APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Drummond Young Lord Wheatley	[2012] HCJAC 41 Appeal No: XC470/11 OPINION OF THE COURT delivered by LORD DRUMMOND YOUNG in APPEAL by WŁODZIMIERZ WŁODARCZYK Appellant; against THE LORD ADVOCATE (representing the Republic of Poland) Respondent: _______

Appellant: Shead; Wilson McLeod, Edinburgh

Respondent: Drummond, Q.C. (for the Lord Advocate); Crown Agent

29 March 2012

[1] The Republic of Poland has made a request, by means of a European arrest warrant, for the return of the appellant to face trial there on a charge of robbery. Following an extradition hearing, on 30 May 2011 Sheriff MacIver, the Sheriff of Lothian and Borders at Edinburgh, made an extradition order in terms of section 21 of the Extradition Act 2003 ordering the appellant's surrender to the Republic of Poland. That decision has now been appealed under section 26(1) of the Extradition Act 2003.

[2] The background to the case is set out in the Sheriff's report. The request of the Republic of Poland is for the return of the appellant to face trial on a charge of robbery that he is alleged to have committed in the city of Wrocław on 25 March 2004; the allegation is that he was one of the parties to an incident in which a woman's handbag was snatched, his involvement being the removal of the handbag from the scene of the incident. As part of the return request, Poland seeks to have enforced a preventative temporary arrest warrant for a term of three months from the point of the appellant's return to Poland. The appellant has been on bail in Scotland since the point of his arrest on the European arrest warrant. That arrest occurred in August 2010, and the delay until the hearing before the Sheriff in May 2011 was caused by the fact that the appellant had outstanding criminal cases in Scotland; no extradition hearing can lawfully take place until such outstanding domestic matters are resolved.

[3] On 30 May 2011 the Sheriff of Lothian and Borders made an extradition order in terms of section 21 of the Extradition Act 2003, ordering the appellant's surrender to the Republic of Poland. The appellant has appealed against that decision to the High Court on two grounds. First, it is alleged that the time that has passed since the events relied on in the warrant makes it oppressive to order the return of the appellant to Poland; that argument is based on section 14 of the Extradition Act. Secondly, it is claimed that under section 25 of the Extradition Act it would be oppressive to extradite him on account of his mental state, in particular the risk of self-harm or suicide. As a separate aspect of this argument, it was alleged that the appellant's extradition would involve an unwarranted interference with his right not to be subjected to inhuman or degrading treatment or punishment in terms of article 3 of the European Convention on Human Rights and with his right to respect for private and family life in terms of article 8 of the European Convention on Human Rights.

Passage of time

[4] The first ground on which the appellant has appealed to the High Court is that it would be oppressive to extradite him owing to the passage of time since the events relied on in the arrest warrant. The relevant provision of the Extradition Act 2003 is section 14, which is in the following terms:

"A person's extradition to a category 1 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

(a) committed the extradition offence (where he is accused of its commission)

(b) become unlawfully at large (where he is alleged to have been convicted of it)".

[5] In cases where section 14 is invoked the chronology is, as the Sheriff indicated, generally significant. In the present case it is alleged that a crime was committed on 25 March 2004 and that, following upon investigative procedures, the appellant was brought to trial in Poland in July 2005. The Sheriff finds that the appellant was aware of the trial, and indeed was present in court, and in the evidence which the appellant gave at the extradition hearing he conceded that he knew that the case was put off on that date because of the unavailability of witnesses. The appellant further accepted in evidence that the left Poland to come to the United Kingdom in November 2005, and that he did not give a change of address or new location to the Polish court, although he was obliged to do so by the relevant Polish bail conditions. The Polish proceedings came back for a trial in June 2006, but at that time the authorities were unable to serve papers on or contact the appellant, and a non-appearance warrant was issued for his arrest. When steps were taken to enforce the warrant within Poland, it became apparent that he was no longer in the country. The appellant was subsequently traced to an address in the United Kingdom, and the Polish warrant was converted into a European Arrest Warrant in September 2009. After translation and various procedures that warrant was transmitted to the United Kingdom and was accepted for enforcement by Crown Office in July 2010.

[6] The Sheriff notes that the overall time involved in the present case is shorter than in any of the reported cases where the passage of time has led to an unacceptable delay. He further notes that it was conceded at the hearing before him that there could not be an argument in this case that the passage of time caused any problem in relation to the running of a future trial in Poland; it was accordingly conceded that there could not be a claim that it was unjust to return the appellant, but the argument was rather restricted to a contention that it would be oppressive. That argument was considered and rejected by the Sheriff.

[7] Before the High Court the appellant maintains that the Sheriff was wrong to reject that argument on, essentially, three separate grounds. First, it is said that the Sheriff erred in defining the appellant as a fugitive at the time of his departure from Poland as a matter of law. Secondly, it is said that the Sheriff was in error in his treatment of a visit that the appellant paid to a Polish court in May 2009 in order to obtain a disclosure certificate. It is contended that the Sheriff ought to have held that that visit provided a basis for the appellant to conclude that proceedings had been discontinued. Moreover, it is said that the Sheriff erred in holding that there was no culpability on the part of the Polish state through inactivity which contributed to the passage of time; the appellant had lived openly throughout his time in Scotland; he had attended at a Polish court in May 2009; and the Polish authorities ought to have discovered his whereabouts. Thirdly, it is said that the appellant had gone through a radical change in lifestyle as a result of his move to Scotland. He had been able to obtain work, benefiting from an absence from the prejudice towards his mental health condition which had prevented him from getting work in Poland. The appellant's family had moved to Scotland and settled here and his children were at school in Scotland. The appellant had continued to be in employment, although he had been off work during the previous year due to his mental illness. These facts, it was said, illustrated the effect that the passage of time had had upon the appellant.

