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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Kowalski v Regional Court In Bielsko-Biala, Poland  EWHC 1044 (Admin) (11 May 2017)
Cite as:  EWHC 1044 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| KRZYSTOF KOWALSKI
|- and -
|REGIONAL COURT IN BIELSKO-BIALA, POLAND
Mr Alexander dos Santos (instructed by Crown Prosecution Service) for the Respondent
Hearing dates: 11th April 2017
Crown Copyright ©
Mr Justice Holroyde :
The Polish proceedings and the European Arrest Warrant:
The proceedings before the District Judge:
i) Mr Kowalski's proof of evidence and oral evidence adopting and expanding upon that proof.
ii) Mrs Kowalska's proof of evidence and oral evidence adopting and expanding upon that proof.
iii) Ms Felner's proof of evidence.
iv) A report dated 28th March 2016 by Dr Farhy, a consultant counselling and psychotherapeutic psychologist relating to Mrs Kowalska. Dr Farhy noted that there was no record of Mrs Kowalska having suffered any mental health problems before the extradition process began in relation to her son; she did however have a history of suffering severe personal losses during her life. He administered tests which showed her to be at the lower end of the severe range in respect of anxiety, and at the bottom end of the moderate range in respect of depression. He found her to be physically independent and mobile, but handicapped by her very limited English and her lack of support and social activity. His opinion was that if the extradition proceeded, she was bound to become more depressed and there was a "significant chance" of her developing a major depressive episode.
v) Letters dated 17th March 2016 from Dr Dhatt, a General Practitioner, relating to both Mr Kowalski and Mrs Kowalska. Dr Dhatt described Mr Kowalski's physical problems, and said that his liver condition needed close monitoring by a specialist unit. Dr Dhatt also described Mrs Kowalska's physical problems and noted that she reported herself as being anxious and frightened. He recorded that she had told him she began to suffer anxiety when she came to the UK (which was in about 2008), and he felt she would deteriorate if she were left alone by her son's extradition.
vi) A report dated 15th March 2016 by Dr Belinda Smith, a consultant hepatologist, relating to Mr Kowalski. She reported that treatment for Mr Kowalski's viral hepatitis C had been successfully completed, and the condition was now cleared. She did however require long-term follow up and that Mr Kowalski should be monitored (with blood tests and ultrasound scans) every 6 months, "ideally by a liver specialist or gastroenterologist". The reason why such monitoring was necessary was because of a very small risk – less than 2% per year – that Mr Kowalski would develop liver cancer in the future.
The decision of the District Judge:
"39. I am not persuaded about where Mr Kowalski actually lives. I have a significant doubt as to whether he lives with his mother, irrespective of his evidence and hers. This is because Mrs Kowalski's evidence was her son had lived with her for the past 3 years, yet he only moved to London at the end of 2014 and in his arrest statement, DC Secombe says he attended what was believed to be Mr Kowalski's home address on 16th November 2015 in Leyton, when he initially spoke to his wife who said Mr Kowalski was not due home from work until 8pm; he was subsequently arrested on his return.
40. Mr Kowalski is thankfully free of hepatitis C and the prognosis is his liver will improve and indeed his liver function tests are nearly normal. He is insulin diabetes dependant and has high blood pressure. I am of the view that this can be regulated in Poland as can tests on his liver.
41. Mrs Kowalska told me she is totally dependant on her son. I have no reason to disbelieve that he is her social network and assists her in her day to day life, paying bills and dealing with official problems given her lack of English, but I am not persuaded by either her evidence or that of Dr Dhatt and Dr Farhy as to the devastating consequences on her if Mr Kowalski were extradited. I have already raised my concerns as to whether he actually lives with his mother and the reports of both the GP and the psychologist present her in very different lights, one saying she cannot do anything save for looking after her personal hygiene and light housework and the other saying she is independent and mobile. Her depression will increase if he is extradited and yet I have been given different information about exactly when it started, when she first arrived in the UK or her self reporting to Dr Farhy that it came to the fore when she realised her son may be returned to Poland. Of importance is the fact there is not and never has been a mental health referral to deal with her anxiety. If Mr Kowalski is extradited the state will intervene and assess her needs and give her the help she requires.
42. Ms Felner did not give evidence but I have read her proof of evidence. She refers to being unable to look after Mrs Kowalska if Mr Kowalski were extradited and her worries for Mr Kowalski's health but she does not tell me anything of her life with Mr Kowalski, if they live together, if she is financially dependent on him and that she would not be able to visit him if he returned to Poland."
The grounds of appeal:
i) Dr Dhatt: further report dated 20th July 2016 (Mrs Kowalska).
ii) Dr Shuttleworth, a consultant psychologist: report dated 13th October 2016 (Mrs Kowalska).
iii) Dr Darowski, a consultant in general and geriatric medicine who has the advantage of speaking Polish: reports dated 7th November 2016 (Mr Kowalski and Mrs Kowalska), 25th February 2017 (Mrs Kowalska) and 31st March 2017 (Mr Kowalski).
The legislative framework and relevant principles:
"(a) the seriousness of the conduct alleged to constitute the extradition offence;
(b) the likely penalty that would be imposed if D was found guilty of the extradition offence;
(c) the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D."
"(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.
(3) The judge must—
(a) order the person's discharge, or
(b) adjourn the extradition hearing until it appears to him that the condition in subsection (2) is no longer satisfied."
"(1) On an appeal under section 26 the High Court may—
(a) allow the appeal;
(b) dismiss the appeal.
(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.
(3) The conditions are that—
(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;
(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.
(4) The conditions are that—
(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;
(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;
(c) if he had decided the question in that way, he would have been required to order the person's discharge.
(5) If the court allows the appeal it must—
(a) order the person's discharge;
(b) quash the order for his extradition."
"It is not necessary for the requesting state to demonstrate that it will replicate the conditions which the appellant enjoys, either in prison in the United Kingdom or out of prison in the United Kingdom."
Ouseley J went on to say, at paragraph 17 –
"It is of course possible that treatment will be less satisfactory in Poland than in the United Kingdom, but the question is whether the difference in treatment would mean that extradition is oppressive. It is for the appellant to demonstrate that that is so."
"Findings of fact, especially if evidence has been heard, must ordinarily be respected. In answering the question whether the district judge, in the light of those findings of fact, was wrong to decide that extradition was or was not proportionate, the focus must be on the outcome, that is on the decision itself. Although the district judge's reasons for the proportionality decision must be considered with care, errors and omissions do not of themselves necessarily show that the decision on proportionality itself was wrong."
"32. In our judgment, evidence which was "not available at the extradition hearing" means evidence which either did not exist at the time of the extradition hearing, or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained. If it was at the party's disposal or could have been so obtained, it was available. It may on occasions be material to consider whether or when the party knew the case he had to meet. But a party taken by surprise is able to ask for an adjournment. In addition, the court needs to decide that, if the evidence had been adduced, the result would have been different resulting in the person's discharge. This is a strict test, consonant with the parliamentary intent and that of the Framework Decision, that extradition cases should be dealt with speedily and should not generally be held up by an attempt to introduce equivocal fresh evidence which was available to a diligent party at the extradition hearing."