Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MR JUSTICE EYRE
Between :
SEAN McDWYER | Appellant |
- and - | |
Zadar Municipal Court (CROATIA) | Respondent |
-
George Hepburne Scott (instructed by Sperrin Law) for the Applicant
Amanda Bostock (instructed by Crown Prosecution Service (Extradition Unit)) for the Respondent
Hearing date: 8th October 2025
Approved Judgment
This judgment was handed down remotely at 10.00am on 17th October 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
.............................
MR JUSTICE EYRE
Mr Justice Eyre :
On 9th March 2023 District Judge Snow ordered the Appellant’s extradition to Croatia pursuant to an accusation warrant issued by the Respondent on 1st June 2022 and certified on 22nd September 2022. The Appellant appeals that decision on two grounds pursuant to permission given by Sir Peter Lane.
First, the Appellant contends that his mental state is such that extradition would create a risk of him committing suicide and that the risk is of such a degree as to make extradition unjust or oppressive (and so precluded by section 25 of the Extradition Act 2003). The Respondent says that to the extent that the Appellant has shown that there is a risk of suicide it is of a degree which can be addressed by appropriate treatment. It says that extradition is, accordingly, not oppressive on that basis. The District Judge had some information about the Appellant’s mental health history but he did not have the benefit of the evidence which has been provided to me and there have been potentially relevant events since the hearing before the District Judge.
Second, the Appellant contends that the District Judge erred in his assessment of whether extradition amounted to a disproportionate interference with his article 8 rights. The Appellant says that the District Judge erred particularly in his approach to the effect of delay on the part of the Respondent. If proper account had been taken of that the District Judge should have concluded that extradition was a disproportionate interference with the Appellant’s article 8 rights and so precluded by section 21A of the Act. In addition, the Appellant submits that, even if extradition is not found to be oppressive for the purposes of section 25, his mental health difficulties are relevant to the issue of proportionality. On his behalf Mr Hepburne Scott says that this reinforces the argument that extradition would be a disproportionate interference with his rights. The Respondent says that such delay as there was does not assist the Appellant in the circumstances of this case. Miss Bostock accepts that the Appellant’s mental health difficulties can be relevant to the article 8 balancing exercise but submits that the weight attached to them can only be limited and that care is needed to avoid circumventing the requirements of section 25. In light of that the Respondent says that the District Judge’s assessment of the proportionality of the interference with the Appellant’s rights was unimpeachable on the material before him and that the interference remains proportionate even when account is taken of the further material.
The Appellant had been given permission for a third ground of appeal. This was a contention that it was likely that he would be detained in prison conditions in Zagreb which have been found to amount to inhuman or degrading treatment and that extradition was prohibited by reason of his article 3 right not to be subjected to such treatment. That ground has properly been abandoned in light of the evidence that the Appellant will be detained in the prison in Zadar in circumstances such that there is no suggestion that the conditions there amount to inhuman or degrading treatment.
The Factual Background to the Decision below.
The Appellant was born in December 1987. In June 2017 he attended a music festival in Croatia. On 30th June 2017 he was arrested and subsequently charged with being in possession of 29 pills of MDMA and 0.6g of cocaine with intent to supply to others. The maximum sentence for that offence under Croatian law is 12 years imprisonment. In his judgment the District Judge concluded that in England and Wales the starting point for that offence under the Sentencing Guidelines would be 3 years imprisonment. Before me, Mr Hepburne Scott accepted that categorisation of the offence although he submitted that there were potential mitigating factors which would then have to be taken into account. Against such factors it is to be noted that the Appellant has previous convictions in this country including a conviction for the cultivation of cannabis.
On 1st July 2017 the Appellant was released from custody in Croatia but was made subject to conditions preventing him from leaving the area of the court. The Appellant had told the Croatian authorities that he did not have a return ticket to the United Kingdom. Despite those restrictions and that assertion the Appellant left Croatia and returned to the United Kingdom. The Appellant accepted at the hearing below and before me that he was a fugitive.
