The Queen on the Application of Kolanowski v Circuit Court of Zielona Gora Poland

Toby Cadman of 9 Bedford Row International appeared on behalf of the Requesting Judicial Authority of Zielona Gora Poland in an extradition appeal before the Administrative Court:

The Queen on the Application of Kolanowski v Circuit Court of Zielona Gora Poland CO/3653/2011

High Court of Justice Queen's Bench Division the Administrative Court

17 October 2011
[2011] EWHC 2727 (Admin) 2011 WL 4966446

Before: Mr Justice Irwin

Monday, 17 October 2011

Representation
Mr M Henley (instructed by Central Law Practice ) appeared on behalf of the Claimant.
Mr T Cadman (instructed by CPS Extradition ) appeared on behalf of the Defendant.

Judgment
Mr Justice Irwin:
1 I am grateful to both counsel for your further submissions in this case, the facts of which are fully analysed in the judgment of 16th September. I admitted fresh evidence from Dr Clague, the jointly instructed cardiologist, in the form of the letter of 8th September, which was unavailable at the time of the hearing below before Deputy Senior District Judge Wickham. I rehearsed the effect of that letter in paragraph 49 of the judgment on 16th September. It seemed to me that Dr Clague's further evidence might be capable of bringing about a different outcome, but I was not then able to see if the evidence was decisive in that regard within the meaning of Hungary v Fenyvesi [2009] EWHC 231 Admin . Therefore I set three questions for potential answer to see whether what Dr Clague had to say was or could be decisive so as to change the outcome of the hearing before the Deputy Senior District Judge.
2 The upshot has been that further to the evidence already admitted as being fresh, pursuant to section 27(4)(a) of the Extradition Act , I have also now read the further letter of clarification from Dr Clague dated 6th October and two letters from Poland, one from the Public Prosecutor's Office dated 3rd October and one in rather similar terms from the Circuit Judge Derius Pawlak, the requesting judicial authority in the Circuit Court of Zielona Gora. I take that material together.
3 I consider that its potential relevance is to the risk of the process of deportation, although in that regard I bear in mind that before any extradition was to be carried out, there would have to be an examination of the patient by a suitably qualified cardiologist. I also bear in mind the risks to this appellant's health within the Polish prison system, in the light of all the information that is now before this court. I, of course, focus on the positive obligation of the signatory country, namely Poland, under article 3 and I consider the test under section 25of the Act which reads in part:
“(1) This section applies if at any time in the extradition hearing it appears to the judge that the condition in subsection (2) is satisfied.
(2) The condition is that the physical or mental condition of the person in respect of whom the Part 1 warrant is issued is such that it would be unjust or oppressive to extradite him.”
The real point here is the oppression rather than any implication as to the justice of the proceedings in Poland.
4 This law has been usefully summarised by Stanley Burnton LJ in Kolanowski (1) [2009] EWHC 1509 Admin at paragraph 1.9 where he observed that for the purpose of oppression and probably to very similar degree in relation to article 3, there is a high burden upon the person seeking to establish oppression or potential breach of article 3.
5 Summarising the effect of the further information, it is that the operation of ablation now planned to take place in the United Kingdom can be done in Poland on this patient within about 12 months, as opposed to four to six months in England, and thus the time is not radically different between the two; and that monitoring is possible in Poland, even if not by the same technical means, through the interrogation of the existing ICD.
6 Balancing against those factors must be, as Dr Clague has pointed out, the uncertainty and anxiety of continuing proceedings itself is a major factor in affecting Mr Kolanowski.
7 Taking this material together with the letter of 8th September, it does not seem to me that it is so decisive as to change the picture which existed before. It does not seem to me that it satisfies the test of oppression or that it is so significant as to represent a breach of article 3. Dr Clague expresses himself in reasonably qualified terms and a good deal of what he has to say is informed by his feelings about the position in Poland within the prison medical system. That is not a matter about which he can have any expert knowledge.