[8] On the first of these grounds, the Sheriff recorded that the appellant had given evidence to the effect that he had left Poland in about November 2005 without any inquiry and with little thought about his outstanding trial. He knew that when it was adjourned there was no question of its being dropped, and that no new date had been assigned for it then. He made no inquiry about it thereafter, and simply hoped that and it would not be a matter which would follow him to the United Kingdom. On the basis of those facts, which the Sheriff described as a "very common set of circumstances", he concluded that there was no doubt that the appellant was in strict legal terms a fugitive from Polish justice during that time. He remained a fugitive from justice thereafter since he did nothing to inform the Polish authorities at any stage about his situation or to inquire about surrender on the warrant that they had issued in June 2006. On the basis that the appellant was correctly regarded as a fugitive, the Sheriff concluded that he was the author of his own misfortune in terms of delay and could not, under existing case law, rely with any force on section 14.

[9] In relation to the second ground of appeal, the Sheriff records that the appellant gave evidence that he had travelled to Poland in 2009 for the purpose of attending a family funeral. The Sheriff was prepared to accept that possibility. He considered, however, that the appellant's evidence about the steps that he then took in Poland was dubious, and he had the impression that the appellant was attempting to hide relevant information from the court. The appellant's wife also gave evidence, which was different from the appellant's, and the Sheriff thought that this cast serious doubt on the appellant's credibility in relation to one particular matter. In Poland it is possible to visit a police station personally and request that a document be issued by the Central Authority in Warsaw to certify the applicant's criminal record, including any outstanding charges. The appellant produced such a document, dated May 2009, at the hearing before the Sheriff. This document did not refer to the incident that is the subject of the present proceedings. It indicated on its face that when it was requested the appellant had given an address in the city of Bydgoszcz. In evidence, however, the appellant had said that he had gone to his local police station in Toruń, his home town. The two towns are approximately 50 miles apart, and the Sheriff thought that in Bydgoszcz the police would be unlikely to know the appellant, whereas in Toruń they might well know him. The Sheriff concluded that he could not be certain what the appellant had done when he obtained a certificate. Moreover, the appellant did not suggest that the certificate in question was obtained for the purpose of checking whether or not he was a wanted person but was rather obtained for the purpose of setting out his past criminal record for an employer. On that basis the Sheriff considered that the document of May 2009 was virtually valueless as evidence of the position of the Polish authorities. In any event, that document did not go any way towards establishing any reasonable grounds for the appellant to believe that the robbery charge that he faced when he left Poland was no longer outstanding. In particular, the Sheriff concluded that he had no reason to believe that the appellant could properly have any grounds for thinking from May 2009 onwards that the Polish authorities had discontinued proceedings against him. Moreover, in cross-examination the appellant stated that he only went to the police station to obtain the previous conviction disclosure form, and never intended to inquire about the outstanding arrest warrant. He stated that he had not thought about it and agreed that he just hoped that it had gone away.

[10] In relation to the third ground of appeal, the Sheriff noted that the Polish criminal record certificate indicated that his last conviction had been in 1996, and that he appears not to have been in any other trouble, other than the allegation that is the subject of the present proceedings, after his release from a prison sentence in August 1999. The appellant had obtained gainful employment in Scotland and worked from about June 2006 until he stopped working a few months prior to his arrest on the European arrest warrant. He is currently under treatment for a mental health condition; that situation had begun when he was in Poland, although in evidence the appellant indicated that he did not work during his time in Poland. The appellant is a married man with five children and had been married for 10 years before he moved to Scotland. Thus his family situation cannot be regarded as a new matter that has arisen since he came to Scotland; only the youngest of the five children was born after he arrived in the United Kingdom. From the point of view of the appellant's wife, the Sheriff stated that there had been an improved situation since she moved to Scotland to join the appellant in 2006, largely on account of improved finances. Nevertheless the Sheriff considered that there was nothing unusual in that. In many cases involving extradition the person concerned's normal settled life may be disrupted, but that does not mean that the passage of time renders extradition unjust or oppressive for the purposes of section 14: Allen v Lord Advocate, [2010] HCJAC 74. Overall, the Sheriff expressed the opinion that the test for oppression is a high one and it required to be balanced against the international obligations of countries that were parties to extradition agreements. The Sheriff considered that the circumstances of the appellant fell very far short of the criteria for oppression.

[11] In our opinion the appeal against the Sheriff's decision on the ground of oppression resulting from delay must fail. The applicable legal principles are reasonably clear. Section 14 of the Extradition Act 2003 bars extradition in cases where it is unjust or oppressive. The word "unjust" is directed to the risk of prejudice to the accused in the conduct of the trial: Kakis v Republic of Cyprus, [1978] 1 WLR 779, per Lord Diplock at 782H. That is not argued in the present case. "Oppressive", by contrast, is concerned with changes in the circumstances of the accused that have occurred during the period since the accused is alleged to have committed the extradition offence: ibid. That is the argument advanced in the present case. In assessing any change of circumstances, however, delay in the initiation or conduct of extradition proceedings that is brought about by the accused's fleeing the country, concealing his whereabouts or evading arrest cannot be relied upon as a ground for holding extradition to be either unjust or oppressive; in such cases any difficulties that the accused may encounter as a result of the delay due to such causes result from his own acts: ibid at 783A-B.

[12] Consequently the critical question in applying the concept of oppression is whether extradition would cause hardship as a result of changes in the accused's circumstances during the period between the date of the alleged offence and the date of the request for extradition. In considering whether there has been such a change of circumstances, it is immaterial that the accused has gone about his ordinary life in the hope that his extradition would not be sought, and it is immaterial even if that hope increases as time has gone by: Campbell v HM Advocate, 2008 SCCR 284; [2008] HCJAC 11, per Lord Nimmo Smith at paragraph [43] and Lord Clarke at paragraph [48]. In such a case it is always open to the accused to surrender voluntarily so that matters may be brought to a conclusion: ibid. In Campbell the appellant had been resident in Scotland for a long time; he lived with his family and was in regular employment. He was interviewed in Scotland by a French police officer in connection with the commission of an extraditable offence, and was cited to appear for trial in France in May 2002. He then obtained legal advice from Scottish and French lawyers to the effect that he should not attend for trial in France. The appellant had formed the view that extradition was unlikely and hoped that the matter would not be pursued. He was nevertheless convicted in absence in France in or about November 2002. In November 2005 he was arrested on a European arrest warrant that turned out to be invalid, and on a valid European arrest warrant in November 2006. The sheriff found that the appellant had deliberately absented himself from trial in France and that his extradition would not be unjust or oppressive by reason of delay. Extradition was ordered, and the High Court upheld this decision. Nothing that the accused in that case had done could be said to involve material alteration of his position in the belief that the French authorities would not seek his extradition.

