View source for Transcript of Magritz v Public Prosecutors Office Bremen (2011) EWHC 1861 (Admin)

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                                                                   CO/10166/2010



Neutral Citation Number: [2011] EWHC 1861 (Admin)


IN THE HIGH COURT OF JUSTICE


QUEEN'S BENCH DIVISION


THE ADMINISTRATIVE COURT



                                                         Royal Courts of Justice




                                                                          Strand




                                                                 London WC2A 2LL




                                                             Friday, 27 May 2011









                                  B e f o r e:




                                MR JUSTICE KING




                                    Between:




                                    MAGRITZ




                                                                       Appellant




                                       v




                        PUBLIC PROSECUTORS OFFICE BREMEN




                                                                      Respondent









              Computer‑Aided Transcript of the Stenograph Notes of




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Mr J Atlee (instructed by Atlee Chung & Co) appeared on behalf of the Appellant



Mr A Watkins (instructed by CPS Special Crime and Counter Terrorism Division)
appeared on behalf of the Respondent








                                J U D G M E N T




                           (As Approved by the Court)









                                Crown copyright©



1.     MR JUSTICE KING:  The appellant is a German national.  This is an appeal
against the decision of District Judge Wickham, made on 22 September 2010, to
order his extradition to Germany.  Germany is a designated Part 1 authority for
the purposes of the Extradition Act 2003 (the Act).  Accordingly, it is Part 1
which applies to these proceedings.


2.     The order was made pursuant to a European arrest warrant issued on 25
March 2010 by the respondent.  It is a conviction warrant.  The warrant
discloses that the appellant was convicted of four offences, occurring between
28 and 30 April 1995 in Bremen.  The framework list is ticked as "swindling" and
"racketeering and extortion".  The particulars given in the arrest warrant are
such that one can describe the offences as theft and robbery.


3.     According to the warrant, the judgment of the court upon which the
extradition warrant is based was given on 14 December 1995, and conclusive
judgment given eight days later on 22 December 1995.


4.     The sentence, which followed as a result of his conviction, was that the
appellant was ordered to be "placed in a psychiatric hospital for an indefinite
period of time."


5.     The warrant rehearses that during all of the four offences the appellant
was "criminally incapable due to a psychiatric disease."  The district judge
correctly rehearses the matter at paragraph 3 of her judgment:


"The defendant was found to be suffering from a psychiatric disease and his
sentence was that he was ordered to be placed in a psychiatric hospital for an
indefinite period of time."


6.     Further information supplied by the respondent by letter dated 21 May
2010 revealed that after serving some years in a psychiatric unit, the appellant
in 2005 was released by the German judicial authorities into the community on
licence under a probation order to live in assisted accommodation but that in
2009 he breached a requirement of his licence that he keep in touch with the
probation officer and inform him of any change of residence.  The appellant came
to England.  It was as a result of that failure to observe the terms of his
release into the community that the arrest warrant was triggered.


7.     This is all explained in the letter of 21 May in the following way.
Under paragraph 1 under the query "Was Mr Magritz released after serving three
and a half years?" it is set out that he "stayed in the forensic psychiatry
until 14 October 2004 due to the sentence of ... 14 December 1995.  Afterwards
‑‑ until 14 February 2005 ‑‑ he lived in an accommodation called 'Schaferhaus'
which was part of the forensic psychiatry."  It is then explained that the
appellant was "placed on probation on 15 February 2005 due to the decision of
the County Court of Bremen of 19 January 2005.  The county court order a period
of probation of 5 years."


8.     The letter then continues:


"The release on probation was withdrawn due to the decision of the County Court
of 21 January 2010, legally binding since 16 February 2010.  On the basis of
this decision the Public Prosecution Service issued a warrant of arrest on 22
March 2010."


9.     The circumstances in which that release on probation, also described in
the letter as "release on licence", was withdrawn are set out in paragraphs 2
and 4 of the letter.  Under paragraph 2, it is stated:


"During the time of his probation Mr Magritz lived in assisted accommodation in
the 'Schaferhaus' in the village of Esgrus.  He was obligated to inform his
probation officer of any change of residence.  Because he did not inform his
probation officer of his change of residence and because he broke tie with his
probation officer ‑‑ among other things ‑‑ the release on licence was
withdrawn."