The principal aspects of the Appellant’s personal circumstances as they were put before the District Judge were that:
He had previously had mental health difficulties which had resulted in him spending 28 days as an inpatient detained under the Mental Health Act 1983 in 2021. By the time of the hearing the Appellant’s mental health was stable and he no longer felt the need for medication.
The Appellant had previously worked as a scaffolder and subsequently as an ambulance driver but had not worked since his detention under the Mental Health Act.
The Appellant hoped to return to work in due course. However, at the time of the hearing he was the principal carer for his mother who lived close to him and who was terminally ill with cancer.
The Appellant had a son who was aged 9 at the time of the hearing below. That boy lived with his mother. The Appellant’s relationship with that lady had ended but the boy spent every weekend (from Friday evening to Sunday evening) with the Appellant.
The District Judge’s Judgment.
The District Judge set out the background which I have summarized above and identified the issue in the case as being whether extradition would be a disproportionate interference with the Appellant’s article 8 rights.
In his factual findings the District Judge noted that the Appellant was a fugitive. He added that he was satisfied that the “primary fault” for the delay between the Respondent learning in November 2017 that the Appellant was a fugitive and the issue of the warrant on 1st June 2022 lay with the Appellant. This was by reason of the Appellant’s departure from Croatia in breach of the prohibitions on him and knowing that he faced prosecution.
The District Judge noted the Appellant’s relationship with his son but also noted that the Appellant’s ex-partner was not dependent on him financially and that if the Appellant were to be extradited his son would remain with that boy’s mother at the weekends. The District Judge also noted the Appellant’s care for his mother. He concluded that if there were to be extradition the Appellant’s siblings would care for their mother. Their care would not be as good as that provided by the Appellant but the District Judge was “satisfied that it will be adequate”. The District Judge accepted that extradition of the Appellant would be “extremely distressing” for his mother. Finally, the District Judge noted that the Appellant had previously had mental health difficulties but was well at the time of the hearing.
Against that background the District Judge identified the factors for and against extradition as follows:
“ Factors in favour of extradition
[36] “The following factors weigh in favour of extradition: a. There is a strong public interest in the UK honouring its international extradition obligations.
b. There is a strong public interest in discouraging persons seeing the UK as a state willing to accept fugitives from justice.
c. Decisions of the issuing judicial authority should be accorded a proper degree of confidence and respect.
d. The independence of prosecutorial decisions must be borne in mind when considering issues under Article 8.
e. Possession of Class A drugs with the intention of selling them is a serious allegation.
f. The RP is a fugitive from justice.
Factors against extradition
[37] The following factors weigh against extradition:
a. The distress that will be caused to his son.
b. The distress that will be caused to his terminally ill mother which will be compounded by the loss of his practical support.
c. Detention will be difficult for the RP is he does not speak Croatian.
d. The allegation arose in 2017, almost 6 years ago.
e. The RP has no convictions since 2017.”
The District Judge then noted the guidance set out in Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin), [2016] 1 WLR 551. He explained that, although he gave substantial weight to the interests of the Appellant’s son and mother in each case, that weight was reduced because of the facts that the son would continue to live with his mother and the Appellant’s mother would receive support from her other children.
Then, the District Judge explained that he attached no weight to the age of the allegation because as a fugitive the Appellant was the primary cause of the delay. He noted that the allegation was a serious one and had regard to the important public interest in upholding extradition arrangements. The District Judge concluded that extradition was neither incompatible with the Appellant’s article 8 rights nor disproportionate for the purposes of section 21A of the Act. In reaching that conclusion he had regard to the seriousness of the Appellant’s alleged conduct; the likely punishment; and the Appellant’s failure to show that less coercive measures were available.
Further Material.
I have been provided with an updated witness statement from the Appellant; an unsigned witness statement from his partner, Stacey Craig; copies of his medical notes; and a psychiatric report from Dr Nuwan Galappathie dated 18th December 2023 and based on an assessment made on 27th November 2023.