[13] The significance of an accused's fleeing a jurisdiction where he faces criminal charges, and the relationship between such flight and the actions of the state requesting extradition, were considered further by the House of Lords in Gomes v Government of Trinidad and Tobago, [2009] 1 WLR 1038. In that case Lord Brown of Eaton-under-Heywood stated, at paragraph 26, that if an accused person deliberately flees from a jurisdiction in which he has been bailed to appear it does not lie in his mouth to suggest that the requesting state should share responsibility for the ensuing delay in bringing him to justice because of some subsequent supposed fault on its part. That included losing the file, dilatoriness, or the common case of mere inaction through pressure of work and limited resources. None of these should be regarded as breaking the chain of causation between the accused's own conduct in taking flight and the delay in bringing him to trial. Only a deliberate decision by the requesting state communicated to the accused not to pursue the case against him, or something equivalent, can allow him to assert that the effects of delay were not of his own choice and making. Such an approach was based on considerations of public policy: principally to minimize the incentive for the accused to flee; and secondly to avoid the need to evaluate the degree of fault on the part of the requesting State, a process that was categorized as "invidious (involving an examination of the state's resources, practices and so forth) [and] also expensive and time-consuming": ibid at paragraph 27.

[14] In the present case the Sheriff was clearly correct in holding that the appellant was a fugitive from Polish justice at the time when he left Poland. The appellant was well aware of the outstanding criminal proceedings at that time, and gave them little thought. That does not in any way alter the quality of the act: he left Poland in the full knowledge of outstanding charges. We are further of opinion that the Sheriff was correct in holding that there was nothing in the appellant's visit to Poland in May 2009 that entitled him to conclude that proceedings had been discontinued. At its highest, the appellant's case is that he obtained a certificate from the court in Bydgoszcz, the certificate being issued by the Central Criminal Authority in Warsaw, which did not mention the outstanding charge against him. The argument for the appellant is that, in the light of that omission, he was entitled to conclude that the charge had been dropped. This contention will not stand up to scrutiny because, as the Sheriff points out, the certificate was not obtained in order to discover whether the charge remained outstanding; it was obtained as a statement of his past criminal record for his employer. In these circumstances it cannot be said that the appellant had any reason for thinking that the charge had been dropped or proceedings had been discontinued. Moreover, the appellant agreed in his evidence that he had not inquired about the outstanding warrant when he was in Poland. If he had been genuinely concerned about the charges, the obvious course would be to ask directly. In this connection, we note the statement by Lord Brown in Gomes, at paragraph 26, that "Only a deliberate decision by the requesting state communicated to the accused not to pursue the case against him, or some other circumstance which would similarly justify a sense of security on his part notwithstanding his own flight from justice, could allow him properly to assert that the effects of further delay were not 'of his own choice and making'". The present circumstances come nowhere near satisfying that test.

[15] For the appellant it was also suggested that there had been blame on the part of the Polish authorities through their inactivity during the period between 2004, when the offence was alleged to have been committed, and the request for extradition in 2009. It was said that the appellant had been living openly in Scotland during this period. All that that means, however, is that the appellant did not take positive steps to conceal where he was, but in view of all the possible places where he could have been living within the United Kingdom that was scarcely necessary; finding him would clearly be difficult. So far as the inactivity of the Polish authorities is concerned, as Lord Brown stated in Gomes at paragraph 26, if an accused flees the jurisdiction in which he faces charges he cannot suggest that the requesting state should share responsibility for the ensuing delay because of inaction caused by factors such as pressure of work or limited resources. Such circumstances, which are common, cannot be regarded as breaking the chain of causation between the accused's own conduct in fleeing the country where he faces charges and the delay in bringing him to trial. In the present case all that occurred was delay; no evidence was led to suggest any culpability on the part of the Polish authorities beyond mere delay in seeking extradition. In these circumstances it cannot be said that there was any material cause of the delay other than the accused's own flight from Poland.

[16] The final point taken by counsel for the appellant was that the appellant's circumstances have changed since he moved to Scotland; he had been able to find work, which he had found difficult in Poland owing to his mental illness, and his family had moved to Scotland and settled there. This argument is largely met by the decision in Campbell, where, in the words of Lord Nimmo Smith at paragraph [43], the accused had "continued to live the same life as he has always done: there is no suggestion that he has materially altered his position in the belief that the French authorities would not seek his extradition". That was held insufficient to amount to oppression. In the present case there are two differences from Campbell. First, the appellant had moved to Scotland with his wife and family, whereas the appellant in Campbell had lived in Scotland for many years. We cannot regard that as a valid distinction, however; the move to Scotland is the very act of flight from Poland that has given rise to the need for extradition proceedings. Such an act cannot, for the reasons stated in Kakis, be relied upon as a reason for not returning him. Secondly, the appellant has been able to find work in Scotland, something which he was apparently unable to achieve in Poland because of his mental condition. It was accepted, however, that during the last year or thereby before the extradition proceedings he had not been working. Overall, we do not think that the appellant's ability to find work in Scotland is so significant as to make it oppressive to return him to Poland, especially in view of the fact that recently he has been unable to work. Imprisonment will frequently involve the loss of employment, which is clearly a hardship, but as Lord Nimmo Smith points out in Campbell (at paragraph [43]) hardship for the prisoner and his family is inherent in such a punishment.