Paragraph 4 states as follows:


"The last time Mr Magritz was in contact with his probation officer was on 14
September 2009.  They agreed that Mr Magritz should get in touch with his
probation officer in November 2009, which he did not do.  On 25 January 2010,
the probation officer informed the Count Court of Bremen that Mr Magritz
informed him of his stay in London after the event.  The probation officer did
not know anything of all this in advance, and he did not allow the convict to
travel to London.  Mr Magritz only informed his doctor, Mrs Berger, on 28
October 2009 that he intended to visit a friend in London, which is not
sufficient."


10.     The remaining sentence to be served is described in the arrest warrant
as "Placement in a psychiatric hospital for an indefinite period of time, but at
least four months".  The district judge correctly, therefore, treated the
request in the warrant as a request by the respondent for the appellant's return
to be placed in a psychiatric hospital for at least four months.


11.     Only two grounds of appeal are now advanced before me.  Under section 27
of the Act, this court, under subsection 2, may allow the appeal only if the
conditions in subsection 3 or subsection 4 are satisfied, and for present
purposes the material conditions are those in subsection 3.  The conditions are:



"(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."


12.     The first ground being taken is that extradition would breach the
appellant's Convention rights so that section 21 of the Act applies.  Under
section 21(1), the judge must decide whether the person's extradition would be
compatible with the Convention rights within the meaning of the Human Rights Act
1998, and under subsection 2, if the judge decides the question in subsection
(1) in the negative he must order the person's discharge.


13.     The submission is made that the compulsory hospitalisation of the
appellant following his extradition in pursuant of the extradition warrant
infringes his rights under Article 3, Article 5 and Article 8 of the ECHR.  The
ground of appeal is put in this way:


"On the medical evidence before the court, and in the absence of particulars of
a review mechanism and in view of the judgment of the Bremen Regional Court of
16 February 2010, the appellant's return to detention for an indefinite period
would be incompatible with Article 3, Article 5 and Article 8 rights."


14.     The reference to the judgment of 16 February 2010 is a reference to the
decision of the German court withdrawing the release on probation.  This is
referred to in the arrest warrant itself as:


"The objection judgment pronounced by the Bremen Regional Court on January 21
2010 final and conclusive since February 16 2010".


15.     The second ground of appeal relies on section 25 of the Extradition Act
2003.  Section 25 provides, under the heading "Physical or Mental Condition",
under subsection 1:


"(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."


16.     In support of both grounds of appeal, the appellant relies on evidence
he laid before the district judge as to the mental state of the appellant.  It
is in fact evidence which is fragmentary and in no way is an in‑depth analysis
of the mental state of the appellant.  However, I rehearse what it is.  First
there is a report dated 16 July 2010 from the GP of the appellant, Dr O'Reilly,
who had been his GP for the six months prior to his being taken into custody.
It purports to be a report on his medical problems, treatment and prognosis.  It
deals with his drug dependence and the consequence of a leg fracture since he
suffered a road traffic accident in May 1995.


17.     A second report from Dr O'Reilly, dated 27 July 2010, says this in its
material part:


"In response to your specific question, I am able to confirm that to the best of
my knowledge, Mr Magritz has not been the subject of any recommendation by two
medical practitioners under the Mental Health Act, which would result in his
hospitalisation during the period of his registration here."


18.     Those two reports are relied on by the appellant, together with the
contents of the medical records made upon him appellant while he has been at
Wandsworth Prison.  I will return to the specific passages relied on in due
course, but the thrust of the submission, both under section 21 and under
section 25, is that none of this material discloses any evidence of symptoms or
contains any diagnosis which would justify the making of an order under the
Medical Health Act in this country, and that there has been no suggestion
according to this material that it has ever been considered appropriate for the
appellant to be removed from prison for assessment or treatment at a psychiatric
hospital.


19.     The thrust of the submission to me on human rights grounds is that the
appellant, pursuant to the arrest warrant, is now going to be returned to
Germany to continue to serve the original sentence of detention in a psychiatric
hospital for an indefinite period; but that such a return would be a punishment
for a breach of his probation, which would be wholly unjustified, harsh and
inappropriate.  There is nothing, says Mr Atlee on behalf of the appellant, to
suggest that his breach of probation was in any way linked to his mental
behaviour while on release.  His breach lay purely in his failure to keep in
contact with his probation officer.


