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You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> Republic Of Poland v Makos [2009] NIQB 73 (30 June 2009) URL: http://www.bailii.org/nie/cases/NIHC/QB/2009/73.html Cite as: [2009] NIQB 73

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Neutral Citation No. [2009] NIQB 73	Ref:	WEA7576
Judgment: approved by the Court for handing down	Delivered:	30/06/2009
(subject to editorial corrections)*


 


IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND QUUENS BENCH DIVISION ----------------------------- DIVISIONAL COURT ----------------------------- REPUBLIC OF POLAND Appellant -V- SEBASTIAN MAKOS Respondent ________ Weatherup J and Treacy J

WEATHERUP J

[1] This is an appeal by the Republic of Poland against the decision of the Recorder of Belfast of 29 May 2009 refusing the extradition of Sebastian Makos to Poland. We refer to the judgment of the Recorder in the Annex to this decision for the background to this appeal. Mr Ritchie appeared for Poland, the Requesting State, and Mr McGuinness for Mr Makos, the Requested Person.

[2] Mr Makos objected to his extradition to Poland on three grounds as set out in paragraph 21 of the Recorder's decision. The first ground related to the 'passage of time' and that it would be unjust and oppressive to return him to Poland, a ground rejected by the Recorder. Secondly reliance was placed on 'abuse of process' on the basis that the court in Poland had failed to inform him of the hearing date, that he was entitled to leave Poland despite the fact that it may leave him in breach of his supervision order, that the proceedings had not been instituted expeditiously and that there had been failure of the Polish courts to notify his lawyers. Each of those aspects of an abuse of process claim was rejected by the Recorder. Thirdly, Mr Makos relied on human rights grounds, namely Article 2 and the right of life, Article 3 protection against inhuman and degrading treatment and Article 6 and the right to a fair trial. Each of those grounds was rejected by the Recorder. A further human rights ground relied on was Article 8 and the right to respect for family life, which the Recorder considered in two respects. A general family rights claim by Mr Makos was rejected. However in respect of a claim based on the mental health of Mrs Makos the Recorder accepted that Article 8 provided a basis for refusing the extradition of Mr Makos.

[3] Poland now appeals against the finding of the Recorder based on the mental health of Mrs Makos and Article 8. Poland contends that the Recorder was mistaken in his approach to Article 8 rights by rejecting a balancing exercise. The Recorder dealt with this issue at paragraphs 54-68 of his judgment. He there set out the medical background of Mrs Makos as provided in the medical notes and records and the report from Dr Bownes, Consultant Psychiatrist. In essence he concluded, in accordance with Dr Bownes report, that it was highly probable that Mrs Makos would engage in self-harm if her husband were to be extradited.

[4] Having reached the above conclusion in relation to Mrs Makos the Recorder, at paragraph 67, asked –

"Has the Requested Person established evidence capable of proving there were substantial grounds for believing there is a real risk that his Convention rights would be violated?"

In response the Recorder stated (italics added) -

"I have determined that the medical evidence is such as it raises that real risk….

The Requesting State has produced no medical evidence to dispel any doubts arising from the evidence of Dr Bownes. In those circumstances I have decided that I should refuse the application."

In conclusion the Recorder stated at paragraph 68 (italics added) -

"I make this decision in the knowledge that Mr Makos has committed serious offences and that the accusatory offences are also serious. Nevertheless the consideration of Convention Rights is not a balancing exercise. If the risk of the violation is significant and the effects of such violation could give rise to a risk to life or health then Convention rights take precedence."

[5] Poland contends that the Recorder was wrong to reject a balancing exercise in respect of the determination of Article 8 Rights. As appears from paragraph 67 of the judgment the Recorder concluded that as Poland had produced no contradictory medical evidence to that which established a real risk to Mrs Makos the application for extradition should be refused. Interference with family rights is equated with a violation of Article 8. We accept that the Recorder was mistaken in rejecting a balancing exercise in respect of the Article 8 rights. Article 8 of the Convention and the right to respect for private life is a 'qualified' right. It is qualified to the extent that such interference as may be established may be justified in the circumstances and on the specified grounds set out in Article 8(2). Accordingly, consideration of Article 8 requires a determination in the first place as to whether those rights are engaged, secondly whether there has been interference with those rights and thirdly, if there should be interference, whether the interference can be justified. An unjustified inference amounts to a violation of Article 8. Thus interference with the right to respect for family life may be justified under Article 8(2), as with other qualified rights such as freedom of thought, conscience and religion under Article 9, freedom of expression under Article 10 and freedom of assembly under Article 11. The structure of qualified rights is different to that of unqualified rights such as the right to life under Article 2, protection from inhuman or degrading treatment under Article 3, and fair trial rights under Article 6.

[6] Justification of interference with qualified rights involves the concept of proportionality. The House of Lords in Huang v The Secretary of State (2007) UKHL 11 at paragraph 19 sets out three steps in the examination of proportionality. The first is whether the objective of the interference is sufficiently important to justify limiting the fundamental right, that is, there must be a legitimate aim, which in considering respect for family rights involves the matters specified in Article 8(2), which include the prevention of crime and the protection of the rights and freedoms of others. Secondly the measures designed to meet the objective must be rationally connected to it, which measures in the present case concern the extradition scheme and satisfy this requirement. Thirdly, the means used to restrict the right are no more than are necessary to accomplish the objective, a requirement satisfied in the absence of any other means of securing extradition.

[7] However the House of Lords went on to state an additional feature of proportionality –

"That feature is the need to balance the interests of society with those of individuals and groups. This is indeed an aspect which should never be overlooked or discounted. …. the judgment on proportionality …. must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention".

Thus it is not sufficient to equate interference with a right with a violation of that right. Interference may be justified. Justification includes consideration of proportionality. Proportionality involves a balancing of private and public interests. In the present case a conclusion that there has been a violation of Article 8 will emerge after a balancing of the private and public interests involved.

[8] At paragraph 67 of his judgment the Recorder referred to Higgins LJ in Rozaitiene v Republic of Lithuania [2009] NIQB 3 in the Divisional Court. The extradition appeal raised issues of inhuman and degrading treatment under Article 3 and fair trial rights under Article 6. At paragraph 32 of the judgment it was stated –

"Where he alleges under section 21 that his extradition would not be compatible with his Convention rights within the meaning of the Human Rights Act 1998, the onus is on him to show substantial grounds for believing that his rights under Article 3 or 6 would be violated. Should he establish evidence capable of proving that there are substantial grounds for believing there is a real risk that his Convention rights would be violated then the requesting state must dispel any doubts arising from that evidence."

The above passage is quoted at paragraph 26 of the Recorder's judgment and contains the question adopted by the Recorder at paragraph 67. It is to be noted that where the passage refers to Article 3 or 6 the Recorder interposed a reference to Article 8. The assessment of unqualified rights under Article 3 and 6 and the assessment of qualified rights under Article 8 will take a different course. A violation of Article 8 involves a balancing of the private and public interests.

[9] A number of general comments may be made.

First of all it is common case between the parties that consideration of family rights under Article 8 may extend not only to the rights of the requested person but also to other members of the family and hence in this case to Mrs Makos.

Secondly it is common case that there is no 'exceptionality test' to be applied in considering whether or not the proposed action is proportionate. In Huang at paragraph 20, in relation to immigration and consideration of Article 8 rights, in considering whether the interference was sufficiently serious to amount to a breach of the fundamental right protected by Article 8, it was stated –

"It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham …. He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the rules and supplementary directions, but entitled to succeed under Article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test."