8 For those reasons, it seems to me that the appellant here has not discharged the high burden laid upon him. He may be extradited and the appeal is dismissed.
9 MR CADMAN: My Lord, the only matter I would just ask Mr Henley to consider is obviously that once a timeframe is established for his removal that any change or deterioration, as was apparent in the first set of proceedings, should be immediately communicated because obviously with the discharge proceedings there was some confusion as to whether he was able to surrender or not. He was not able to surrender on at least one occasion due to his health, so I would only ask that Mr Henley communicates that if there is any dramatic change before his removal.
10 MR JUSTICE IRWIN: Yes, in terms of mechanics, I do not know whether I need to go into it, but what is actually going to happen from here?
11 MR CADMAN: I will communicate immediately with the CPS extradition unit who will in turn communicate with the metropolitan team that co-ordinates the logistics and I will have to give very firm instructions as to a cardiologist being made available to conduct a full examination of Mr Kolanowski before he is removed. I will recommend, and it is entirely a matter for them, but I will recommend that Dr Clague is that person, but it is obviously entirely a matter for them. He is the leading cardiologist in the field so I see no reason why he cannot be the—
12 MR JUSTICE IRWIN: And he knows the patient.
13 MR CADMAN: I will obviously communicate all that information to Mr Henley as soon as I receive further instructions from the CPS and then they will have to make a determination as to whether he is transported by a special medical plane — because ordinarily for Poland it is a military plane which may not be suitable for Mr Kolanowski, so will have to take—
14 MR JUSTICE IRWIN: But he is hardly an escape risk.
15 MR CADMAN: He is not, but there obviously was some concern expressed by the judicial authority in the past when he did not surrender. Now we have dealt with that through the discharge proceedings and I am not going to make any comment about as to what has happened in the past. I am certainly not requesting any change in his bail conditions.
16 MR JUSTICE IRWIN: No.
17 MR HENLEY: My Lord, there is a couple of issues. Whilst I understand of course that section 14 , that is passage of time, posits the same test as section 25 and in essence if you do not — it is highly probable, although not necessary — one does not necessarily follow the other actually because of course the section 14 point which was still a live matter, I think in oral submissions I did put it forward as a live matter on the last occasion—
18 MR CADMAN: My Lord, the only point I would make is that the appeal was dismissed as regards all of the matters raised by Mr Henley except for the new evidence in this point which was a pure section 25 point. So far as I am aware section 14 was disposed of in the previous hearing.
19 MR JUSTICE IRWIN: I would have expected Mr Henley if you felt that it had not been dealt with or there was some point that had not been addressed, you would have raised it then.
20 MR HENLEY: I cannot — I am at a slight loss. Yes, perhaps I should have raised it then, but — and of course I am in error for not reminding — if I was doubtful of that I should have reminded you on my submissions prior to judgment. Clearly I do not want to put myself in an embarrassing position by making comment about something. I am not sure that the section 14 point was disposed of on the last occasion. Mr Cadman says it was.
21 MR JUSTICE IRWIN: Let me make it absolutely clear. I do not think there is anything in the section 14 point and so if you want this degree of clarification, given the level of uncertainty about this gentleman's health, given the degree of care with which that has been investigated by all on both sides and given the contribution to delay — and it was a significant contribution, although not of course the only cause of delay, but there was a significant contribution to delay coming from him — then it seems to me that you are nowhere near establishing oppression or anything like oppression by reason of the delay that has occurred in the case. The great majority of that, apart from what is directly to be laid to Mr Kolanowski's door, was in order to be sure that he could be extradited without oppression. So as a standalone complaint it seems to me there is absolutely nothing in that and I am, without going back and reminding myself of everything I said by way of reasoning on the previous occasion, I cannot take you to where I dealt with it but I am perfectly clear that is my view.