20.     Mr Atlee relies also in support of the appeal both on the human rights
grounds and under section 25, on the lack of any disclosure by the respondent,
and the lack of any evidence, of a structured mental health review system in
Germany applicable to those sentenced to indefinite detention by reason of the
commission of offences while criminally incapable due to psychiatric disease, or
for breach of a probation order.


21.     In my judgment, for the reasons I am now about to explain, these two
challenges to extradition are wholly misconceived.  However, as a starting
point, I accept entirely the overall submission made by the respondent that
there is in fact before this court no good evidence about this appellant's
mental state.  The evidence of Dr O'Reilly could be no proper basis for this
court coming to any sort of conclusion as to the mental state of the appellant.
Dr O'Reilly does not purport to be an expert in mental health and does not give
any indication of his knowledge of the appellant's mental health history or his
current status.  At best, his evidence is neutral on the question.


22.     Equally, the material disclosed in the prison records would not enable
any court to reach a conclusion that the appellant is not suffering from any
sort of mental health problem.  Indeed, to the contrary, there are indicators
that he does have such problems.  So, for example, this appears in the material
from the prison.  An entry of the 4 May 2010, from Dr Levy at the prison:


"Agitated, poor self‑care.  Says he came to this country from East Germany with
a secret message for some rich and famous people, but they have now gone to
America and he couldn't tell me what the message was... Denied any thoughts of
harming himself or others at assessment.  Further risk to be assessed.  Not keen
on seeing anyone about his mental health."


23.     Then, in the entry on 11 May 2010, again with a heading of Dr Levy:


"About 18 years ago he went to a hospital whilst following a woman he liked as
per his report, and threw a table through a window.  Was given a lot of
injections and feels he was wrongly diagnosed with schizophrenia.  States that
he has only been on injunctions for a short while and treatment has made no
difference to him."


Then further down:


"Introspective ideation.  Stated his beliefs about private messages he wanted to
give certain people in this country.  Refused to tell me who they were and what
the messages were.  Denied any hallucination.  Impression, schizotypal
personality traits.  Some psychotic features noted, but I am not convinced they
are of a nature or degree that warrant urgent treatment in hospital presently.
Quite encapsulated and he is not acting upon them in a manner that compromises
his own or the safety of those around him."


24.     I turn to the precise challenge and appeal on the human rights grounds.
In order for Article 3 to be engaged, that is the article prohibiting torture,
inhuman or degrading treatment or punishment, there has to be shown substantial
grounds for believing that the person concerned, if extradited, faces a real
risk of being "subject to torture or to inhuman or degrading treatment or
punishment in the requested state."


25.     As far as Article 5 (the Right to Liberty and Security) is concerned, in
the context of extradition proceedings where it is asserted that a requested
person's Article 5 rights will be breached on surrender to the requesting state,
he must show extradition which would lead to "a flagrant denial of justice".


26.     As far as Article 8 is concerned, the issue is one of proportionality.
Again, in the context of extradition, there is a high hurdle to be overcome by
the appellant.  He has to establish that the interference with his right to a
private life is disproportionate to the legitimate aim of extradition as a means
of ensuring that those accused or convicted of criminal conduct are brought to
trial, or required to serve a sentence of imprisonment.  In Norris v Government
of United States of America [2010] UKSC, it was emphasised at paragraph 56 by
Lord Phillips that "the consequences of interference with Article 8 rights must
be exceptionally serious before this can outweigh the importance of
extradition."


27.     In my judgment, the respondent is correct in its submission that the
appellant, by the evidence produced, does not begin to show how his surrender
pursuant to the warrant would constitute breaches of any of these Articles
having regard to the principles to which I have referred.


28.     Not only is there no good evidence, in my judgment, on the appellant's
medical state before me, there is no good evidence of what is likely to happen
on the appellant's surrender to Germany to give any basis for the submission
that any of these human rights would be infringed.