The absence of an exceptionality test applies equally to extradition. In Jaso v Central Criminal Court No 2 Madrid [2007] EWHC 2983(Admin) at paragraph 57 Dyson LJ stated (italics added) –

"What is required is that the court should decide whether the interference with a persons right to respect for his private life or (as the case may be ) family life which would result from his or her extradition is proportionate to the legitimate aim of honouring extradition treaties with other states. It is clear that great weight should be accorded to the legitimate aim of honouring extradition treaties made with other states. Thus, although it is wrong to apply an exceptionality test, in an extradition case there will have to be unusual and striking facts to lead to the conclusion that it is disproportionate to interfere with an extraditee's art 8 rights."

We express caution about the use of the words exceptional or exceptionality because they risk being converted into a test. However the standard to be met is high and it remains necessary to establish 'unusual and striking facts' for extradition to amount to a violation of Article 8.

[10] Thirdly, the medical condition of an applicant or a family member may be taken into account in considering whether extradition is unjust or oppressive under the passage of time provision, or would involve inhuman or degrading treatment under Article 3 or as in this case as an Article 8 issue. In the present case before the Recorder Mr Makos relied on the passage of time and claimed that extradition would be unjust and oppressive. There was no cross-appeal against the rejection of that ground. However the point was revived on this appeal as Counsel for Mr Makos contended that it was relevant in the event that this Court accepted that the Recorder had taken a mistaken approach to Article 8.

[11] At paragraphs 40 and 45 the Recorder referred to the balance of probabilities as an approach to the determination of the evidence. Counsel for Mr Makos contended that the proof beyond reasonable doubt was required when considering whether flight from the jurisdiction would bar reliance on delay, it being alleged that Mr Makos absconded from Poland and therefore contributed to any delay. However the judgment of the Recorder does not rely on flight as a bar to delay. The contention in relation to the use of the balance of probabilities is not well founded.

[12] The Recorder considered the passage of time issue at paragraphs 46 and 47 of his judgment and rejected the claim that delay rendered extradition unjust or oppressive. He stated that he would return to the issue of the health of Mrs Makos when addressing Article 8 issues, but when considering the passage of time he did not believe that any improvement in her health would allow him to exercise his powers to refuse extradition. Counsel for Mr Makos contended that the Recorder ought to have decided the case on the basis that his findings in relation to Mrs Makos' health would render it oppressive for there to be extradition, whatever conclusion might have been reached in relation to Article 8. That being so Counsel for Mr Makos contended that the Recorder should in any event have refused extradition and this Court should do the same.

[13] This brings us to a consideration of the powers of the Court on an appeal. Section 29 of the Extradition Act provides that on an appeal under the Act the Court may allow the appeal if two conditions appear to be satisfied. The first condition is that the Judge ought to have decided the 'relevant question' differently. A question is relevant if the Judge's decision on it resulted in the order for the person's discharge. In this case the relevant question concerned Article 8 on which the Recorder ordered Mr Makos' discharge. Thus the issue is whether the Judge ought to have decided the relevant question, the Article 8 question, differently. On that issue we are satisfied that the Judge should have decided the Article 8 question differently, namely by conducting the appropriate balancing exercise. The second condition is that if he had decided the question in the way he ought to have done, he would not have been required to order the person's discharge. As to how the Recorder might have approached that question we have noted that in order to be satisfied that there would be a violation of Article 8 it would require unusual and striking facts.

[14] As Mr Justice Treacy stated in argument yesterday, it is evident that the same problems concerning Mrs Makos' health would arise if Mr Makos were to be returned for trial in Northern Ireland for similar offences to those for which his extradition to Poland is sought. In Poland there are services available, as appears from the medical records, for those with mental health problems. Family support is also available to Mrs Makos in Poland. Mr Makos obviously provides support for his wife but there is not the degree of dependency that it is apparent developed over 12 years spent in the jurisdiction by a father who was a sole carer of a severely disabled son, as in Re Cookeson [2001] EWHC 149 (Admin). It is the opinion of Dr Bownes that it is highly probable that Mrs Makos would engage in self harm in the event of distress or difficult life circumstances. We have not been satisfied that there are any unusual and striking facts in the present case that warrant the conclusion that such interference with respect for family life as might arise by reason of Mrs Makos' condition would render extradition unjustified as being disproportionate action in the circumstances.

[15] Where the Court allows the appeal it must quash the order discharging the person, remit the case to the Judge and direct him to proceed as he would have been required to do if he had decided the relevant question differently at the extradition hearing. In the light of what we have set out above we are satisfied that the Recorder was mistaken in his approach to the Article 8 issue. Accordingly we quash the order discharging Mr Makos, we remit the case to the Recorder and direct that he proceed as he would have been required to do if he had decided the relevant question differently at the extradition hearing, namely that he would have conducted a balancing exercise in relation to the claim under Article 8. For the purposes of determining whether extradition was proportionate the Recorder would have sought to ascertain whether in all the circumstances there were any unusual and striking facts about this case that warranted a refusal of extradition.

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ANNEX

The Judgment of the Recorder of Belfast at first instance dated 29 May 2009

IN THE COUNTY COURT FOR THE DIVISION OF BELFAST BY THE RECORDER OF BELFAST IN THE MATTER OF AN APPLICATION UNDER THE EXTRADITION ACT 2003 ("THE ACT")

BETWEEN:

POLAND

APPLICANT

AND

SEBASTIAN MAKOS

THE REQUESTED PERSON

INTRODUCTION

[1] This is a request by Poland (the applicant) for the extradition of Sebastian Makos (Mr Makos) to Poland, which is a Category I Territory under the Act.

[2] The applicant issued an European Arrest Warrant in respect of Mr Makos under Part I of the Act on 21 September 2007 seeking his arrest, and on 12^th November 2007 the Serious Organised Crime Agency, which had been designated by the Secretary of State for the purposes of Part I of the Act, certified that the Warrant had been issued by a judicial authority of a Category I Territory which had the function of issuing arrest warrants. That certificate also confirmed that by virtue of Section 1 of the Act the Secretary of State had designated Poland for the purposes of Part I of the Act. Mr Makos was arrested on 11 January 2008 and appeared before me, the appropriate judge, on the same day.

[3] A number of hearings have taken place since that date directed towards a resolution of the factual situation behind this arrest warrant, and also to hear legal argument on the grounds upon which Mr Makos resists his return to Poland. This unfortunately has taken much longer than one may have hoped for a number of reasons. The court required further detail as to:

the exact background to the criminal offences alleged by Poland;

the position regarding legal proceedings in relation to different criminal offences which had been dealt with by the Polish courts;

the background to a statutory supervision period which Mr Makos had been ordered to undergo as a condition for his release from custody in respect of certain of the offences; and

matters arising from evidence given to the court by Mr and Mrs Makos and by Mrs Makos senior, the Requested Person's mother.

This took some time to correlate. After receipt of further information following the hearing of evidence the parties were afforded the opportunity to make representations, but the court was advised that that was not required.

The court also awaited the outcome of a Court of Appeal in Northern Ireland decision in the case of The Republic of Lithuania –v- Irene Rozaitiene, which has determined the approach that a court dealing with extraditions should adopt in relation to the evidence required and the standard of proof in relation to differing aspects of the matters arising under the Act.

[4] At all times it has been acknowledged that Mr Makos is the person named in the Warrant and no issue was taken regarding its execution.