[17] We conclude, accordingly, that all of the components of the appellant's argument based on oppression resulting from delay must be rejected.

Appellant's mental health

[18] The appellant's second ground of appeal is based primarily on section 25 of the Extradition Act 2003, which concerns the physical or mental condition of the person in relation to whom a warrant is issued. Section 25 is in the following terms:

"(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".

It was argued for the appellant that there was a high risk that he would attempt to commit suicide in the event of his extradition, and that in those circumstances it was oppressive to return him to Poland. Reliance was further placed on article 3 and article 8 of the European Convention on Human Rights.

[19] At the hearing before the sheriff the appellant gave evidence that if extradited he would commit suicide. Further evidence was available that the appellant had a history of self-harm and attempted suicide. Against that background it was submitted that to return the appellant to Poland would involve an unacceptable risk of suicide, and that it was accordingly oppressive, in terms of section 25(2), to extradite him. It was further submitted that in Poland the appellant would not receive proper treatment for his mental condition. The sheriff held that there was no merit in the argument that the Polish state would be unable to provide proper treatment for the appellant. There was evidence that when the appellant was previously in custody in Poland he had received adequate treatment for his condition, which was the same then as now, and in any event there was a clear presumption that Poland, as a member state of the European Union and a country with which the United Kingdom had an extradition treaty, must be regarded as being able to meet its international and human rights obligations to provide for prisoners an acceptable level of mental health treatment. In relation to the possibility of suicide, the sheriff held that the risk did not appear sufficient to justify refusal to extradite the appellant. There had been no history of suicide attempts or self-harm during the previous six years, and it appeared that proper care could be provided within the Polish prison system to minimize the risk.

[20] The sheriff made an extradition order on 30 May 2011. On 31 May 2011 the appellant was found walking towards the Forth Road Bridge with the apparent intention of jumping off it. No direct evidence was available as to what happened in the vicinity of the bridge, but it seems that the appellant was intercepted and taken to the Royal Edinburgh Hospital, where he was admitted and remained for a period of approximately 11 days. The psychiatrist responsible for his care, Dr Norman Nuttall, recorded that at their first meeting the appellant had described having suicidal ideas, but that his mood and suicidal ideation improved over the next nine days. Dr Nuttall in his report expressed the opinion that the appellant suffered from schizophrenia and episodes of depression, and that he was at significant risk of suicide while subject to the stress of the extradition proceedings. In the light of the incident at the Forth Road Bridge the solicitors acting for both the appellant and the Lord Advocate obtained detailed psychiatric reports on the appellant, and these were made available to the court. The incident at the Forth Road Bridge was clearly of relevance to the appellant's mental condition, and had not been considered by the sheriff. Consequently we ordered that evidence should be led as to the appellant's mental condition in the light of that incident, in order to assess the magnitude of risk of suicide in the event of extradition, and continued the hearing for that purpose.

[21] At the continued hearing evidence was led from two consultant psychiatrists, Dr Ian Dewar for the appellant and Dr Fionnbar Lenihan for the Lord Advocate; in large measure this supplemented the reports that they had previously prepared. There was no significant dispute as to the appellant's psychiatric history, although some aspects of it were not clear because of a lack of information; this related in particular to his life in Poland before he came to the United Kingdom in 2005. Nevertheless it was possible to reach a reasonable assessment as to the appellant's mental condition.

The appellant's psychiatric history in Poland and the United Kingdom
[22] The appellant's mother and maternal grandfather both apparently suffered from schizophrenia, and his father had a serious alcohol problem. According to the appellant, his first contact with adult mental health services occurred after his mother's unexpected death. He told Dr Dewar that he had gone to his mother's grave in a very distressed state with the intention of hanging himself, and that this had somehow led to his admission to a psychiatric hospital. Thereafter, from about 1996 onwards, he had contact with two different psychiatric hospitals in Poland. He understood that he had been diagnosed as suffering from schizophrenia. Dr Dewar had obtained psychiatric records relating to one of the hospitals. This indicated that during the period from 1999 to 2004 the appellant had been admitted five times to the psychiatric hospital, the admissions varying in duration between two days and three weeks or thereby. The discharge diagnoses were varied. Two admissions, in 1999, had a diagnosis of delusional disorder, which Dr Dewar described as a severe form of mental disorder that overlaps somewhat with schizophrenia. More recent admissions, in 2003 and 2004, recorded diagnoses of adjustment disorder, personality disorder and drug misuse. The records further disclosed that in January 2003 the appellant had been admitted to a psychiatric hospital because of concerns about his risk of suicide. He had recently become unemployed and was extremely stressed by that. He was treated with doxepin, a highly sedative antidepressant. The discharge diagnosis was "Adaption reactions. Personality disorder. Psychoactive drugs abuse".

[23] During the period from his arrival in the United Kingdom in 2005 until 2008 the appellant claimed to have been sent psychiatric medication by his sister in Poland. He told Dr Dewar that he had managed quite well during this period, but from about 2008, as a result of difficulties at work, he claims to have felt excessively paranoid. He was treated at the Royal Edinburgh Hospital as an outpatient, and he also had a community psychiatric nurse. At the Royal Edinburgh Hospital he was looked after primarily by Dr Wheeldon, a consultant psychiatrist. In December 2010 Dr Wheeldon prepared a report, which noted that the appellant was relatively well at that time but that he had over the previous few years been treated for a diagnosis of paranoid schizophrenia and depression. Dr Wheeldon further noted that the extradition proceedings were causing the appellant a degree of distress, and that he was a vulnerable individual.