29.     There is no evidence or authority for a general proposition that
hospital orders of indefinite duration are intrinsically contrary to Convention
rights.  I agree entirely with the proposition that Germany, as a contracting
party to the Convention, can be trusted, in the absence of evidence to the
contrary, to act consistently with the appellant's Convention rights.  No
evidence has been provided that the appellant would be detained for a period of
time or in conditions which conflict with any of his Convention rights.  If on
surrender the appellant were able to point to any particular breach, the remedy
would lie in the respondent's state's domestic courts, and ultimately at the
ECtHR.


30.     The assertion that it is for the German authorities to provide
assurances about review mechanisms is in itself to misunderstand the approach a
court should take when examining the appropriateness of an extradition.  It is
not in principle for extradition courts within this jurisdiction to reach
judgments about the appropriateness of sentences validly passed by a requested
state beyond that permitted within the terms of section 10 of the Act, absent
any clear evidence that the appellant's Convention rights are at real risk or
are in risk of being breached without effective remedy in the requesting state.



31.     This court is in fact being invited to go behind a validly imposed
sentence of the German court.  There is absolutely no evidence to support an
assertion that on the appellant's return he is going to be subjected to any sort
of unnecessary psychiatric treatment or intervention.  There is no evidence from
a suitable expert commenting on German law of the psychiatric treatment of
prisoners in Germany, purporting to criticise the treatment of anyone in the
appellant's position.  But in any event, the district judge acknowledged that in
fact there is material before the court which gainsays the proposition that
there is no sort of review mechanism for someone in the position of the
appellant in Germany.  The district judge put it this way, in the course of her
judgment:


"I do not believe the absence of any German law relating to review tribunals in
the warrant should render the warrant flawed.  As it happens, the further
document of 21 May from the Public Prosecutor makes it abundantly clear that not
only are there reviews written into the German law of such a court disposal but
that they have been exercised in this defendant's favour.  At paragraph 1 of
that letter it makes it clear that the defendant was released from 'forensic
psychiatry' on 14 October 2004 and lived in separate accommodation.  There are
decisions of the court and the justice agencies that have made it clear that the
defendant lived in assisted accommodation in a local village Esgrus but that
there were certain requirements as to reporting to the Probation Service.  There
is ample evidence that the defendant's situation is permanently under review.
Thus I reject that submission."


32.     This is sufficient, in my submission, to dismiss this appeal on the
human rights ground.  In the round, in my judgment, the appellant has been quite
unable to demonstrate either that there exists substantial grounds for believing
there is a real risk he will be exposed to treatment of sufficient severity so
as to contravene his Article 3 rights, or that he would suffer flagrant denial
of justice such as his Article 5 rights would be infringed, or that his
surrender would represent an unjustified interference with his Article 8 rights.



33.     I turn to the submission under section 25.  It relies on the same
material as to the appellant's mental and physical condition, but it is an
unusual challenge in the terms of section 25 because it is, in effect, a
contention that the appellant's good mental health does not justify indefinite
detention in a psychiatric hospital, and on that basis to order his extradition
would be oppressive for the purposes of section 25.


34.     It is put in this way:


"The present nature of the Appellant's condition is manifestly disproportionate
to his compulsory detention for an indefinite period in a psychiatric hospital.
As a result, the Appellant's return would cross the very high threshold of
oppression."


35.     I agree first with the proposition of the respondent that section 25 is
not engaged on the facts of this case.  The purpose of section 25 is to protect
a requested person whose physical or mental health is so poor that the act of
extradition would be oppressive or unjust.  The argument which the appellant
seeks to pursue, namely that it would be oppressive to extradite the appellant
because he is in too good health to be placed in a psychiatric facility, is not
one which falls within the ambit of section 25, in my judgment.  The appellant's
argument is to misapply the statutory safeguard represented by section 25,
namely a safeguard for requested individuals who, because of their physical or
mental health, would find the act of extradition oppressive.  As the respondent
submits, the appellant's real concern is the appropriateness of the detention
facility into which he will be committed on surrender, rather than any
oppression caused by extradition owing to physical or mental condition.  At
most, this is a human rights challenge to be considered under section 21, rather
than a section 25 one.


