Debiec v District Court of Piotrkow Trybunalski (Poland)

This is an appeal with the leave of Langstaff J. against the decision of District Judge Bayne dated 5^th July 2016 in which she ordered the Appellant's extradition to Poland. The principal ground of appeal that is pursued is that the judge was wrong to hold that extradition would not be disproportionate and would not violate the Appellant's rights under Article 8 of the European Convention on Human Rights (“the ECHR”). There was another ground of appeal for which leave was given by Green J. on 2^nd May 2017 concerning specialty. However, that has fallen by the wayside as a consequence of the decision of this court in Kortas v The Regional Court in Bydgoszcz [2017] EWHC 356 (Admin) and so I say no more about it.

Miss Townshend on behalf of the Appellant seeks leave to amend the grounds of appeal to add a further ground of appeal and for permission to appeal, that ground of appeal being that extradition is barred by s 25 of the Extradition Act 2003 ("the EA 2003") because of medical evidence received yesterday from the Appellant's treating psychiatrist that his mental state is presently such that he is at high risk of suicide, and special arrangements for his transport to Poland will need to be made in the event that the appeal is dismissed. I give leave to amend and I grant permission to appeal. I am grateful to both counsel for their helpful written and oral submissions.

The Appellant's return is sought as a convicted person in respect of two European Arrest Warrants. The first European Arrest Warrant ("EAW 1") was issued on 26^th May 2015 and certified by the National Crime Agency on 23^rd September 2015. This is a conviction European Arrest Warrant which relates to (a) case IIK383/04, an aggregate judgment for drugs offences in 2002 involving amphetamine, cannabis and ecstasy for which the Appellant was sentenced to two years and 10 months' imprisonment, and (b) a case IIK1002/03 involving offences of fraud in 2003 and 2003 for which he was sentenced to two years' imprisonment suspended conditionally for five years. That suspended sentence was activated when the Appellant failed to comply with the relevant conditions. In relation to both cases he is a fugitive having been present in case III K1002/03 and absent for the other case, was notified of the date and time of his trial.

The second EAW, EAW 2 was issued on 19^th October 2015 and certified by the National Crime Agency on 8^th December 2015. It is also a conviction warrant, this time relating to the supply of not less than 120g of amphetamine between July 2003 and September 2003. He was sentenced to 12 months' imprisonment for that offence. Case IIK383/04 involves two sub-cases which were aggregated together. One of these sub-cases IIK422/02 involved 2 counts: the supply of amphetamines and cannabis in one count, and the supply of amphetamines in another count. However, in respect of both offences the warrant states that "at the time of the commission of the act charged he was incapable of recognising its significance and of controlling his conduct because of his mental disorders." Consequently, the district judge concluded that in respect of this alleged conduct it did not amount to an extradition offence as required by s10 of the EA 2003 because the Appellant lacked the necessary mens rea and so the requirement for dual criminality was not satisfied. Accordingly, she discharged the Appellant in respect of these offences but ordered extradition in relation to the other offences.

As well as the s 10 argument which I have mentioned, the Appellant resisted extradition before the district judge on the grounds that it would violate his rights under Article 8 of the ECHR and thus that extradition was barred by s 21 of the EA 2003. The evidence before the district judge was as follows. The court had before it information in the form of a request for further information which revealed that the reason for the delay between the dates of the offences and the issuing of the European Arrest Warrants is that the judicial authorities were unaware until 2014 or thereabouts that the Appellant was living in the UK. It also confirmed that he left the jurisdiction without the permission of the court and that he therefore was a fugitive.

The defendant, now the Appellant, gave evidence before the judge and he adopted his proof of evidence. He accepted that he was present when he was sentenced to two years' imprisonment in February 2004 but he said his sentence was suspended because the court was satisfied he was attempting to deal with his drug addiction which he then had. He also accepted that he pleaded guilty to the offence in the second European Arrest Warrant because he was told he would receive a lesser sentence if he did so. He maintained that he complied with the conditions attached to the suspended sentence by addressing his drug addiction and maintaining contact with his probation officer. He said in evidence that when he was sentenced to immediate custody in respect of the offence in the EAW 2 he "panicked" because he knew he would be placed in an environment where he might relapse into drugs, and so it was, he said, that he decided to leave Poland in November of 2004.