[24] The appellant is currently prescribed therapeutic doses of an antipsychotic medication, risperidone, an antidepressant, citalopram, and a sleeping tablet, zoplicone. Dr Lenihan described the appellant as having a "stable" schizophrenic illness; he appeared to be appropriately managed as a voluntary community patient, and his dose of antipsychotic medication was modest; he did not require high-intensity support in order to remain in the community. Dr Dewar (in cross-examination) considered the description of the appellant as a "stable" schizophrenic to be fair, in the sense that his presentation was fairly consistent from day to day. He further agreed that it was fair to say that the appellant's mental state was controlled by medication, although the appellant had not been forthcoming to him in relation to the condition that the risperidone was designed to treat.

History of self harm

[25] The appellant had a history of self harm. He informed Dr Dewar that when he was 19 he was obliged to attend a medical assessment for fitness to undertake military service. Immediately before he attended the medical assessment he cut his left arm, and the doctor who saw him classified him is not fit for service. The appellant also informed Dr Dewar that at some point during the 1990s the Polish government considered drafting him to work in a uranium mine. The appellant told Dr Dewar that he dropped a lorry tyre on his left foot, causing himself a serious injury to his left leg, in order to ensure that he could avoid this work. In 1996 the appellant was imprisoned for a time in Poland. At this time, he informed Dr Dewar, he swallowed two steel rods tied by rubber bands, and had an operation on his abdomen to remove the rods. The appellant further stated that by the time he had gone to prison he had had problems with his mental health for many years. He felt that the staff in the prison ignored him. After he had the operation to remove the steel rods he was transferred to a psychiatric hospital, where he spent the last three months of his sentence.

[26] Dr Dewar questioned the appellant about the incident that occurred at the Forth Road Bridge. He found it difficult to obtain information; the reason for this, he thought, was that the appellant found it distressing to say anything about the incident. Nevertheless, the appellant stated that he had become convinced that he was going to be extradited. Dr Dewar asked whether he had intended to take his life. The appellant stated that he did not want to answer that question, but after some time he replied that that had been his intention. The appellant stated that he could not recollect the exact sequence of events thereafter. He thought that he had been spotted by a worker on the bridge who informed the police. He was then taken to the Royal Edinburgh Hospital. He thought he did not do well at the Royal Edinburgh Hospital because he could not understand what anyone was saying to him. He had, however, had regular contact with mental health services since then. The appellant's admission to the Royal Edinburgh Hospital was dealt with in a report by Dr Nuttall, which was made available to both Dr Dewar and Dr Lenihan. Dr Nuttall was of opinion that the appellant suffered from schizophrenia and episodes of depression. He formed the view that the appellant had gone to the Forth Road Bridge with the intention of committing suicide and that this had been a genuine attempt. He further noted that there was a "significant risk" of future suicide, at least while the appellant was subject to the stress of removal proceedings. He considered that, because of the appellant's schizophrenic illness and depression, he was particularly vulnerable to not coping when placed under stress. Dr Dewar stated in his oral evidence that he had no reason to disagree with Dr Nuttall's view that the incident at the Forth Road Bridge had been a genuine attempt to commit suicide.

[27] Dr Lenihan interviewed the appellant on 14 December 2010, prior to the hearing before the Sheriff, and again on 11 October 2011. At the time of the second interview the appellant declined to give permission to have access to his medical records or to speak to anyone in his clinical team. Dr Lenihan considered that that limited the usefulness of his report. The appellant declined to discuss the incident at the Forth Road Bridge, stating "It's been described already". He also refused to speak about whether he had any current suicidal ideation. Dr Lenihan had considered Dr Nuttall's report, and he concurred with Dr Nuttall that the appellant had a serious mental illness, in the form of schizophrenia. Dr Lenihan was of opinion that that illness preceded the extradition proceedings and was not directly caused by them, but that the appellant's depressive symptoms appeared to be causally related to the extradition proceedings.

Psychiatrists' conclusions

[28] Dr Dewar found it difficult to establish any ongoing symptoms that the appellant was experiencing. He had asked the appellant to tell him about his functioning over the fortnight prior to the interview (which occurred on 13 October 2011). The appellant stated that he felt "like a felled tree"; he felt that his life was going to end soon and that was why he felt like a branch on a tree that had been felled. His only support came from his wife and family. He had not worked since 2008; he stayed at home and derived some comfort from watching Polish satellite television, in particular the Parliamentary channel. When asked to describe his current mood the appellant gave it a score of 2 out of 10, 10 being well and 0 being the most unhappy that he could imagine feeling. The appellant was reluctant to discuss recent psychiatric symptoms, and declined to answer questions about suicidal ideation or positive symptoms suggestive of psychosis. In relation to the extradition proceedings, he stated that only his body would return to Poland if attempts were made to return him there, and he appeared pessimistic about many other aspects of his life.

[29] Dr Dewar's opinion was that the appellant had been a very vulnerable individual throughout the course of his adult life. He found it difficult to form an opinion upon the appellant's psychiatric diagnosis. The limited Polish records were not consistent, and the history that the appellant gave was limited, especially regarding recent psychiatric symptoms. Dr Dewar was also aware that the appellant was opposed to his extradition and might be motivated to emphasize the severity of any difficulties that he experiences with his mental health. It was reasonable, however, to put particular weight upon the report available from Dr Wheeldon, the psychiatrist primarily involved in his care since 2008; when a psychiatrist has contact with a patient over a period it is easier to make a diagnosis. Dr Wheeldon's view was that the appellant had a schizophrenic illness and that he suffered from episodes of depression. On balance, Dr Dewar agreed with that conclusion, although he stated in cross-examination that on his own he would have considered that the appellant suffered from long-standing personality problems rather than schizophrenia; the level of distress displayed was he thought more compatible with that view. Nevertheless, he would defer to Dr Wheeldon, and also Dr Nuttall, on that matter, as they were the treating psychiatrists.