There were some inconsistencies about dates in that material. In addition, it was apparent that there were some errors about dates and that the medical records were not complete. However, I am satisfied that the following is the interpretation of that material which is most favourable to the Appellant.
The Appellant was detained under the Mental Health Act for 28 days from July to August 2021. He was diagnosed as having an adjustment disorder flowing from his reaction to the loss of his job; the breakdown of his relationship; and the news of his mother’s terminal illness. In addition, the Appellant had continued to be affected by the death of his father. The Appellant had sent messages indicating that he intended to end his life. He had stood on a bridge with thoughts of jumping off it but had been prevented from doing so by thinking of his son. The Appellant told medical staff that he had previously had suicidal thoughts but had not acted on them before. The Appellant was discharged from hospital and prescribed anti-depressant medication but by the time of the hearing before the District Judge he no longer felt the need to take this.
Sadly, the Appellant’s mother died in April 2023 and the Appellant’s grief caused him to lock himself away and to cease contact with Miss Craig, with his siblings, and with his son. This appears to have lasted for some weeks.
In June 2023, the Appellant was taken to Salford General Hospital by police officers whose involvement had been sought by Miss Craig after the Appellant had expressed suicidal thoughts. He attended with Miss Craig and they were seen by mental health practitioners. The Appellant reiterated those suicidal thoughts, saying that if he did not receive in-patient treatment he would “either hang himself or jump from [a] bridge”. The Appellant was assessed as being neither psychotic nor overtly depressed and as being euthymic in mood. The hospital staff referred the Appellant for home based treatment. Initially, both the Appellant and Miss Craig were aggressive in response to the refusal of in-patient treatment but ultimately they accepted the position.
In August 2023 the Appellant sent Miss Craig a message intimating that he was going to commit suicide. Miss Craig alerted the police who attended at the Appellant’s flat and, in Miss Craig’s understanding, found him equipped with a rope. The Appellant was admitted to hospital but subsequently transferred to a halfway house. He left there and was returned to hospital by police officers. The Appellant discharged himself from hospital and was found on a bridge. Emergency workers were able to persuade the Appellant to come down from the bridge and he was returned to hospital. The Appellant was kept in hospital overnight but then discharged to the care of the home treatment team.
At the time of Dr Galappathie’s examination in November 2023 the Appellant said that he had no current thoughts of suicide or self-harm and that, although he had been mentally unwell previously, he was “much better”.
Dr Galappathie’s diagnosis was that the Appellant had previously suffered an adjustment disorder. At the time of the examination the Appellant remained worried about the prospect of extradition but he did not have any anxiety-related symptoms; his mental state was stable; and he was not being treated with medication.
Dr Galappathie expressed his opinion as to the impact which extradition would have thus:
[95] “In my opinion, if Mr McDwyer were to be extradited to Croatia, he is likely to suffer from a substantial deterioration in his mental health. It is notable that he experienced an adjustment disorder in 2021, following the death of his mother from cancer, leading to worsening depressive and anxiety-related symptoms, as well as suicidal thoughts and an attempt to hang himself. He required admission to hospital under section 2 of the Mental Health Act 1983 and stabilised following treatment with medication.
[96] While he is currently stable in mental state, there is a risk that if he experiences a further stressful life event, such as his removal to Croatia, then he would be at risk of suffering from a further deterioration in mental state. In my opinion, he would be at risk of developing worsening depressive and anxiety-related symptoms, which could lead to a depressive episode with a recurrence of suicidal thoughts.
[97] In my opinion, he is at risk of suffering from a depressive episode, potentially of moderate to severe severity if extradited. It is likely that he would experience a recurrence of low mood, difficulty sleeping, and may develop depressive symptoms, such as loss of interest in activities, tiredness, poor concentration, memory problems, despondency, and a recurrence of suicidal thoughts, placing him at high risk of self-harm and suicide.