THE RELEVANT STATUTORY PROVISIONS

[5] The Extradition Act 2003 implements in this country the Council Framework Decision of the European Council dated 13 June 2002. The European Arrest Warrant procedure is designed to implement what was then a new and summary process for extradition between member states. The underlying assumption of the Framework Decision is that member states, sharing common values and recognising common rights, can and should entrust the integrity and fairness of each other's judicial institutions. While the Framework Decision sets out the results to be achieved nevertheless it is left to National Authorities to choose the form and methods by which that choice is achieved. A National Authority must not seek to frustrate or impede achievement of the purpose of the Decision, for that would impede the general duty of co-operation binding on member states under the EC Treaty. However the Framework Decision does not prevent a member state from applying its Constitutional Rules relating to due process – see Dabas –v- High Court of Justice in Madrid, Spain [2007] UK HL6.

[6] The Act sets out a structure which the court is obliged to follow in a chronological manner.

(a) The starting point is Section 2 which provides:

" (i) This section applies if the designated authority receives a Part I Warrant in respect of a person.

(ii) A Part I Warrant is an arrest warrant which is issued by a judicial authority of a Category I Territory and which contains:-

(a) The statement referred to in sub-section (iii) and the information referred to in sub-section (iv), or

(b) The statement referred to in sub-section (v) and the information referred to in sub-section (vi).

(iii) The statement is one that –

(a) The person in respect of whom the Part I Warrant is issued is accused in the Category I Territory of the commission of an offence specified in the Warrant, and

(b) The Part I Warrant is issued with a view to his arrest and extradition to the Category I Territory for the purpose of being prosecuted for the offence.

(iv) The information is –

(a) Particulars of the person's identity;

(b) Particulars of any other Warrant issued in the Category I Territory for the person's arrest in respect of the offence;

(c) Particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the Category I Territory under which the conduct is alleged to constitute an offence;

(d) Particulars of the sentence which may be imposed under the law of the Category I Territory in respect of the offence of the person who is convicted of it.

(v) The statement is one that –

(a) The person in respect of whom the Part I Warrant is issued is alleged to be unlawfully at large after conviction of an offence specified in the Warrant by a court in the Category I Territory, and

(b) The Part I Warrant is issued with a view to his arrest and extradition to the Category I Territory for the purposes of being sentenced for the offence of or serving a sentence of imprisonment or another form of detention to the Category I Territory for the purposes of being sentenced for the offence of for serving a sentence of imprisonment or another form of detention imposed in respect of the offence.

(vi) The information is –

(a) Particulars of the person's identity;

(b) Particulars of the conviction;

(c) Particulars of any other warrant issued in the Category I Territory for the person's arrest in respect of the offence;

(d) Particulars of the sentence which may be imposed under the law of the Category I Territory in respect of the offence, if the person has not been sentenced for the offence;

(e) Particulars of the sentence which has been imposed under the law of the Category I Territory in respect of the offence, if the person has been sentenced for the offence.

[7] From the outset there was some confusion as to exact position regarding criminal proceedings in Poland relating to the defendant. I obtained further information from Poland and it now appears clear that the warrant requests the arrest and surrender of Mr Makos for the purposes of (i) conducting a criminal trial on two charges; and (ii) executing a penalty of imprisonment in respect of four offences. The background, both factually and as regards the legal position in respect of these charges and offences, are set out in Section E and F of the warrant and are annexed in the Schedule to this Ruling.

[8] It is somewhat unusual to see both the situations referred to in Section 2(ii) of the Act contained in the same warrant. However I see nothing to contradict the right of a Requesting State to issue one warrant placing a Requested Person in both capacities, namely as a person who is accused of an offence for which a trial has not yet been held: and a person who has been convicted of other offences whose extradition is sought for the purposes of serving a sentence.

[9] Therefore for the purposes of this Ruling I require to approach it in two parts. The first will be in respect of what I will refer to as 'the accusatory offences' and secondly 'the conviction offences'.

[10] With regard to the accusatory offences I was advised by the Polish Authorities in February 2008 that these related to alleged offences in May and June of 2002, the details of which are set out in paragraph E(2)(a) of the Warrant – see the Schedule for details of these offences. I was advised that these matters moved from one court to another court in Poland. These proceedings involved a co-defendant. The proceedings in respect of both men were not brought before the court again until October 2006 at which stage Mr Makos was excluded from the proceedings due to his absence from Poland. The proceedings continued in respect of the other defendant. A preventative measure by way of a 'Temporary Arrest Order' was administered against Mr Makos in respect of these offences, the purpose of which appears to be to suspend any period of limitation which might apply to any offence under Polish Law. The Polish Authorities therefore stated that due to the absence of Mr Makos the court did not hold a trial in relation to him nor did it issue any decision in the matters. Participation of a defendant in the Polish criminal procedure is obligatory, apart from some specific provisions none of which arise in relation to Mr Makos.

[11] No issue was taken on behalf of Mr Makos that these accusatory offences did not constitute extradition offences, but I confirm that I am satisfied that they do represent extradition offences for the purposes of the Act.

[12] Turning to the conviction offences, no issue has been taken in relation to these constituting extradition offences for the purposes of the Act, and again I have determined they are extradition offences. The offences were of blackmail. In respect of these offences the defendant was sentenced by a regional court on 10 October 2003 to a period of three years and six months imprisonment. On an appeal there was some amendment to the period which was confirmed for a term of three years and four months. No appeal lies against that sentence, nor was any undertaken.

[13] On 14 October 2004 Mr Makos was released from custody in respect of the conviction offences on certain conditions. He had earned the right to apply for release having served half of his sentence. The conditions which were attached were:-

(i) That he abides by the law and is peaceful;

(ii) That he does not cause any behavioural issues;

(iii) He performs imposed duties appropriately; and

(iv) He properly carries out tasks defined by the individual activities programme.

[14] He was also obliged to keep in touch with his 'custodian', a person fulfilling effectively the same task as a Probation Officer in this jurisdiction. A further condition was that he:-

"Notify any change of residence or address to the court that made the decision to release on bail and the court that appointed a probation officer, social organisation for supervision or gave instructions".

[15] On foot of that Order Mr Makos was released on 15 October 2004. However he left Poland in January 2006, and in April 2006 he returned and brought his wife and young son came to Northern Ireland.

[16] On 9 October 2006 Mr Makos was recalled by the Polish Court on an application from his custodian for failure to keep in touch with her, and also for his alleged failure to notify her (and the court) of his change of address. On 17 October the court enforced the Order requiring him to return to prison to serve the sentence term which he would have served if he had not obtained his conditional release.

[17] A considerable amount of evidence was put forward on behalf of Mr Makos, claiming that he had carried out all of the terms and conditions of his release; that he had either directly or through his wife advised the custodian as to where he was; and that his mother and his wife had advised the custodian that if he knew the date of the hearing in Poland he would return. Mr Makos confirmed that was his attitude when I asked him that question during the course of his evidence.

[18] I will return to the background as has been furnished by the Polish court, including all extracts from the custodian's notes as to what was or was not said to her by Mrs Makos and Mrs Makos senior, but it is right to say that the custodian is clear in those notes that from February 2006 she had been advised that Mr Makos had left the country; that an address was not given to her; and that she was informed that he would not be returning to Poland. I should make it clear that it is not for this court to determine if there have been breaches, nor what the consequences of any breach might or should be. That is for the Polish Court. The relevance of this evidence is its role in the determination of this court as to whether the Requested Person is 'at large' for the purposes of the Act.

