a person knowingly breaches terms of a suspended sentence, or conditions of bail, causing delay, then that person will be responsible for the delay.

The issue of what is “unjust” is primarily directed to the issue of the fairness of the trial. The issue of what is “oppressive” is primarily directed to the issue of the requested person’s personal circumstances, but there are inevitably areas of overlap. “The test of oppression will not easily be satisfied: hardship, a comparatively commonplace consequence of an order for extradition, is not enough”, see Gomes v Republic of Trinidad and Tobago [2009] UKHL 21; [2009] 1 WLR 1038 at paragraph 31.

The first issue is whether the District Judge was entitled to make a finding, so that he was sure, that the Appellant was a fugitive. It is submitted that the District Judge’s finding that the Appellant was a fugitive could not stand with his apparent acceptance that the Appellant “had some belief that the proceedings were time barred”, particularly when account is taken of the Appellant’s psychiatric issues.

In my judgment the District Judge was entitled to make the finding so that he was sure that the Appellant was a fugitive. This was because of his findings, based on the evidence, that the Appellant had not confirmed with her lawyer the issue about time bar, and had left Poland in breach of the requirement, that the evidence showed she had been told about, to notify the Court of any change of address. The fact that the District Judge accepted that the Appellant “had some belief” that the proceedings were time barred did not prevent her from being responsible for the delay caused by leaving Poland without notifying the Court of her address. This is because if the Appellant had complied with her obligations, whatever her belief, there would not have been the delays in locating her and seeking her extradition.

Further there is nothing exceptional about this case to suggest that I ought, in any event, to take account of the delay between 2013 and 2016 even if the Appellant was responsible for that delay. This is because the Appellant had been told about the condition to notify the Court of a change of address, and has caused the delay about which she now complains. It might also be noted that very little turns on this issue. This is because it concerns only the period between 2013 and 2016 and not the much longer period between commission of the alleged offence from May 1995 to May 1997 and 2013, and because the whole of the period from 1997 to 2016 is relevant for the article 8 ECHR assessment.

In my judgment the District Judge was right to find that it would not be either unjust or oppressive by reason of the passage of time between May 1995 and 2013 to return the Appellant. The District Judge did not come to this conclusion in a few bland lines, as suggested, but on a careful analysis of the evidence. Although the bank is now no longer trading, there is no evidence that the Appellant would be unable to defend herself properly in the proceedings, and advance her case that she had no involvement in the fictitious invoices. The delays in the Court proceedings have been caused by a proper concern by the Courts in Poland to ensure that the Appellant was fit to be tried. There is nothing to suggest that if there is any specific prejudice caused by delay, it will not be capable of being dealt with fairly in the course of the criminal proceedings in Poland.

Further, although the District Judge noted that the effect of extradition would go beyond mere hardship, the District Judge did not consider that it would be oppressive. A finding of oppression does not follow from the fact that the effect of extradition will go beyond mere hardship, and the District Judge was entitled to have confidence that the Polish health authorities would provide appropriate health care, particularly given the evidence of the care taken of the Appellant following her release from imprisonment in 1997. There is nothing in the updated medical evidence which shows that the Appellant’s actual current conditions cannot be adequately managed in Poland, and oppression is not shown on the evidence.

Section 25 of the 2003 Act obliges the Court either to discharge the Appellant or to adjourn the extradition hearing if “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”. Some guidance on the proper approach to be taken was provided in Turner v Government of the USA [2012] EWHC 2426 (Admin). A high threshold has to be reached in order to satisfy a Court that a requested person’s physical or mental condition is such that it would be unjust or oppressive to extradite him. So far as a risk of suicide is concerned, the mental condition must be such that it removes the capacity to resist the impulse to commit suicide, this is because otherwise it will not be the mental condition which is causing the suicide but the voluntary act of the person. The risk of the person succeeding in committing suicide, notwithstanding appropriate arrangements, needs to be determined. Decided cases establish that it will ordinarily be presumed that the receiving state within the European Union will discharge responsibilities to prevent the relevant person committing suicide.

In my judgment the District Judge was entitled to find that nothing had been raised with regard to the health of the Appellant which would make it unjust or oppressive under section 25 of the 2003 Act to return the Appellant. That is because of the presumption, which the Court is required to apply, to the effect that Poland will discharge responsibilities to the Appellant and manage risks of suicide, and because there is nothing to suggest that the Appellant’s other medical conditions cannot be adequately treated and managed in Poland.

Section 21A of the 2003 Act requires the Court to determine whether the extradition of the Appellant would be proportionate and compatible with her human rights. The relevant principles have been established, see Norris v USA [2010] UKSC 9, [2010] 2 AC 487; H(H) v Deputy Prosecutor of the Italian Republic [2012] UKSC 25, [2013] 1 AC 338; and Celinksi v Poland [2015] EWHC 1274 (Admin); [2016] 1 WLR 551. Article 8 provides a right to a private and family life, which is qualified. The question is whether interference with that right is outweighed by the public interest in extradition. There is no test of exceptionality. In the balance there is a constant and weighty public interest in extradition, people should have their trials, and the UK should honour treaty obligations. Delay since commission of the crime may diminish weight to be attached to the public interest and increase the impact on private life. The question for me is whether balance struck by the District Judge was wrong.

In my judgment the District Judge was entitled to find that the interest in extradition outweighed the Appellant’s rights under article 8, and that it was proportionate to order the extradition of the Appellant. The District Judge did not take into account irrelevant factors, and his findings were properly based on the evidence. The District Judge included in his analysis both the fact that the Appellant had caused delay, which she had, and had some belief that the proceedings were time barred, which he had found on the evidence. The District Judge had summarised fairly the medical evidence in the judgment.

I have, in the light of the further evidence about the Appellant’s medical problems reviewed whether it remains proportionate to extradite the Appellant, and whether any extradition will infringe the Appellant’s article 8 rights. In my judgment the same factors remain in the balance, although the factors weighing against extradition which included the medical evidence are now updated to show the continuing psychiatric symptoms and difficulties suffered by the Claimant. That evidence does not show that the Appellant is not fit to be tried. There is no evidence to show that even with the additional stress involved in extradition, and the likely effect of that on the Appellant, she will be unfit to be tried in Poland. In my judgment the answer remains the same, namely that the public interest in extraditing the Appellant outweighs the Claimant’s important article 8 rights. The alleged offence is serious, even though it appears that the co-accused received suspended sentences of imprisonment after serving time in custody before trial. Even though the alleged offence related to events in 1995 to 1997 the delay has been caused in the main by the need to ensure that the Appellant was fit for trial. The sums involved in the offence are substantial. The relevant authorities in Poland have shown that they have taken proper steps to protect the health of the Appellant, and ensure that she is fit to be tried.

Ms Westcott made submissions to the effect that the Court might adjourn the hearing and might direct that a medical report be obtained, which might be provided to the relevant authorities, which might make it clear that the Appellant was no longer fit to be tried. I have not ordered any adjournment nor made any such direction. This is because the Appellant has the benefit of expert legal assistance. It is for the Appellant’s legal advisers to apply to adjourn if instructed to do so, and to determine what steps to take on behalf of the Appellant by way of liaison with the relevant authorities. I can see no grounds to order an adjournment of the appeal, and in these circumstances my role is to determine whether the appeal should be allowed or dismissed.

For the detailed reasons given above: I admit the fresh evidence relied on by the Appellant; I dismiss the appeal; and I have not adjourned the appeal or directed a further medical report be obtained. I am very grateful to both Ms Westcott and Ms Farrant for their helpful written and oral submissions.