[30] Dr Dewar indicated that it was abundantly clear that the appellant did not cope well when placed under stress; that was not unusual for persons with mental illness. In the appellant's case, there was evidence that the mechanism adopted to cope with stress was to harm himself. Dr Dewar further concluded that the appellant made an apparent suicide attempt in the early summer of 2011, which appeared directly related to attempts to extradite him to Poland. He also had a significant previous history of self-harm, including injuring himself to avoid joining the army, an experience that he felt he could not cope with. Dr Dewar thought that there might well be an element of the appellant's deliberately harming or threatening to harm himself in order to avoid his extradition. If the extradition were pursued, there would be some risk that the appellant would experience an exacerbation in his mental illness and thereby be a significant risk to himself or make a conscious choice to harm himself and possibly to take his life. It was very difficult to quantify exactly how large a risk that might be. A further factor was that men commonly chose violent means for self-harm. Most suicidal acts are ambivalent, and if, for example, an overdose is taken the effects can frequently be undone. If violent means are used, however, the result may be irreversible. The incident at the Forth Road Bridge was stopped by intervention, but if the appellant had jumped from the bridge he would not have survived.

[31] Dr Lenihan, following his first interview with the appellant in December 2010, considered that the clinical picture was consistent with schizophrenia against a background of low normal IQ/borderline learning disability. Dr Lenihan considered the possibility that the appellant was inventing or exaggerating his symptoms in order to aid his legal position. He did not initially form the impression that this was the case, but additional information provided from Dr Wheeldon led to the view that the appellant was reporting symptoms which either he was not experiencing or which did not trouble him greatly. Dr Lenihan further thought that the appellant's illness was currently well controlled. In Scotland, a stable schizophrenic illness would not be regarded as a ground for excluding imprisonment; appropriate treatment is available within the prison system, and if necessary temporary removal to an external hospital can be arranged. Following his second interview, in October 2011, Dr Lenihan considered that the issue of suicide risk appeared to be important. The appellant had refused to discuss this with him, and that limited the conclusions that could be drawn. Psychiatrists do not usually attempt the impossible task of making probabilistic estimates of suicide risk. The usual approach is to understand what drives the risk, increasing or reducing it, what gives an advance warning of increased risk, and how the risk can be managed. Dr Lenihan's opinion was that the appellant's suicide risk was contingent, that is to say dependent on other events, notably legal setbacks or proposed extradition. Were his extradition to be abandoned his suicide risk would fall dramatically. Were he to hear bad news it would rise.

[32] Both Dr Dewar and Dr Lenihan were of opinion that, if the appellant were extradited, steps must be taken to protect against the risk of self harm. Dr Dewar stated in evidence that a plan would be required to ensure the appellant's safety until he could be received by the Polish authorities. It might, however, be difficult to communicate with the Polish authorities, owing to language difficulties and the different way in which services were configured in Poland. Ideally documentation would be sent in Polish summarizing the appellant's psychiatric history and the risk of self-harm. It should not be left to the appellant himself to communicate that information. This was important because the risk of self-harm would be high immediately after any decision to extradite, and possibly for some weeks thereafter. It was to be hoped that the appellant would be sent to a psychiatric hospital in Poland. Nevertheless, if the appellant were kept in custody and monitored the risk would be reduced. In the United Kingdom clear plans are drawn up to manage those who are at risk of self-harm. In cross examination Dr Dewar accepted that such plans cannot be foolproof, but they mitigate the risk. Dr Lenihan thought that in the event of extradition it was sensible for the appellant to be treated as "high risk" as a precaution. He should be appropriately managed in prison awaiting extradition and risk management information should be handed over to the Polish authorities.

The relevant law

[33] The application of section 25 of the Extradition Act 2003 to the risk of suicide or other self harm has been considered in a number of cases. In construing the legislation relating to the European arrest warrant, however, the Council Framework Decision of 13 June 2002 is of some importance; this is the Decision that forms the background to such warrants. The intention behind the European arrest warrant is set out in certain paragraphs of the preamble. Paragraph (5) states that the objective set for the European Union is "to become an area of freedom, security and justice" and that this leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. The introduction of a new simplified system of surrender of sentenced or suspected persons made it possible to remove the complexity and potential for delay inherent in existing extradition procedures. Paragraph (10) provides that the mechanism of the European arrest warrant is based on "a high level of confidence between Member States". It is accordingly clear that the system of mutual recognition of European arrest warrants is based on mutual trust among the judicial systems of the various member states of the European Union. That in turn reflects the fact that the member states share common values and common attitudes to the rule of law and the importance of personal liberty. In this connection, it is relevant that all of the member states of the Union are signatories to the European Convention on Human Rights.

[34] The leading Scottish authority on the relevance of a psychiatric condition and resulting suicide risk to extradition is Howes v HM Advocate, 2010 SLT 337. That case involved the extradition to the United States of a woman who had developed an adjustment disorder in response to the proceedings, and there was a substantial risk that she would commit suicide if she were extradited and then convicted. It was held that the evidence did not warrant the conclusion that extradition would be unjust or oppressive. Lord Reed, delivering the opinion of the court, stated (at paragraph [13]):

"[I]t is apparent... that in practice a high threshold has to be reached in order to satisfy the court that a requested person's physical or mental condition is such that it would be unjust or oppressive to extradite him. That reflects a number of considerations. One... is the public interest in giving effect to treaty obligations in extradition cases. It follows... that 'this court will not lightly conclude that the threat of suicide is sufficiently grave and likely to be carried out successfully, so that what would otherwise be the due process of extradition under international arrangements should not take place'. Another important consideration is the fact that the countries with which such treaties are concluded are likely to have adequate facilities available for treating the health problems of persons whose extradition is requested".

In the circumstances of the particular case, it was not in dispute that appropriate measures could be taken in the United States and on the way there to protect the appellant's safety, and that appropriate facilities were available in the United States for the assessment and treatment of mental health. These might not be sufficient to prevent a successful suicide attempt, but the availability of such facilities reduced the risk. Indeed, the risk was relatively common in the context of persons awaiting trial or serving sentence after conviction and was one which law enforcement agencies and prison authorities were used to addressing, in both the United States and the United Kingdom. In that case, however, the appellant had no history of self-harm or attempted suicide, and her mental health problems were not considered to be of the most serious character.