[19] As part of the general background to the question of criminal proceedings in Poland the additional documentation furnished to this court in September 2008 disclosed a further enquiry being carried out by the police in respect of "events at the gas station in Miastko" – I will refer to this as 'the Miastko incident'. No further details are given of this, and they do not form part of the application for the extradition of Mr Makos. However it is relevant to the general background of events and circumstances in and around the end of 2005 and early 2006, a period relevant both in terms of Mr Makos' engagement with probation and in relation to his leaving the country in February 2006.

[20] In the documentation the Polish authorities advised that Mr Makos was temporarily arrested in the period from 9 September to 5 October 2005 arising from the Miastko incident. However on 5 October 2005 he obtained bail and was placed under what is referred to as "police surveillance", by which I understand from the narrative means he was obliged to report at certain times to the police. A ban on leaving the country was also imposed. When it was eventually advised to the authorities in Poland that Mr Makos had left the country that ban was quashed – for the obvious reason that he had already left the country. I should state that none of this part of the background to events in Poland was given in evidence to this court, in particular that at the time he left the country he was under a ban in respect of the Miastko incident, quite apart from his obligations arising from his release from imprisonment under the conviction offences. I regard his failure to draw this to the court's attention as a serious lacuna in the evidence given to me as to what was the true background of Mr Makos leaving Poland in January 2006.

[21] In the skeleton argument filed on behalf of Mr Makos in January 2008 his legal representatives raised objections to his return to Poland on a number of grounds namely:-

(a) That in respect of both the accusatory and the conviction offences it would be unjust and oppressive to return him by reason of the passage of time under Sections 11 and 14 of the Act;

(b) That under Section 21 of the Act his extradition would be incompatible in respect of both the accusatory and conviction offences with his rights under Article 3 and Article 8 of the European Human Rights Convention; and

(c) That in respect of the conviction offences it would be an abuse of process to return him on the basis that the court in Poland had failed to inform him of the hearing date; that he was entitled to leave Poland despite the fact it may leave him in breach of his supervision order; that the proceedings had not been instituted expeditiously, and that there had been a failure of the Polish courts to notify the lawyers of the respondent.

THE STATUTORY BARS

[22] The relevant legislative provisions in relation to these objections are as follows:-

(a) By Section 11 of the Act it is provided:-

"(i) If the judge is required to proceed under this Section he must decide whether the person's extradition to the Category I Territory is barred by reason of –

(b) The passage of time.

(ii) Sections 12-19 apply for the interpretation of Section (i).

(iii) If the judge decides any of the questions in subsection (i) in the affirmative he must order the person's discharge.

(iv) It the judge decides those questions in the negative and the person is alleged to be unlawfully at large after conviction of the extradition offence, the judge must proceed under Section 20.

(v) If the judge decides those questions in the negative and the person is accused of the commission of the extradition offence but is not alleged to be unlawfully at large after conviction of it, the judge must proceed under Section 21".

[23] By Section 14 it is provided:-

"(14) Passage of time.

A person's extradition to a Category I Territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large (as the case may be).

[24] Section 20 of the Act provides:-

"(20) Cases where a person has been convicted.

(i) The judge is required to proceed under this section (by virtue of Section 11) he must decide whether the person was convicted in his presence.

(ii) If the judge decides the question in subsection (i) in the affirmative he must proceed under Section 21.

(iii) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.

(iv) If the judge decides the question in subsection (iii) in the affirmative he must proceed under Section 21.

(v) If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.

(vi) If the judge decides the question in subsection (v) in the affirmative he must proceed under Section 21.

(vii) If the judge decides that question in the negative he must order the person's discharge.

(viii) The judge must not decide the question in subsection (v) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights -

(a) The right to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required;

(b) The right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."

[25] And finally under Section 21 of the Act it is provided:-

"(21) Human Rights.

(i) If the judge is required to proceed under this Section (by virtue of Section 11 or 20) he must decide whether the person's extradition would be compatible with the Convention Rights within the meaning of the Human Rights Act 1998 (c.42).

(ii) If the judge decides the question in subsection (i) in the negative he must order the person's discharge.

(iii) If the judge decides that question in the affirmative he must order the person to be extradited to the Category 1 territory in which the warrant was issued.

(iv) If the judge makes an order under sub-section (3) he must remand the person in custody or on bail to wait for his extradition to the Category I territory.

(v) If the judge remands the person in custody he may later grant bail."

[26] I referred earlier to the matter in which the court was requiring guidance from the Court of Appeal in the case of Rozaitiene. For the purposes of my decision in this Ruling I refer to the judgement of Higgins LJ at paragraph [32] where he states

"In an extradition hearing in which the Requested Person alleges, under Section 14 of the Act, that it would be unjust or oppressive to extradite him, the onus is on the Requested Person to show on a balance of probabilities why it would be unjust or oppressive to do so. Where he alleges under Section 21 that his extradition would not be compatible with his Convention rights within the meaning of the Human Rights Act 1998, the onus is on him to show substantial grounds for believing that his rights under Article 3 or 6 (and I interpose to say Article 8 in this case) would be violated. Should he establish evidence capable of proving there are substantial grounds for believing there is a real risk that his Convention rights would be violated, then the Requesting State must dispel any doubts arising from that evidence."

THE FACTS

[27] In this particular application I require to establish a number of facts. These are as follows:-

(a) What were the circumstances in which Mr Makos came to leave Poland –were they as he alleges that his custodian knew he was leaving: that she knew where he was living: and that as a result the State of Poland effectively consented to his leaving which he was able to do since his passport was returned to him.

(b) Whether Mrs Makos and Mrs Makos senior advised the custodian that Mr Makos would return to Poland if he was advised of the date of the hearing:

(c) Whether Mr Makos was, as he claimed and to which I will return, the subject of threats from sinister forces in Poland, and that Mrs Makos was also threatened by these groups who appear to have been involved in and around some of the offences which form part of the criminal legal proceedings against Mr Makos in Poland:

(d) What the effect would be of the return of Mr Makos to Poland, on his family, and in particular his wife in respect of whom it is claimed that she has had serious physical and mental problems prior to coming to Northern Ireland, which have settled considerably but which would return in a serious form if she were to return to Poland with her husband in the event of his extradition.

[28] In respect of all of these factual matters the obligation is on Mr Makos to prove them to me on the balance of probabilities as accurate and true.

[29] In relation to the timeline for events relating to the court proceedings these have already been set out above and will form the template for any decision in respect of both the accusatory and the conviction offences in relation to Section 14 (passage of time), and/or any argument in relation to Article 6 of the Convention in respect of the accusatory offences, namely the ability of Mr Makos to obtain a fair trial.

[30] As regards the factual background to Mr Makos leaving Poland the starting point has to be the obligations placed on him by the court when he was conditionally released in October 2004. Mr Makos could have been in no doubt whatsoever as to the obligations imposed on him during the period from his release until the date of the expiration of the balance of the term of imprisonment that he would have otherwise served if he had not been so released. These were quite explicit, in particular his obligation to let the court and the custodian know at all stages where he was living; and to be in a position to carry out all and any work that he was directed to do by the court and the custodian. Such obligations were fundamental to the purpose of his release, and the terms of his release. In addition I am now aware that as late as November 2005, when he was granted bail in respect of the events of the Miastko incident he had a specific obligation to remain within Poland. This would have reinforced the obligation not to leave the country.