He said he was not present when the two years five months’ sentence was imposed in December 2004 but he did know about the proceedings. He told the judge that he had worked ever since he arrived in the United Kingdom. He told her that he had lived openly in this country, and I have seen documents confirming that he is employed as a concierge by Harrods Estates and I have also seen evidence of National Insurance contributions and the like and other documents that show that he was living openly here in the United Kingdom. And, he said, and this is a fact, he has had no convictions in the years since he has been in the United Kingdom. He also told the judge that he had remained drug free since leaving Poland. He was joined by his partner in 2005 and both of them have lived together ever since, and she works as well.

The judge considered the Article 8 issue at para 38 and following in her judgment. Criticism is made in the Appellant’s Skeleton Argument that the judge did not adopt the Celinski checklist approach by listing all the factors in favour of extradition and then all the factors again against, and then making a decision (Polish Judicial Authorities v. Celinski [2016] 1 WLR 551). I do not accept that that criticism is entirely fair. The judge did first identify the relevant factors in favour of extradition and those against and she reached a reasoned conclusion and it is plain why she reached the conclusion that she did. In favour of extradition she noted that the court had to weigh in the balance the rights of the defendant under Article 8 and also the substantial public interest that exists in a lawful extradition process. She noted that it had been held in the relevant cases – including those which I will mention shortly – that it is of great importance that the United Kingdom honours its treaty obligations, and that those seeking to escape punishment for criminal behaviour in the jurisdiction of other foreign states do not find an unwarranted safe haven in the United Kingdom. I would also add there is particular resonance to that public policy consideration in relation to the EU Framework Decision which established the European arrest warrant scheme of surrender within the EU. The Framework Decision is not a treaty, rather, it is a piece of EU legislation, but it arises out of the fact that there is free movement of persons within the EU, and as a quid pro quo for that right there has to be a speedy and simple mechanism to ensure that criminals or suspected criminals in one EU member state are swiftly and easily returned to another member state for trial or imprisonment. The EAW Framework Decision was drafted and implemented in order to facilitate that very desirable public policy goal which this court needs to have well in in mind in its approach to Article 8.

The judge recognised that each case has to be considered on a fact specific basis and that there have to be "strong counterbalancing factors" before extradition can be considered to be disproportionate. She noted that the offences in question in this case were quite old, being committed between 1999 and September 2003. She also noted that there was no record of any criminal offending on the part of the defendant in Poland or in the United Kingdom since those offences were committed. She concluded, in my view rightly, that the judicial authority had not been guilty in this case of culpable delay and although Miss Townshend sought to erect an argument that there had been culpable delay, I note in the case of Kortas this court, presided over by the now Lord Chief Justice, noticed specifically that in EAW cases it is not necessary for the requesting member state to give an account of itself and to give an account of what has been going on between the date of the offending and the date of the issue of the EAW. I would diffidently and respectfully express my agreement with that proposition, especially in a case such as this where the Appellant is a fugitive.

Going back to the judge's judgment, she noted, however, that the length of time that had passed is a relevant consideration to be taken account of in the public interest. That is also something which is reflected in the decision in Kortas. She said there was no evidence "to gainsay" the defendant's assertion that he had set about addressing the issues that he had had with drug addiction and she also noted again that there had been no further offending. She said at para 49: "He is now aged 35 years and he has successfully rehabilitated himself. He is to be given great credit for this."

However, she said, he was convicted of drug supply offences which she said were serious, as indeed they are, and she noted that he deliberately left Poland to avoid serving his prison sentences. At para 53 she said: "The decision in this case is a finely balanced one." But she went on to conclude that extradition would not be disproportionate and therefore would not violate Article 8. She said at para 58:

That was how matters stood in July 2016 when the district judge gave her decision. However, unfortunately, shortly after that the Appellant's mental health began to decline and this has resulted in an application on behalf of the Appellant to adduce fresh evidence pursuant to the Fenyvesi principles in the form of various medical reports about him, to which I will turn shortly. The application is not opposed by Miss Iveson on behalf of the issuing judicial authority, who accepts that this material was not available below because the Appellant’s mental health only began to decline after judgment was given. There are also not less than four addendum proofs of evidence from the Appellant. Of course, these have not been tested in cross-examination and I am appropriately cautious about accepting their contents at face value. Nevertheless, I do admit that material together with the medical evidence which has come to light since the hearing below, which has been supplemented today by further material from the doctor who is treating the Appellant.