22 MR HENLEY: Yes, my Lord. I do not think that I can press that matter. I understand the position but there was an issue of law on the passage of time which, whilst I accept what you have just said, that may cause some difficulty as to where he may have contributed in part to the passage of time, I accept my Lord's judgment on that, of course as I must, but there was still some considerable time because one of the matters was, even on the best interpretation there was still a good, I think, about 10 years or so of passage of time on the oldest offence.
23 MR JUSTICE IRWIN: I do not know what the matter of law was.
24 MR HENLEY: The matter of law was whether the end date is 2005, ie when he left Poland on the other matters and he should not, which was Mr Cadman's position, or whether it should have continued running in these particular matters because he was not fleeing for the purposes of evading these proceedings which had not been commenced at that point and he was not aware that they were criminal proceedings and it was — I do not think that that particular point has actually been dealt with.
25 MR JUSTICE IRWIN: I am sorry, Mr Henley, if you thought that was a live point that might change the outcome you should have persisted in saying that that needs to be addressed at the close of the previous remarks.
26 MR HENLEY: I will accept that criticism, my Lord, clearly. Perhaps—
27 MR JUSTICE IRWIN: It cannot go on forever.
28 MR HENLEY: I accept that, my Lord.
29 MR CADMAN: My position is that it was dealt with effectively on the last occasion. Your Lordship may recall that you asked me a series of questions as to what I would accept, notably when a person is in circumstances outside of his own control whether the period should count during that timeframe and I conceded that there are circumstances where the requested person has not contributed to the delay and that was effectively, as far as my understanding, it was effectively dealt with when you gave judgment on the last occasion.
30 MR JUSTICE IRWIN: I think that is correct. Have you got the judgment?
31 MR HENLEY: No, I have not.
32 MR JUSTICE IRWIN: When you look at it, if you look at paragraphs 39, 40 and 41 I do analyse the question of delay and I come to the conclusion by saying at the end of paragraph 40 that the findings of the Deputy Senior District Judge Wickham were entirely defensible and then in paragraph 41, I say: “She was also right in saying that the risk of prejudice to the accused in the conduct of the trial is very low because of the nature of these cases. They are already very old. They are mostly based on documents, and it is hard to see what the prejudice or injustice would be.” So I think I have addressed that.
33 MR HENLEY: Yes. Certainly, my Lord, I was not trying to be critical of you.
34 MR JUSTICE IRWIN: I do not take it to be that, but I think it has been dealt with.
35 MR HENLEY: Thank you. Then the second point and this is a more difficult point, it is about certifying a question as to whether it is suitable for the Supreme Court. Now one of the reasons that I am addressing you on that, and of course this is largely a factual-based issue which is particular to Mr Kolanowski and I am slightly hesitant about making this application, but Mr Cadman and I were discussing it, there is a current case for which permission has been granted, it is HH ?
36 MR CADMAN: My Lord, it is an article 8 point, not a section 25 point. It is whether the matter has been certified where there are children and there are two parents at risk of extradition. It is entirely different to this matter. I appreciate that Mr Henley might want to attach the oppression side of the article 8 point and the test, but in my submission it is an entirely separate matter and therefore any application for leave to certify a point of law in that relation should be refused.
37 MR JUSTICE IRWIN: Well, Mr Henley, I think I am going to deal with this fairly shortly because it seems to me that we have ended up in a very similar position, after all of the exploration and examination of the case, in a very similar position to that at the end of Kolanowski (1) and it does not seem to me there is a matter of law here fit for the Supreme Court. You will have to ask them.
38 MR HENLEY: I think I cannot without your certifying a question, but I have 14 days in which to put something in writing which I may take the opportunity for your consideration.
39 MR JUSTICE IRWIN: Of course. If you certify something that persuades me it is worthy of their attention, I will of course think afresh, but at the moment I think you have an uphill struggle on that one.
40 MR HENLEY: Thank you, my Lord.