[31] In his evidence Mr Makos stated that he remained in contact with the custodian throughout the time from his release. She would have occasionally attended his home, at times unannounced. He claimed that he disclosed his intention to leave during one of the visits to his home. He also stated that she was aware that he had been a witness against an organised crime group who were by that stage out of prison. In answer to questions from myself he stated that he had given evidence for the prosecution in cases involving members of these groups, in one case appearing in court in and around October/November 2005. He also stated he had given information to Central Intelligence Bureau in several cities. When I raised these matters with the Polish Authorities as to whether these assertions were factually correct or not, the court indicated it was not in a position to investigate such matters and therefore was unable to help me in determining whether it was factually accurate.

[32] I have considered this evidence carefully. While I am satisfied that there is evidence that at that time Mr Makos had concerns about his wellbeing, these arose from his own actions in the past and his involvement, directly or indirectly, with the persons from whom these threats were being made. There is no evidence that Mr Makos had been attacked or was the subject of any threats. Indeed he remained in Poland from October/November 2005 (the dates he said he became involved) until January 2006 without any report to the police that he himself had received any threats.

[33] Mrs Makos in her evidence stated that she had raised concerns for her safety with the police. However

There was no evidence that any such report by Mr or Mrs Makos was made to the custodian;

In the investigation report from the county police headquarters in Valcz it is reported that '[she] had received a phone call from a stranger on 29 September 2005, and that a threat had been made to kill her and her family. All avenues of investigation have been exhausted and that the matter should be discontinued.'

On 28 October 2005, during a discussion with Mrs Makos, the custodian records that Mrs Makos had at that time miscarried in September 2005, that she "at present feels good", and that their hotel business was delivering a satisfactory income.

On 30 November 2005 there was no indication of any problems in the custodian's notes whatsoever. On neither occasion was anything said either about any threat or any continuing threats, although it is right that in January 2006 there is a note that visitors were staying away from the hotel "due to mafia presence" and that Mrs Makos was worried about such situations.

In February 2006 whenever the custodian could not meet with Mr Makos, and hadn't done so for some months, she was advised that he had left the country "for a short period of time to look for visitors who might want to come hunting". It stated that he was staying in touch with his family, but the family couldn't contact him. There was nothing to suggest any concern for the personal security of either Mr or Mrs Makos

[34] These were contemporaneous notes made in a log, a copy of which in the original Polish has been furnished to the court and to the parties. They have not been challenged. I have concluded that while there may indeed have been some ongoing concerns in relation to the presence of such people in the background, there is a paucity of evidence to show that their presence translated into any real threat against either Mr Makos or Mrs Makos such as would in any way raise substantial concerns relating to their Article 2 or 3 rights under the Convention. There is nothing to indicate that if reported to the police authorities that they would not receive proper protection and assistance, and indeed if Mr Makos had co-operated with the authorities along the lines that he suggested, it would seem highly improbable that protection and assistance would not be forthcoming if any real threat, any substantial threat, to their safety had been raised.

[35] Evidence was given by Mrs Makos that the state of her health at the end of 2005 was extremely fragile. She had attempted to take her life on one occasion and had suffered a termination of a pregnancy, which is referred to in the custodian's notes which I have recorded above. I will return to the position of her health when considering any issues around Article 8 of the Convention.

[36] Turning to the question of the requirement of Mr Makos to remain in Poland during the period referred to by the conditions of his release in respect of the conviction offences, the same extracts from the notes of the custodian in and around November, December 2005 and February 2006 record the fact of the ban that had been placed on Mr Makos leaving the country in respect of the Miastko incident. The custodian specifically notes in February 2006 that his failure to return would result in a failure to fulfil the obligations to appear when summonsed. She then recorded that Mrs Makos:-

"Showed concern about the prolonged stay of the convict abroad, and that he would possibly not return. They had jointly taken up a credit in the amount of PNN 270,000. Additionally, the probationer had other credit. She is concerned about repaying the debt. She is nervous and concerned about the future. I will stay in contact with the probationer's office".

[37] On 16 March 2006 during a conversation with Mrs Makos the custodian established as follows namely:-

The convict is on medical leave which excuses his non-performance of duties resulting from the police supervision;

On 13 March he visited his family and was planning to get interested in a boarding house in Valcz;

On the occasion of upcoming visit at home the convict shall appear for a conversation at the court.

[38] However on 4 May 2006 during a conversation with Mr Makos' mother the custodian was advised that they, that is the Mr Makos's family, have no contact with their son. She referred to the visit in March 2006 and the fact that Mrs Makos and her son were living with them. In July 2006 again in a conversation with Mrs Makos, senior, held at their home she told the custodian that Mr Makos was not staying at their home and that she did not know his current whereabouts. She advised that her son had arrived at home in April 2006 and left with his wife and daughter. She stated that she did not know where they were, but said that he was going to remain "hiding from the proceedings underway until he becomes excluded from the proceedings, and separate examination is instituted. He also counts successful termination of the probation period relating to the subject matter."

[39] In the light of the absence of any contact for many months between the custodian and Mr Makos she issued the necessary summons in the court.

[40] I find that this evidence, which is persuasive, sits very uncomfortably with the evidence that I was given by Mr and Mrs Makos and by Mrs Makos senior. I am not satisfied on the balance of probabilities that they informed the probation officer where Mr Makos was residing, let alone what his address in Northern Ireland might be. I am not satisfied on the balance of probabilities that Mr Makos had any intention of returning to Poland to deal with any of the matters before the court on a voluntary basis. I am satisfied that by April 2006 when he returned to take his wife and daughter out of Poland his intention was to remain out of Poland – perhaps for the reasons given by Mrs Makos to the custodian, namely the difficulties in which his business then found itself and the amount of debt that he had accumulated.

[41] I found the evidence of Mr Makos unconvincing, and in the context of the ban imposed in respect of the Miastko incident that it was misleading, and I believe deliberately misleading. I want to make clear that I fully appreciate and understand the position relating to Mrs Makos. The events in Poland were obviously of very great concern to her, and she had to cope with them in the absence of her husband over a period of time. This clearly had an effect upon her health. That is reflected both in the loss of her baby and also the attempted suicide, if not twice, certainly once. However all of these matters stemmed as a result of the entire background relating to the actions, often criminal actions, of Mr Makos and the difficulties surrounding the business that they were attempting to run. Any removal from situations such as I have described would clearly be of tremendous advantage to the health and wellbeing of the extended family of any person sought by a Requesting State. Any removal to an environment free of debt and free of worry will always be an attraction to anybody seeking to avoid their responsibilities by leaving a country and moving somewhere else. It cannot be the case that such a consideration on its own can then argue that the person should not be returned to the Requesting State.

[42] Taking all of these matters into account I am dissatisfied with the picture painted to me particularly by Mr Makos. He was aware of the conviction offences which were upheld in a court of appeal, which made a small alteration to the length of the sentence to be imposed. He knew that there were other offences which were to be the subject of a retrial. He knew there was a ban on him leaving the country in relation to the Miastko incident imposed in and around September/November 2005. Mrs Makos' evidence in relation to her health is accepted by the court but it does not accept the evidence given by her that she told the probation officer where her husband was living. Instead the court finds that the notes of the custodian, made after each meeting, are highly persuasive to the contrary. The same consideration relates to Mrs Makos senior.

[43] I therefore conclude that Mr Makos deliberately set about leaving Poland in or towards the end of 2005 for the purposes of evading any further interaction with the criminal justice system in Poland, whether that arose out of the conviction offences, the accusatory offences or the investigation in relation to the Miastko incident in September/November 2005. I am satisfied that he left knowing full well he was banned from leaving the country, and the continuing obligation to engage with the custodian.