[98] It is notable that Mr McDwyer reports previously attempting to hang himself. Following his admission to hospital, while having follow-up by the home-based treatment team, he described attempting to jump from a bridge. It is therefore foreseeable that a removal to Croatia, especially if he is removed and placed in custodial settings in Croatia, that his mental health would worsen, and he would be at risk of developing a moderate to severe episode of depression associated with suicidal thoughts, placing him at high risk of self-harm and attempted suicide. In my opinion, his perception that custodial settings in Croatia will be difficult, given that he reports that he found conditions in Croatia "diabolical" when he was placed in court cells in Croatia, where he did not eat for two days and other people did not speak English, whilst his perception of conditions in custody in Croatia may be subjective and objectively not well-founded, which is a matter for the court to determine, his fear of the conditions he believes he may face in Croatia appear genuine, and that fear is likely to trigger a deterioration in his mental health.”
At paragraph 103 Dr Galappathie noted that suitable support in Croatia including access to mental health treatment would help to mitigate any deterioration in the Appellant’s mental health before concluding:
[105] “If he is placed in detention, such as a prison, in Croatia, he is likely to find this distressing and it will worsen his mental health, given the restrictive nature of being detained, and his perception in relation to prison conditions in Croatia. If his mental health were to significantly deteriorate in Croatia, especially while in custodial settings in Croatia, to the point that he required urgent admission to hospital, which, in my opinion, is highly likely to occur, then if provisions are available to transfer him to a suitable hospital in Croatia that can meet his needs, then his mental health and risk of self-harm and suicide could be managed within a hospital setting in Croatia while he awaits trial. It is likely that a deterioration in his mental health to the point that he became unwell and required admission to hospital may render him unfit to plead and stand trial, but treatment of his condition will help him to recover, such that he will regain fitness to plead and stand trial.
[106] In my opinion, despite the measures and interventions that can be put in place to try and mitigate and manage the deterioration in his mental health that may occur on removal to Croatia, my opinion still remains that he is likely to suffer from a substantial deterioration in mental health if he is detained and removed to Croatia, given his subjective fear of removal and vulnerability to mental health problems, especially given his history of adjustment disorder and previous admission to a psychiatric hospital under section 2 of the Mental Health Act 1983, and his risk of self-harm and suicide will be difficult to safely control and manage if he was extradited to Croatia.”
Would Extradition be unjust or oppressive because of the Appellant’s Mental Condition?
Section 25 of the Act provides that a requested person is to be discharged if that person’s physical or mental condition “is such that it would be unjust or oppressive to extradite him”.
The approach to be taken to that issue in cases where it is alleged that extradition would cause a risk of the requested person committing suicide is that set out in Polish Judicial Authority v Wolkowicz [2013] EWHC 102 (Admin), [2013] 1 WLR 2402. At [8] and [9] the court approved the approach summarized thus by Aikens LJ in Turner v Government of the USA [2012] EWHC 2426 (Admin) at [28]:
“The court has to form an overall judgment on the facts of the particular case.
A high threshold has to be reached in order to satisfy the court that a requested person's physical or mental condition is such that it would be unjust or oppressive to extradite him.
The court must assess the mental condition of the person threatened with extradition and determine if it is linked to a risk of a suicide attempt if the extradition order were to be made. There has to be a "substantial risk that [the appellant] will commit suicide". The question is whether, on the evidence the risk of the appellant succeeding in committing suicide, whatever steps are taken is sufficiently great to result in a finding of oppression.
The mental condition of the person must be such that it removes his capacity to resist the impulse to commit suicide, otherwise it will not be his mental condition but his own voluntary act which puts him at risk of dying and if that is the case there is no oppression in ordering extradition.
On the evidence, is the risk that the person will succeed in committing suicide, whatever steps are taken, sufficiently great to result in a finding of oppression?
Are there appropriate arrangements in place in the prison system of the country to which extradition is sought so that those authorities can cope properly with the person's mental condition and the risk of suicide?