[35] In Wrobel v Poland, [2011] EWHC 374 (Admin), the English High Court required to consider the extradition to Poland of a person whose "risk of impulsive but serious self-harm, including suicide" would be very high because of his mental health. He suffered from a borderline personality disorder and unpredictable serious swings in his mood state, with a high likelihood of depression, which might render him unable to resist the impulse to commit suicide. He had in addition a history of repeated self-harm, cutting himself on his arms, neck and abdomen. The psychiatric evidence was that the risk could not be managed by medication. Extradition was ordered by the District Judge, but his decision was reversed by Bean J in the High Court. The test applied by Bean J (at paragraphs 20-18) was as follows:

"I ... conclude that the test is ... whether the risk that the fugitive will succeed in committing suicide, whatever steps are taken, is on the evidence sufficiently great to result in a finding of oppression.

In deciding what risk is sufficiently great to result in such a finding it must be borne in mind, firstly, that there is a public interest in giving effect to treaty obligations...; secondly, that it should be assumed, at any rate in a European arrest warrant case under Part 1 ... that the requesting state has the facilities to cope with and to treat mental illness. Whether or not the treatment is, in all respects, as good as the appellant might receive in London is not the point. Thirdly, a high threshold has to be surmounted in order to show oppression. Finally, in a case based on the risk of suicide there must, in my view, be independent and convincing evidence of a very high risk of suicide if the fugitive is returned".

The psychiatric evidence available in that case established that there was a very high risk of suicide in the event of extradition.

[36] The foregoing test was expressly approved by a Divisional Court in Mazurkiewicz v Rzezów Circuit Court, Poland, [2011] EWHC 659 (Admin), a case where the appellant had attempted to hang himself in his prison cell. A consultant forensic psychiatrist who examined the appellant concluded that there was a high risk of the appellant's killing himself, and that the risk would be higher if the appellant were extradited. Furthermore, the appellant in a witness statement stated that he would kill himself as soon as the extradition order was made, using blades that he was able to hide on his person. It was nevertheless held that the suicide risk was not so high that the appellant's rights under the European Convention on Human Rights were infringed, or that extradition would be "unjust or oppressive" within section 25 of the Extradition Act.. Jackson LJ, delivering the opinion of the court, stated (at paragraphs 44-46):

"As the law now stands, I consider that the test which the court must apply is that stated in Wrobel. If the appellant proves that there is a very high risk of suicide in the event of extradition, then he demonstrates that it would be oppressive to extradite him within the meaning of section 25(1) of the 2003 Act. I do, however, share the misgivings expressed [in Rot v District Court of Lublin, Poland, [2010] EWHC 1821 (Admin)]. A person who is otherwise fit to serve a sentence of imprisonment does not escape such a sentence in this country simply by pointing to a high risk that he will commit suicide. Obviously mistakes are sometimes made, but the prison service has systems in place to protect vulnerable prisoners against self harm. Our criminal justice system operates on that basis....

Part 1 of the 2003 Act rests upon the principle of mutual respect for the different criminal justice systems within the EU. Furthermore, the growing number of cases in which the suicide argument is deployed, sometimes with success, must be a matter of concern. If the mistaken belief takes hold that any serious, but unsuccessful, attempted suicide is rewarded by relief from extradition, this will be highly damaging for all concerned. In my view, therefore, this court was right to stress in Jansons [infra] that it is only in a truly exceptional case that in practice the fugitive can escape extradition to a category 1 territory on the grounds of suicide risk".

Although extradition was ordered, the court placed considerable stress on the measures that must be taken to deal with the risk of suicide. Jackson LJ stated (at paragraphs 67-68):

"In those circumstances the UK prison authorities must exercise the utmost vigilance from the moment the appellant is told about his judgment until the moment when extradition is completed. He must be thoroughly searched to ensure he has no access to instruments for self harm. He must be prevented from gaining access to such instruments. Finally, the terms of this judgment should be drawn to the attention of the Polish Judicial Authority and the Polish Prison Authorities.

I request that counsel liaise to ensure that the Governor of Wandsworth Prison has sufficient notice of this judgment and in particular the preceding paragraphs, so that he can put in place the necessary protective measures before the appellant is informed of the dismissal of his appeal".

[37] The last case that we should mention is Jansons v Latvia, [2009] EWHC 1845 (Admin). The facts of that case were somewhat extreme, in that the appellant had attempted to hang himself in his prison cell. When he was discovered his condition was serious; he had no pulse and required to be taken to the emergency department of a nearby hospital, where he remained for some days. He was fully conscious by the ninth day, and was not discharged from intensive care until the tenth day. That is clearly a more serious situation than is disclosed in any of the other reported cases, or indeed in the present case. The Divisional Court held that the risk of suicide was so substantial that it would be oppressive to return the appellant to Latvia. Sir Anthony May, delivering the principal judgment of the Divisional Court, stated (at paragraph 29) that this was a case where the appellant had a history of attempting to commit suicide when in prison and very nearly succeeded in doing so. On the basis of the evidence, the risk that the appellant would succeed in committing suicide, whatever steps were taken, was sufficiently great to result in a finding of oppression. A proportionality judgment was required, taking account of the seriousness of the offences, the need to honour international treaties and a finding that the Latvian authorities would generally speaking take all reasonable steps to protect the appellant. That, however, had to be weighed against a very clear suicide risk. In our opinion the facts of Jansons were somewhat exceptional, and we do not think that the decision in any way overrides the general statements of principle found in Howes, Wrobel and Mazurkiewicz.