36.     But in any event, even if section 25 were engaged, the evidence at to
the appellant's mental health is, for the reasons I have already stated, wholly
equivocal and at best neutral, and would not begin to support the proposition
that the appellant is in too good health to be placed in a psychiatric facility.
There is moreover, again as I have already emphasised, no evidence to support
the assertion that the appellant, upon his surrender, is going to be subjected
to unnecessary psychiatric treatment or intervention.  In other words, there is,
in my judgment, no factual basis for the submission sought to be maintained
under section 25.


37.     The district judge, when rejecting the particular challenge to
extradition under section 25, did so herself by reason of the lack of any
factual basis for such challenge.  She said this:


"Mr Atlee's novel approach to this particular section is based upon some medical
notes that he has obtained from those doctors in HMP Wandsworth who are
responsible for Mr Magritz's care whilst in custody and from two letters to
which I have already referred from Dr O'Reilly who was for a period of six
months this defendant's GP.  Mr Atlee submits that the European arrest warrant
and the likely consequences of an order for extradition mean that this defendant
will be returned to a psychiatric hospital in Germany.  He seeks to demonstrate
from the medical evidence that he has obtained that as far as the defendant's
stay in this country has been concerned that he has not been subjected to any
form of order under the Mental Health Act nor indeed to any psychiatric disposal
nor is he indeed undergoing any treatment for a psychiatric disorder.  Thus,
argues Mr Atlee, by reason of the current physical and mental condition of this
defendant, it would be unjust or oppressive to return him to a regime in which I
am supposed to infer that he (the defendant) will be subjected to unwanted and
unnecessary psychiatric intervention.  Thus the defence argue that potential
breaches of Article 3 and Article 8 come into play when if I do not accept the
section 25 argument then I should apply the same set of facts under section 21
articles 3 and 8 submissions.  Mr Watkins on behalf of the Requesting Judicial
Authority submits that this is a subversive submission designed to undermine the
sentencing practice of one of the Convention countries.  I do not think that I
need to go as far as that.  The letter of 21 May makes it clear that the
defendant was on probation and required to keep in contact with an officer
whilst he was living in the assisted accommodation in the community.  He failed
to keep in contact with the probation officer, left Germany and came to the
United Kingdom.  If one reads the notes of the FME in Wandsworth which describes
the intention of this defendant in coming to this country as 'coming from East
Germany with a secret message for some rich, famous people who have now gone to
America and he could not tell me what the message was', which led that
particular FME to think that further risks should be assessed in the fact that
the following lines reads, 'Not keen on seeing anyone about his mental health'.
This is sufficient indication to me of the FME's concerns.  Another entry in the
notes of the Wandsworth doctors reads, 'Impression, schizotypal personality
traits.  Some psychotic features noted'.  It is clear from reading these entries
that the only concern of the particular practitioner at that time (which was Dr
Samuel Levy on 11 May) was whether the defendant was acting in such a way that
would compromise his own or the safety of those around him.  Again I draw the
inference that the particular doctor did not feel that there needed to be a
transfer within the prison system of this defendant because of any current
manifestations of psychiatric disorder.  However these two entries do not
support the defence contention that this man is in any way so mentally fit that
it would be oppressive to send him back for the purpose of spending a sufficient
period of time within a psychiatric regime in his own country.  In other words,
factually I do not accept the basis of Mr Atlee's section 25 submission and
would regard this use of section 25 as inappropriate."


38.     I agree entirely with the analysis of the district judge under section
25, and she was wholly right, in my judgment, to reject the challenge to the
extradition under this section.


39.     It is worth repeating the two basic flaws in the challenge made both in
Convention terms and under section 25.  No good evidence has been produced by
the appellant about his mental state which would allow this court to draw any
conclusions in the way contended for by the appellant.  There has been no
attempt to obtain a psychiatric report from a suitably qualified expert.
Secondly, there is no good evidence placed before this court of what is likely
to happen to the appellant on his surrender so as to give any sound basis for
the proposition that his human rights will be infringed in the ways alleged, or
that his extradition will be oppressive.


40.     It is fundamental to the procedures under Part 1, based on the framework
decision, that the mechanism of the EAW is based on a high level of confidence
between member states.  There is no evidence before this court to suggest that
Germany, as a contracting party, cannot be trusted to act consistently with the
appellant's Convention rights, whether one looks to Article 3, Article 5 or
Article 8.  For all these reasons, this appeal is dismissed.


41.     MR ATLEE:  No applications.
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