At one point it was argued that by returning his passport to him the Polish authorities had agreed that he could leave the country. There is no factual basis for such an assertion and indeed all other facts, including the ban militate against such a view.

I am satisfied that the custodian was never informed of his intention to leave Poland and to take his family with him, nor that he would return for the proceedings if he was advised of them.

[44] Instead Mr Makos had an obligation to continue to conform to the court's directions and the ban that had been placed on him. He had an obligation to keep in touch with the court in accordance with his bail terms and advise them of any change of address – which he singularly failed to do. Can it be for one moment doubted that if the custodian and the court had been aware, as was claimed by Mrs Makos and Mrs Makos senior, as to the whereabouts of the Requested Person, that they would not have taken steps to inform him of any hearing? Such a submission is an affront to common sense and logic. The fact that Mr Makos' father stated that he didn't know where they were, at a time when and Mrs Makos senior were living together, is just further evidence of the false basis upon which Mr Makos seeks to construct his case as to approval of his leaving the country by either the custodian or the court.

[45] It is therefore with regret that I have to say that not only has Mr Makos failed to satisfy me on the balance of probabilities on the facts as he puts them forward, but I am also highly sceptical if I can put any weight on his evidence and that of his mother in relation to any of the matters which I require to decide, whilst at the same time acknowledging that I am prepared to accept some of the evidence of Mrs Makos in relation to her own health. In expressing that scepticism on the part of the evidence of Mrs Makos and Mrs Makos senior let me make it clear that I can fully understand the trauma and difficulties that events such as this place on innocent parties whose motives I am quite certain are protective towards someone that they love. Nevertheless their failure to assist the court in giving an accurate picture unfortunately they have the effect of undermining other aspects of their evidence.

CONCLUSIONS:

[46] I am now required to turn to the various arguments put forward on behalf of Mr Makos as to why he should not be extradited.

(a) The passage of time – sections 11 and 14 of the Act.

The words "unjust" and "oppressive" were considered in Kakis –v- Government of the Republic of Cyprus [1978] 1WLR 779. It was held that "unjust" is directed to the risk of prejudice to the defendant and the conduct of his trial in the Requesting State, and the word "oppressive" in the formulation is directed to the hardship to the defendant where he to be extradited which results from changes in his circumstances which have occurred in the period to be taken into consideration.

The relevant period for the purpose of this court is from February 2006 when the defendant left Poland until today's date, a period that can be shortened to some extent to in and around April 2006 when his family left to come to Northern Ireland until today's date. This is a relatively short period of time. The relevant personal circumstances of the defendant since he came to Northern Ireland are that has engaged in work, as has his wife. Their son has gone to school and is settled in that school. Mrs Makos is now pregnant once more.

As regards the test of it being unjust to extradite Mr Makos I find in relation to the accusatory offences that no evidence was produced whatsoever to indicate that the defendant would not be able to put forward his case in a manner which would allow for a fair trial. Therefore no argument has been put to the court in respect of these offences that would prevent his extradition on that ground. As regards the conviction offences again no argument was given to the court to find it would be unjust to return Mr Makos.

As regards the test of it being 'oppressive' one has to look to the "cradle of events" as it is described by Lord Scarman in Kakis. During any time spent in another jurisdiction any Requested Person begins to build up a new way of life in that new jurisdiction. However in this case there is nothing unusual that would allow the court to regard it as oppressive to return Mr Makos to Poland. The court cannot give any weight such as could meet a test of it being oppressive for a job to be given up or for a young person to move to another school. Many events happen in people's lives which can give rise to them moving house, such as a change of employment. None of these factors could be regarded as giving rise to oppression in the event of Mr Makos being extradite. I find nothing in the circumstances in the last two or three years since their arrival in this jurisdiction which could justify a refusal to extradite Mr Makos. I will return to his wife's health when addressing Article 8 of the Convention in the context of Section 21. However when considering Section 11 and 14, (the passage of time) I do not believe that an improvement in her health would allow me to exercise my powers to refuse extradition.

As regards the final factor which was put forward on behave of Mr Makos under the heading of "oppression", namely that he had an expectation that the Polish authorities agreed to him leaving Poland as indeed did the custodian, I have rejected his evidence which formed the basis of that argument.

[47] I have therefore concluded that both in respect of the accusatory offences and the conviction offences it would not be unjust to extradite Mr Makos to Poland; and that there is nothing oppressive in extraditing him in relation to either the accusatory offences or the conviction offences.

[48] Under the provisions of Section 11(4) of the Act, where I have decided the question in section 11(1) in the negative, I must proceed under Section 20 in relation to a person who is alleged to be unlawfully at large after conviction of the extradition offence. Under Section 20(1) I am obliged to decide in respect of the conviction offences if the person was convicted in his presence. I confirm that he was present both in relation to the original conviction and in relation to the imposition of the appeal which reduced his sentence. I confirm that he was not present at the time of the imposition of the balance of the term on 17 October 2006 but I confirm that I have decided in accordance with Article 20(3) that he deliberately absented himself from that trial by leaving Poland in the face of a ban, and by not making available details as to where he was living for the purposes of serving any summons.

(b) Section 21 – Human Rights

[49] Accordingly in respect of the conviction offences I proceed under Section 20(4) to consider the provisions of Section 21 of the Act. In relation to the accusatory offences I am obliged under Section 11(5) to proceed to Section 21 having decided the questions in Section 11(1) in the negative.

[50] For the reasons that I have stated I do not believe that the defendant has raised substantial grounds in line with the test in Rozaitiene to persuade the court that his Article 2 and 3 Convention rights, or any of his Article 6 rights, would be breached by his return to Poland whether in relation to the accusatory offences in particular, or in relation to the conviction offences.

[51] That then leaves the question of the defendant's Article 8 Rights. I have looked at this in two ways. First the impact on the family unit as such; and secondly in relation to the impact on the physical or mental condition of Mrs Makos.

[52] In relation to the private and family life of the Makos family it is argued that to return Mr Makos to Poland would affect the rights not just of himself but of his partner and child (and unborn child). Any move would of course result in the disruption of the family life. However the 2003 Act, enforcing the provisions of the Framework Decision, are a proportionate response to such breaches given that they have the legitimate aim of enforcing the criminal law against those who have transgressed against it. That is the situation whether a person stands trial and is required to serve a sentence in Northern Ireland where he will be apart from his family.

The question is, is there something truly exceptional in this case? It is common place that the circumstances in which Mr Makos finds himself would be the same for anyone who had established a substantial private life in this country with young children. In Slivka –v- District Court of Prague, Chez Republican [2008] EWHC 595 (Admin) the appellant arrived in the United Kingdom in March 1999 and claimed asylum. His partner and two young children arrived shortly thereafter. That asylum claim was refused, but in June 2004 leave to remain was granted and members of his wider family settled in the United Kingdom. In June 2007 the district court of Prague issued a European Arrest Warrant seeking this extradition to serve the remaining prison sentence which had been passed in 1998. Therefore in that case not only a very substantial period of time had passed, but the family had settled and integrated into the community and an extended family had arrived and similarly settled. Nevertheless it was held that that did not provide a defence to extradition.

[53] Mr Makos has failed to demonstrate anything exceptional, let alone truly exceptional, in the circumstances of this case to justify taking a different view and therefore this aspect of his Article 8 Rights does not afford him a bar to the application for extradition.