The principal medical evidence consists of a report from Dr Dhumad, a consultant psychiatrist, dated 28^th November 2016, an initial assessment by Dr Conway who has become the Appellant's treating psychiatrist, dated 22^nd September, a number of follow up care plan letters and reviews by Dr Conway, and a letter sent by Dr Conway to the court liaison mental health nurse at Westminster Magistrates' Court which was forwarded to me directly yesterday, on 11^th October. There is also a medical report that I saw for the first time today, put in the bundle by Miss Iveson, prepared by Polish psychiatrists for Polish court proceedings, which I will come to shortly.

In considering Dr Conway's evidence, I have borne in mind that she is not an expert witness who owes an expert’s duties to the court; she is the Appellant's treating doctor and her duty is to him, and her primary concern is to promote what she believes is in his best medical interests. The position with regard to the Appellant's mental health is as follows. In his addendum proof of evidence of 19^th July he said that the extradition order had made his mental health deteriorate significantly. He said that he had been a good student as a young man in Poland and had been accepted into a military academy. When he was 19 (he is now 36, so about 17 or 18 years ago) he had a 15-year-old girlfriend. One day when they were crossing the road returning home she was hit by a speeding car which was overtaking dangerously at the crossing, and she was killed instantly in front of him. That tragic event was what led him to self-medicate by taking drugs, and to the offending for which his extradition is now sought. He describes symptoms consistent with post traumatic stress disorder. He frankly admitted running away to England to avoid prison, and he describes how his arrest for these extradition proceedings in February 2016 retriggered some of these symptoms and he was referred by his GP to mental health services last year in 2016.

I should say that I am acutely conscious that the psychiatric evidence, as is generally the case, is based ultimately on what the Appellant has told the psychiatrist happened to him. However, there has been no challenge to the fact of the accident. I imagine that is something that could have been readily checked by the Polish authorities if they wished to do so. I am therefore satisfied that substantially underlying the Appellant's current mental illness, as I shall explain in a moment, is the accident he witnessed as a teenager and the death of his young girlfriend in front of him.

The Appellant's initial mental health assessment in the bundle at p14 by Dr Conway on 22^nd September concluded that he was experiencing a severe depressive reaction to his current situation and that he was becoming psychotic. She recommended mirtazapine, an antidepressant, and risperidone, an antipsychotic. At a review in October 2016 Dr Conway found that there had been an excellent response to the mirtazapine but that the Appellant had not tolerated the risperidone, which accordingly was stopped. The psychiatric report from Dr Dhumad (who I note has a particular interest in and expertise in post traumatic stress disorder) concluded that as at November 2016 the Appellant suffered from a moderate depressive episode with somatic symptoms and also post traumatic stress disorder. He concluded that the deterioration in mental health had been triggered by a number of factors including fear of extradition, fear of separation from his partner, and fear that if returned he will turn back to drugs and criminality in Poland. The doctor's conclusion was that if he was extradited his mental health will be likely to worsen. The doctor recommended the continuation of the antidepressant medication and also therapy in the form of cognitive behavioural therapy. A review in February 2017 was also positive in that it recorded that the Appellant had stopped having suicidal thoughts.

In a letter dated 16^th March to the Appellant's solicitors, Dr Conway, the Appellant's treating psychiatrist, recounted the history, the diagnosis, re-asserting her diagnosis of severe depression. I note the difference between her and Dr Dhumad as to severity and what had been tried by way of drug treatment. She said this at para.3 of her letter:

Dr Conway found in a review in April that there had been a setback and "that his post traumatic stress symptoms have returned with a vengeance." I interpolate at this point in the narrative to say that earlier this year there was a hearing before a Polish court to determine whether the Appellant's sentences should be postponed because of his mental health issues. His unsigned addendum proof of 15^th August recounts that Polish doctors, having considered the English medical report, concluded that he was suffering from an adjustment disorder caused by the extradition proceedings and that he could be treated in prison in Poland successfully. I have just today been supplied with that report from the Polish psychiatrists in the bundle at p144. It seems clear that this was a court ordered psychiatric report in which Polish psychiatrists were asked to review Dr Dhumad's report and the evidence from Dr Conway and express an opinion on what they believed Mr Debiec is suffering from and also whether any treatments that he might need for any disorder they found him to have had would be available in a Polish prison. They said:

Their opinion is this:

As I observed to Ms Iveson during argument, whilst meaning no disrespect to the Polish psychiatrists it must obviously be the case, and I think Ms Iveson accepted this, that their opinions must be given significantly lesser weight than the opinions of the doctors who have actually examined Mr Debiec and the doctor, Dr Conway, who has been treating him for something over a year now. Psychiatry as a branch of medicine proceeds on the basis of face-to-face interviews generally, although it is possible for psychiatrists to give opinions based on written material only, rather on a face-to-face interview with a patient. But it seems to me self evident that such opinions should be given lesser weight than the opinions of the actual treating doctors who have had the opportunity of observing their patient over a significant period of time.

I understand the position to be, so far as the Polish proceedings are concerned, that earlier this week the Polish court rejected the Appellant's application in the event he was to return to Poland for a postponement of his sentence and that subject to any appeal, therefore, if the Appellant is returned to Poland he will go directly to prison.

On 18^th September of this year, in response to a request from the Appellant's solicitors, Dr Conway summarised the position. She confirmed the diagnosis of post-traumatic stress disorder and generalised anxiety disorder and severe depressive disorder with psychotic symptoms. She said the Appellant was doing well but he had recently lapsed into a worsening anxiety, and the psychotic symptoms of his depression, persecutory feelings, and hallucinations have returned. She said at para 3:

Earlier in her reviews and report she took issue with the conclusion of the Polish psychiatrists that Mr Debiec was suffering from an adjustment disorder and she maintained her diagnosis.

So I come then to the letter which I received directly (somewhat unusually) from Dr Conway yesterday. I understand what occurred was that earlier this week Dr Conway saw the Appellant as part of her treatment regime of him and so concerned was she by his mental state, and so anxious was she about the risks of suicide, that she took it upon herself, and I do not mean that that in any critical way, to alert the community mental health nurse at Westminster Magistrates' Court of her concerns. Dr Conway believed, understandably, that Westminster Magistrates' Court would be in charge of the process of returning Mr Debiec to Poland in the event that the appeal were to be dismissed. I am grateful to those in the court administration who ensured the letter reached me.

Dr Conway said this in the letter dated 10^th October:

She goes on to say at para 6, "If Mr Debiec is unsuccessful in his legal proceedings on 12^th October, then I think it is essential that he is admitted to hospital as his safety can no longer be guaranteed."

That was followed by a letter to Mr Debiec's solicitors from Dr Conway of 11^th October, that is, yesterday. She says:

She goes on to explain how extradition would impact on the treatment and says, at the bottom of the first paragraph:

She goes on in para 2 to explain that "because of his medication there would be particular difficulties in managing him on a deportation flight to Poland".

She said:

She said:

She also notes that Benzodiazepine's carries a risk of disinhibiting of behaviour. She goes on to say that if it were to be used in an emergency situation there would have to be facilities for resuscitation immediately available on the plane ‘otherwise their use is contraindicated.’ She says at para. 3:

This appeal is brought under s 26 of the EA 2003. Section 27(4) provides that where fresh evidence is relied upon, as it is in this case, I can only allow an appeal if:

Section 21 of the EA 2003 requires me to decide whether extradition will be compatible with the Appellant's Convention rights. The principles applicable in relation to Article 8 are now well established: see Norris v Government of the United States of America (No2) [2010] 2 AC 487, HH v Deputy Prosecutor of the Italian Republic [2013] 1 AC 338 and Celinski v Polish Judicial Authorities [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 but what the court generally is looking for is some degree of hardship which is well out of the ordinary in extradition cases. Familial distress inherent in enforced separation and financial hardship by removal of a breadwinner are almost inevitable in all cases of extradition and are generally are not enough in themselves to be sufficient. 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. Delays since commission of the crime may diminish weight to be attached to the public interest and increase the impact on private life.

Ms Iveson on behalf of the Polish judicial authority correctly accepts that I have to undertake the Article 8 balancing exercise myself based on the whole of the material that is now available, rather than consider whether the district judge was "wrong".