There is a public interest in giving effect to treaty obligations and this is an important factor to have in mind.”
At [10] the court then addressed the importance of preventative measures in these terms:
“The key issue, as is apparent from propositions (3), (5) and (6), will in almost every case be the measures that are in place to prevent any attempt at suicide by a requested person with a mental illness being successful. As Mr Watson correctly submitted on behalf of the respondent judicial authorities, it is helpful to examine the measures in relation to three stages:
i) First, the position whilst the requested person is being held in custody in the United Kingdom is clear. As Jackson LJ observed in Mazurkiewicz at paragraph 45, a person does not escape a sentence of imprisonment in the UK simply by pointing to the high risk of suicide. The court relies on the Executive branch of the state to implement measures to care for the prisoner under the arrangements explained in R v Quazi [2010] EWCA Crim 2759, [2011] Crim LR 159.
ii) Second, when the requested person is being transferred to the requesting state, arrangements are made by the Serious Organised Crime Agency (SOCA) with the authorities of the requesting state to ensure that during the transfer proper arrangements are in place to prevent suicide in appropriate cases. As Collins J helpfully mentioned in Griffin at paragraph 52, steps should ordinarily be taken in such cases to ensure that no attempt is made at suicide and proper preventative measures are in place. Medical records should be sent with the requested person and delivered to those who will have custody during transfer and in subsequent detention.
iii) Third, when the requested person is received by the requesting state in the custodial institution in which he is to be held, it will ordinarily be presumed that the receiving state within the European Union will discharge its responsibilities to prevent the requested person committing suicide, in the absence of strong evidence to the contrary: see the authorities set out at paragraphs 3-7 of Krolick and others v Several Judicial Authorities of Poland [2012] EWHC 2357 and paragraphs 10-11 of Rot. In the absence of evidence to the necessary standard that calls into question the ability of the receiving state to discharge its responsibilities or a specific matter that gives cause for concern, it should not be necessary to require any assurances from requesting states within the European Union. It will therefore ordinarily be sufficient to rely on the presumption.
It is therefore only in a very rare case that a requested person will be likely to establish that measures to prevent a substantial risk of suicide will not be effective.”
Mr Hepburne Scott accepts that a high hurdle has to be surmounted before the risk of suicide will make extradition oppressive but reminds the court that the hurdle can be surmounted and submits that it has been in this case. He points out that the Appellant has passed from the expression of suicidal thoughts to action; that there is a history of suicidal thoughts in response to stressors; that extradition will be a very significant stressor for the Appellant; and that the stress will be compounded in this case by the isolation which the Appellant would suffer in Croatia because he neither speaks nor understands Serbo-Croat.
In response Miss Bostock emphasized the height of the hurdle to be surmounted and force of the presumption set out in Wolkowicz at [10(iii)]. She submits that the Appellant has not rebutted that presumption and that there is no basis for believing that the Croatian authorities will not take effective action to address any risk of suicide on the part of the Appellant. In addition, she pointed out that although Dr Galappathie said that risk would be difficult to manage he did not say that it could not be managed.
I have to look at matters in the round giving due weight to Dr Galappathie’s expert assessment. It is apparent that the Appellant is vulnerable to stressors and that he has previously responded to stressors by expressing suicidal thoughts. I accept that extradition will cause considerable stress to the Appellant. I also do not overlook the fact that the Appellant has gone beyond the mere expression of suicidal thoughts and has moved to act upon those thoughts. Nonetheless, it is significant that on most of the occasions when the Appellant has expressed suicidal thoughts he has not acted upon them. The most serious incidents were those in August 2023. However, even then the Appellant did not in fact seek to hang himself. Instead, he messaged Miss Craig and, although he equipped himself with a rope, he did not act out his intention. Similarly, he was persuaded to leave the bridge on which he had been standing. Although Dr Galappathie says the risk of suicide will be difficult to control he does not suggest it cannot be controlled and, at paragraph 105, accepts that it could be managed by suitable hospital treatment. It is to be remembered that the risk I must consider is not of the Appellant being moved to have suicidal thoughts. Rather, it is that he will be so overborne by such thoughts that he will act upon them in circumstances where and/or with sufficient determination such that he cannot be prevented from doing so by the appropriate action which it is presumed that the relevant authorities here and in Croatia will take. In light of the matters I have just summarized the degree of risk of that being the position here is not such as to cause extradition to be oppressive.