[54] I then turn to the question of the health of Mrs Makos. In addressing this I have first considered the authorities which might address the mental and physical health of the person whose extradition is to be sought, since in some respects that is just as direct, if not more direct, impact on the rights of the family.

[55] In R (Bermingham) –v- Director of the Serious Fraud Office [2006] EWHC 200 (Admin) paragraph 118 Laws LJ said:

"Assuming compliance with all the relevant requirements of domestic law, the issue is likely to be one of proportionality; is the interference with family life proportionate to the legitimate aim of the proposed extradition? Now, there is a strong public interest in "honouring extradition treaties made with other States" … it rests in the value of international co-operation pursuant to formal agreed arrangements entered into between Sovereign States for the promotion of the administration of criminal justice. Where a proposed extradition is properly constituted according to domestic law of the sending state and the relevant lateral treaty, and its execution is resisted on Article 8 grounds, a wholly exceptional case would in my judgment have to be shown to justify finding that the extradition would on the particular facts be disproportionate to its legitimate aim.

[56] Evidence was given in relation to the health of Mrs Makos based on her General Practitioner's notes and records from Poland, a mental health report from Poland, her General Practitioner's notes and records in Northern Ireland, and a medical report from Dr Ian Bownes, consultant forensic psychiatrist dated 26 June 2008. Dr Bownes also gave evidence to supplement his written report.

[57] I have already referred to some of the background to Mrs Makos' health while she was in Poland. This has been substantiated from the reports that I have received both in relation to what appears to have been an attempt on her life and also the loss of her baby in September 2005. This also was set against the background where she had from time to time required psychiatric assistance. Dr Bownes' report has the advantage of being contemporaneous, but he also had been provided with copies of translated medical notes between February 2002 and March 2006, supplemented by the General Practitioner's notes from Northern Ireland since that date. I am therefore satisfied he has a very full detailed background on which to advise the court as to his conclusions on Mrs Makos' mental health.

[58] He confirms that she had displayed evidence of clinically significant mood disturbance in the context of worries and fears following her daughter's birth in January 2003, and these also included worries regarding her husband's safety.

He continues:

"The difficulties presented at that time had been considered as consistent with a Reactive Depressive Disorder that required her admission to a psychiatric unit and treatment with anti-depressant medication, and Mrs Makos has been advised to continue to engage with mental health professionals when she engaged in taking a deliberate drug overdose in December 2004".

He then continues:

"Individuals who have previously displayed a clinically significant psychological reaction to situational stress are particularly vulnerable to further mental health problems. The level of subjective distress objectively evidence at the current interview, and the nature of the fears and worries she expressed on related themes were such that, in my opinion, her husband's enforced return to live in Poland in the circumstances described would inevitably has significant deleterious effects on Mrs Makos mental wellbeing. It is apparent from mental records that Mrs Makos had previously engaged in taking a deliberate drug overdose, it is highly probably that Ms Makos would engage in harming herself deliberately in the context of subjectively distressing feelings or difficult life circumstances that she feels unable to cope with or resolve."

[59] In his evidence Dr Bownes supplemented these opinions by stating that with her husband being required to serve a prison sentence in respect of the custodial offences Ms Makos would feel even more exposed, and therefore there would be a real possibility of clinical depression and possible self harm. He confirmed however that medical attention is available in Poland, in line with that received by Mrs Makos in the past.

[60] When asked if Mrs Makos could or would remain in Northern Ireland if her husband was returned to Poland it was indicated this was unlikely since there is no family structure in Northern Ireland and she would be isolated also by her difficulties with English. She does have family support in Poland. She lived with her husband's parents for some time in 2005 and 2006, although I note that even with that protection she was admitted to hospital on 5 December 2005 "due to taking antidepressants approximately four hours before hospitalisation". However she was discharged the next day "in good condition". I make the point only in the context that, even with the support of Mr Makos' family, these difficulties nevertheless existed. I therefore have to consider whether or not this fragility and the probability of her condition deteriorating should her husband return to Poland are sufficient to support a refusal of the application under the Article 8 Rights of Mr Makos in the context of the effect on Mrs Makos.

[61] The concept of private life in Article 8 is broadly defined – see Niemietz –v- Germany 16 EHRR 97. It includes not only personal factors, but also individual relationships with others. Family life extends beyond the formal relationships created by marriage, and includes, for example, relationships between a parent and an illegitimate child – see Marckx –v- Belgium 2 EHRR 330.

In Cookeson [2001] EWHC (Admin) 149 the person whose extradition was sought was the sole carer for his mentally ill son. Evidence was given that the boy's deteriorating condition would worsen if his father was extradited. The case is somewhat complicated by the fact that the Requested Person and his son had been in the United Kingdom for a considerable period of time, with the result that the need for care during that time had progressively increased. As a result there had been a significant increase in the need for care with the father being the only person other than statutory authorities who could take care of him. His son was a 32 year old man with a 15 year history of serious mental illness which was characterised by severe impairment in all four mental domains affected by this psychotic disorder. Treatment, which had been poorly adhered to before, had been arrested and improved in the 18 months prior to the court hearing. However he would remain severely disabled for the rest of his life, and even with optimal treatment would continue to show "severe, fluctuating impairments and disturbance". The court expressed considerable reservations in coming to its conclusion that since there was a very real risk that the son would suffer significantly if his father was not available to provide care for him, a risk which was clearly unquantifiable, and whilst it was possible there may be other ways in which care could be provided for him, it was held that the removal of the applicant would cause oppression to the son, and through him to his father and he was released.

[62] The case is authority for considering the position of a third party within that widened definition of 'family', but also shows that substantial evidence requires to be proved when considering if to extradite the Requested Person would a breach of Article 8 of the Convention.

[63] No medical evidence was called on behalf of the Requesting State to rebut the evidence of Dr Bownes both as to the diagnosis of the condition of Mrs Makos and the fact that she had the repressive anxiety disorder before she left Poland. It is incontrovertible that and around December 2005 this lady was being treated for what might appear to have been an overdose of antidepressants, against a background where there had been an attempt on her life some years earlier. There is no evidence to controvert the proposition that conditions to which she would return in Poland would be different to those when she left.

[64] There remains one further concern. Dr Bownes in his opinion states:-

"Her husband's enforced return to Poland in the circumstances she described would inevitably have significant deleterious effects on Mrs Makos' mental wellbeing".

He refers to those deleterious effects as being both significant and inevitable, not possible and not probable.

He then continues:-

"It was apparent from medical records that Mrs Makos had previously engaged in taking a deliberate drug overdose. It is highly probable that Mrs Makos would engage in harming herself deliberately in the context of subjectively distressing feelings or difficult life circumstances that she feels unable to cope with or resolve".

That is, in Dr Bownes's opinion, uncontroverted, that it is highly probable that she would engage in harming herself deliberately.

[65] I am satisfied that Mrs Makos has no basis for staying in Northern Ireland should her husband return to Poland. She is in Northern Ireland because her husband is here. She has little English and no support over and upon what he is providing. Whilst she has worked for some time whilst in Northern Ireland, she is now pregnant and that obviously will carry with it restrictions in terms of any support. The birth of her first child gave rise to considerable difficulties in 2003 with the effects which I have described. With the potential the birth of her second child at some stage during the immediate extradition a recurrence of those effects cannot be discounted. There is nothing to indicate at present that in the context of stresses within her life, something similar to her past actions may well arise in the future, although I accept that is speculative. However there are grounds clearly for concern. On her return to Poland Dr Bownes could not be more explicit as to the dangers that this lady faces at her own hand given what she will find in Poland notwithstanding the family support.