Section 25 provides:

For guidance on the application of s 91 (which is the equivalent of s 25 in Part 2 cases), see Dewani v Government of South Africa [2012] EWHC 842 (Admin).

Miss Townshend argues that the medical evidence tips the balance and that in light of the Appellant's mental condition extradition would now be disproportionate. She points to the evidence that he would suffer serious and possibly irreversible deterioration in his health in the event he was to be returned to Poland. She also argues that the evidence crosses the threshold of oppression and thus that extradition is barred by s 25.

Ms Iveson on behalf of the Respondent submits that it is clear that the Appellant can and will receive treatment in prison in Poland and she relies on the report from the Polish psychiatrists to that effect. She submits that Dr Conway has gone too far in some of her reports, where she makes statements to the effect that no treatment would be available to the Appellant in Poland. Hence Ms Iveson says Article 8 would not be violated by extradition, ill though the Appellant might be at present, and that she says extradition is not barred by s 25. She says that as far as delay is concerned, the Appellant was responsible for that and so cannot rely upon it.

I have to undertake the Celinski exercise of considering separately the factors for and against extradition and then reach a reasoned conclusion. The factors in favour of extradition in my judgment are as follows. In this case Poland is seeking the Appellant's return for serious criminal offences, as any offences relating to drugs are. As I have already noted there is a particularly strong public interest in ensuring that the UK fulfils its EU law obligations so far as the prompt and efficient working of the EAW Framework Decision is concerned, that mechanism being designed to ensure the speedy return of alleged and convicted criminals within the EU. Also, the Appellant admits he fled Poland to avoid prison and that as things stand today he is liable immediately to be imprisoned in Poland for a significant period of time. The United Kingdom must not be allowed to become a safe haven for those who take advantage of suspended sentences in particular, by fleeing to avoid prison.

On the other hand, the fact is that the Appellant was a young man when he committed these offences and he has led a blameless life in the United Kingdom since arriving here in 2004, as he lived and worked openly and paid his taxes and was able to shake off his drug addiction. That is a proper factor to take into account in assessing the public interest. Has the Appellant shown the requisite level of hardship so that extradition will be disproportionate in his particular circumstances? In my judgment he has. It is plain on the evidence that he is currently serious mentally ill and receiving treatment, the interruption of which by extradition would place his recovery in jeopardy and would or at least might result in a marked deterioration which might be permanent. This is Dr Conway's clear conclusion that she has expressed at least twice in her recent evidence.

That mental illness in significant part arises from the tragic accident which the Appellant witnessed when he was 19, to which I have referred. His illness, coupled with the risk of deterioration if he were to be extradited, it seems to me, on the particular facts of his case, is sufficient to establish that extradition would violate Article 8. So far as suicide is concerned, I have well in mind the case law to the effect that only where the defendant would have no choice but to commit suicide if extradition were ordered can suicide raise a bar to extradition. I do not decide the case on the recent information about the Appellant's threat to commit suicide if extradition is ordered per se, but I do take into account Dr Conway's conclusion that only hospitalisation could guard against that risk, and the steps she says would be necessary if he were to be put on the plane. These, it seems to me, are an indicator of the severity of his illness and the need for his treatment to continue. Indeed, the question can be rhetorically posed: If someone is so ill as to need special respiratory protection and special emergency measures to be in place in order to be flown abroad, can they be well enough to fly at all?

The judge regarded the case as finely balanced on the material before her. Had she had the material which I have seen I have no doubt that she would not have concluded as she did that the only hardship in this case would be emotional and financial. In my judgment, she would have discharged the Appellant. I therefore allow this appeal. In my judgment, to extradite him in his current state of health would violate Article 8 of the ECHR and his extradition is currently barred by s 25 because of his mental illness. I therefore quash the order for extradition on both EAWs.

I end with this observation. In Kortas the court emphasised at para 37 that generally in Article 8 cases only HH, Norris and Celinski ought to be cited. Cases on Article 8 are inevitably intensely fact specific. My decision in this case therefore sets no precedent. It is simply a determination that in relation to this Appellant, on the evidence that I have considered, the Article 8 and s 25 bars are currently made out. Should the Appellant recover, as I hope that he will, then it will be for the Polish judicial authorities to decide whether to commence fresh extradition proceedings.