Would Extradition be a disproportionate Interference with the Appellant’s Article 8 Rights?
I turn to the proportionality of the interference with the Appellant’s article 8 rights. The approach I have to take is that set out in Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin), [2016] 1 WLR 551 at [19] and following subject to the qualification that I have the benefit of the further evidence of the events since the hearing before the District Judge and of fuller evidence about the Appellant’s mental health difficulties.
Mr Hepburne Scott’s principal criticism of the approach which the District Judge took on the material before him was that he did not give sufficient weight to the delay between the discovery of the Appellant’s departure from Croatia and the issue of the arrest warrant. In the course of argument Mr Hepburne Scott accepted that it was not open to the Appellant to say that the delay was culpable and, for her part, Miss Bostock accepted that even where delay is not culpable it is capable of being a relevant factor in the balancing exercise addressing proportionality. The question, therefore, is whether the District Judge erred in the weight he attached to the delay. The approach which the District Judge took was unimpeachable in that respect. Not only did the responsibility for the delay lie with the Appellant but, although not minimal, the duration of the delay was far from being of the extreme duration seen in some of the cases. It is also significant that it was not suggested that there had been any material change in the Appellant’s circumstances during the relevant period: his life had continued in the same way as it had before his arrest. The District Judge attached no weight to the delay in the circumstances here. Even if an approach more favourable to the Appellant had been taken the weight to be attached to the delay could not have been more than modest and would not outweigh the considerable force of the factors standing in favour of extradition here.
Similarly, there can be no question of the District Judge being criticised for not attaching weight to the Appellant’s mental health difficulties on the evidence before him. The material before the District Judge was to the effect that there had been such difficulties in the past but that the Appellant was mentally well. In particular, there was no suggestion that extradition would give rise to a risk of suicide.
I have reflected on the further evidence available to me and which was not before the District Judge in order to consider whether the conditions in section 27(4) requiring the appeal to be allowed are satisfied. For the following reasons they are not.
There was a significant deterioration in the Appellant’s mental health following his mother’s death and there will be a risk of a further deterioration if the Appellant is extradited. I accept Miss Bostock’s submission that, although this is a factor which is relevant to the proportionality of the interference with the Appellant’s article 8 rights, it is a factor of very limited weight. That is because it is to be seen in the light of the high hurdle which is required before the mental condition of a requested person will cause extradition to be oppressive for the purposes of section 25. It is nonetheless a relevant matter and I also take account of the difficulties which the Appellant will face in being detained in a country where he does not speak the language.
The sad death of the Appellant’s mother means that the effect on her of the loss of the Appellant’s care is no longer a relevant factor.
I have already explained that to the extent that any weight is to be attached to the delay between the Appellant becoming a fugitive and the issue of the arrest warrant is modest. No weight can be attached to the period of time since the issue of the warrant during which the Appellant has been resisting extradition.
The current state of the Appellant’s relationship with his son was not clear from the evidence before me. However, it is not suggested that the Appellant has a materially greater role in his son’s life than he had at the time of the hearing below. It follows that although there will be an impact on that boy the position remains that his mother is his principal carer.
Against those factors the matters which the District Judge identified as standing in favour of extradition remain and have considerable force.
I have concluded that the further material does not alter the balance. The position remains that the extent to which extradition will impact on the Appellant’s article 8 rights is not disproportionate in light of the considerable force of the public interest in the honouring of this country’s extradition obligations and of the other factors in favour of extradition as summarized by the District Judge.
Conclusion.
The appeal is, accordingly, dismissed.