[66] Before giving my conclusion on this latter consideration under Article 8 of the Convention I turn to the final argument - that to extradite Mr Makos would be an Abuse of Process. On the facts that I have determined them I find no grounds for this whatsoever. Mr Makos removed himself voluntarily; indeed he deliberately absented himself and made no enquiries as to ongoing proceedings whether in respect of the accusatory offences or the conviction offences. I am satisfied that he was fully aware of his obligations to continue to engage with the custodian, and that he was fully aware of the bar on him leaving the country as a result of the Miastako incident. Mr Makos has no grounds whatsoever for claiming that the Polish Authorities are abusing the extradition process in seeking his return. I am satisfied that they never once gave him any reason for believing that he was free to leave the country. Mr Makos is not a stupid man. In my opinion he fully recognised his status, but chose to leave.

[67] There is only one possible ground for the court to refuse the application and that is for a breach of the Article 8 rights of Mr and Mrs Makos. I return to the judgement of Higgins LJ in Rozaitiene. Has the Requested Person established evidence capable of proving there are substantial grounds for believing there is a real risk that his Convention rights would be violated? In this case I have determined that the medical evidence is such as it raises that real risk – that to use the formula in Cookson, that there is a very real risk, if not inevitable risk that his wife would suffer significantly if her husband was not available to care for her, accepting as in Cookson that the risk is not quantifiable. Indeed in this case, contrary to Cookson there appears to be no other way in which her proper care and effective protection can be provided in his absence. The Requesting State has produced no medical evidence to dispel any doubts arising from the evidence of Dr Bownes. In those circumstances I have decided that I should refuse the application.

[68] I make this decision in the knowledge that Mr Makos has committed serious offences and that the accusatory offences are also serious. Nevertheless the consideration of Convention Rights is not a balancing exercise. If the risk of their violation is significant, and the effects of such violation could give rise to a risk to life or health, then Convention rights take precedence.

ANNEX:

OFFENCES:

1. This warrant relates to in total: 6 (six) offences (Sebastian Makos has been accused of two offences, and he has been sentenced with a final judgment in relation to four offences).

2. Description of the circumstances in which the offence(s) was (were) committed.

a/ Sebastian Makos has been accused of the following offences:

I. In the period of May through June 2002 in Warsaw, acting jointly with Robert Pasztelaniec, Sebastian Makos demanded of Ryszard Gordziej, under the threat of death of committing another crime, that he pay undue financial commitments, and he caused Ryszard Gordziej to release to him a Jaguar automobile whose total value was PLN 170,000, a property of Maciej Rogalski and BIG Bank Gdanski, by which he acted to the detriment of Ryszard Gordziej, Maciej Rogalski and BIG Bank Gdanski – Bank Millenium Wroclaw Branch.

II. In June 2002, acting in sort intervals, with aforethought malice and aiming at gaining a financial benefit, on the road between Debnica Kaszubska and Budowo, along with Robert Pasztelaniec, he threatened Cezary Staciwa with a violent attempt against life, health or property, by which he tried to cause Cezary Staciwa to adversely dispose of his property by paying to Sebastian Makos 40% of income of Przedsiebiorstwo Wielobranzowe "Exeter" w Pile – Klub Nocny "Mesalina" v Stupsku [Multi-Branch Enterprise "Exeter" in Pila – Night Club "Mesalina" in Slupsk – translator's remark], constituting the amount of PLN 70,000, but he failed to achieve his goal for the injured party refused to obey it, and subsequently, at "Pod Kluka" restaurant in Slupsk Sebastian Makos threatened Cezary Staciwa with a violent attempt against life, health or property and demanded that Cezary Staciwa pay Sebastian Makos 40% of property of Przedsiebiorstwo Wielobranzowe "Exeter" w Pile – Klub Nocny "Mesalina" w Slupsku [Multi-Branch Enterprise "Exeter" in Pila – Night Club "Mesalina" in Slupsk – translator's remark], constituting the amount of PLN 70,000 but he failed to achieve his goal for the injured party refused to obey it, by which he acted to the detriment of Cezary Staciwa.

b/ Additionally, Sebastian Makos has been sentenced for the following offences:

I. On the night of 30 May 2002 at the Night Club "Mesalina" in Slupsk, acting jointly with Robert Pasztelaniec, who used a dangerous instrument in the form of a knife to hit Zbigniew Lukojko with several blows, including the blow on the head, right upper limb and right lower limb, which inflicted incised wounds causing malfunction of the affected organs for a period of less than 7 days, Sebastian Makos subsequently misappropriated money in Zbigniew Lukojko's possession in the amount of not less than PLN 4,000, by which he acted to the detriment of Zbigniew Lukojko and Cezary Staciwa, for which the offences Sebastian Makos was sentenced to 3 (three) years' imprisonment.

II. On the night of 30 May 2002 at the Night Club "Mesalina" in Slupsk, in an attempt to force Katarzyna Goraj to a sexual intercourse by taking his penis in her mouth, he threatened her to take her life simultaneously putting a knife to her throat, but he failed to attain his goal due to victim's resistance, for which the offence he was sentenced to one year imprisonment.

III. On 13 October 2002 in Slupsk, acting jointly and in unison with Robert Pasztelaniec, Rafal Chechla and Piotr Mlinski, by using violence with respect to Zbigniew Diegner consisting in hitting him on his face, as well as threatening him with a gun-like looking instrument by holding it to his head, Sebastian Makos forcibly entered the Night Club "Mesalina" in Slupsk, and subsequently seized keys of the entrance crating from Zbigniew Diegner and forced him to stay in an armchair, for which he was sentenced to 6 months' imprisonment.

IV. In the period of 13 through 30 October 2002 in Slupsk, Sebastian Makos was attempting at inducing Agnieszka Misiurek to give false testimony and present a course of events of 13 October 2002, subject to preparatory proceedings carried out by District Prosecutor's Office in Slupsk, file reference 3 Ds. 109/02, in a manner advantageous to the suspects Sebastian Makos was inducing Agnieszka Misiurek to give false testimony by telephone, and in exchange he offered a financial benefit in the amount of PLN 10,000 for which the offence he was sentenced to 10 (ten) months' imprisonment.

Instead of the individually imposed penalties of imprisonment, an aggregate penalty of 3 (three) years and 4 (four) months' imprisonment was awarded.

3. Nature and legal classification of the offence(s).

a/ The offences Sebastian Makos has been accused of belong to the category of offences against property and they bear attributes of offences covered by the following provisions of the Penal Code: I. – Article 282 of the Penal Code, II. – Article 13 1 of the Penal Code in conjunction with Article 282 of the Penal Code and in conjunction with Article 12 of the Penal Code;

b/ The offences Sebastian Makos was sentenced for belong to the following categories:

I. offence against property and health, and it bears attributes of offences covered by Article 280.2 of the Penal Code in conjunction with Article 157.2 of the Penal Code in conjunction with Article 11.2 of the Penal Code.

II. Offence against sexual freedom and good morals and it bears attributes of offences covered by Article 13.1 of the Penal Code in conjunction with Article 197.1 of the Penal Code.

III. Offence against freedom and it bears attributes of offences covered by Article 193 of the Penal Code.

IV. Offence against jurisdiction and it bears attributes of offence covered by Article 18.2 of the Penal Code in conjunction with Article 233.1 of the Penal Code in conjunction with Article 12 of the Penal Code.