[38] On the basis of the foregoing decisions, we are of opinion that the following propositions can be stated. First, extradition requests are granted in accordance with treaty obligations of the United Kingdom, and there is a clear public interest in giving effect to such obligations. Secondly, within the United Kingdom the prison service has systems in place to ensure so far as possible that vulnerable prisoners cannot harm themselves. That is why a person sentenced to imprisonment within the United Kingdom will not escape such a sentence merely on account of a risk of suicide. Thirdly, at least in cases involving European arrest warrants, it should be assumed that the requesting state has facilities to treat mental illness and to address the possibility of self-harm that correspond broadly to those available within the United Kingdom. In this connection it is pertinent that all of the states of the European Union (that is to say, all of the states that may issue European arrest warrants) are signatories to the European Convention on Human Rights. It must accordingly be assumed that the prison regime of such a state is compliant with the Convention, and thus has adequate measures in place to protect prisoners from self-harm. It is not material, however, to consider whether the treatment available for prisoners with mental health problems is as good as that which might be available within the United Kingdom; the fundamental point is that a basic standard of care will be met. Fourthly, as a consequence of the foregoing principles, a high threshold must be surmounted in order to establish oppression for the purposes of section 25 of the Extradition Act 2003. Fifthly, also as a consequence of the foregoing principles, if an appellant relies on the risk of suicide, it must be established by independent and convincing evidence that the risk of suicide is very high in the event that the appellant is returned. That is the test laid down in Wrobel and affirmed in Mazurkiewicz, and we consider that it is the proper test to apply. Sixthly, subject to all of the above factors, the court must make an overall judgment on the particular facts of the case under consideration.

The application of section 25 of the Extradition Act 2003

[39] When the foregoing principles are applied to the present case, we are of opinion that it would not be oppressive to return the appellant to Poland, and that the test in section 25 of the Extradition Act is accordingly not met. The issue is whether the evidence discloses that the risk of suicide in the event of return is "very high". In our opinion that test is not satisfied. We accept, on the basis of the evidence of Dr Dewar and Dr Lenihan, that the appellant has a significant history of self-harm, including both the incident at the Forth Road Bridge and earlier incidents in Poland. We further accept that the appellant has threatened to commit suicide in the event of his extradition and, on the basis of Dr Dewar's evidence in particular, that in the event of extradition there would be some risk that the appellant's mental illness would be exacerbated and that he might choose to harm himself or possibly to take his life. Nevertheless, as both psychiatrists accepted, it is very difficult to quantify that risk. Moreover, the risk is one that can be managed by appropriate supervision and monitoring while in custody. The risk in the present case is certainly not as high as that exhibited in Jansons, where the appellant had almost succeeded in hanging himself while in custody. Nor is it as high as that in Wrobel, where the appellant had a history of repeatedly cutting himself on the arms, neck and abdomen, and the psychiatric evidence was that his condition could not be managed by medication. The risk in this case appears to us to be no higher than that exhibited in Mazurkiewicz, where the appellant had attempted to hang himself in his prison cell, and the psychiatric opinion available to the court was that there was a "high risk" of the appellant's killing himself. Nevertheless even that risk was not sufficient to satisfy the test, that there is a very high risk of suicide in the event of extradition.

[40] Moreover, the evidence of Dr Dewar and Dr Lenihan indicated that the appellant's psychiatric state is capable of being controlled by relatively modest doses of medication. This is an important distinguishing feature from Wrobel, where the psychiatric evidence disclosed that the risk of self-harm could not be controlled by medication. The appellant receives antipsychotic medication in relatively small doses, and an antidepressant and a sleeping tablet. On the basis of that medication, he is able to live in the community, with relatively limited contact with a psychiatrist, Dr Wheeldon, and a community psychiatric nurse. The evidence of Dr Dewar and Dr Lenihan was that the appellant's mental state is essentially stable, in the sense that his presentation does not vary greatly from day to day and can be controlled by a modest amount of medication. The foregoing factors suggest that the appellant's mental state is not extreme and can be controlled.

[41] It is also important that the risk of suicide can be substantially reduced by supervision and monitoring while the appellant is in custody. This was a significant factor in Mazurkiewicz, where the court stated (at paragraph 67) that the United Kingdom prison authorities must exercise the utmost vigilance from the moment when the appellant was told about the judgment until the moment when extradition was completed. Furthermore, the terms of the judgment were to be drawn to the attention of the Polish judicial authority and prison authorities. We are of opinion that the risk to the present appellant can be controlled in a similar manner, and we deal with that matter subsequently. So far as the Polish authorities are concerned, Poland is a signatory to the European Convention on Human Rights and accordingly there is a presumption that proper standards of psychiatric care will be available there. In addition, evidence was available that proper medical treatment could be obtained in Poland. A letter of 4 February 2011 sent to Crown Office by the Regional Court in Wrocław indicated that, when the appellant was detained in a penitentiary unit, he should be provided with proper medical care. A further letter of 23 February 2011 to Crown Office from the Regional Court in Toruń stated the following:

"With reference to medical care, we inform you that prisoners taken over by a penitentiary go through standard medical examination. During the service of sentence, the convicts have a permanent comprehensive medical care ensured. In case of any signals on a risk of suicide, psychological consultations are conducted and the convict with such proneness is particularly monitored. He may be transferred to a relevant division of prison psychiatric hospital, and in particular cases such a person may be granted a break in the serving of his sentence".

Yet a third letter, dated 13 September 2011, to Crown Office from the District Court in Wrocław indicated that the appellant would be provided with treatment for paranoid schizophrenia in prison. Against that background, we are of opinion that adequate medical treatment is clearly available within the Polish prison service.

Articles 3 and 8 of the European Convention on Human Rights

[42] Article 3 of the Convention embodies the right not to be subjected to inhuman or degrading treatment. Poland is a member of the European Union and signatory to the European Convention on Human Rights. Consequently, in the absence of convincing contradictory evidence, it must be presumed that treatment within the Polish prison service will comply with article 3 of the Convention. No such evidence was presented; indeed the evidence indicated that proper psychiatric care is available within the Polish prison service. We accordingly reject any argument based on article 3.

[43] Article 8 of the Convention embodies the right to respect for private and family life. Any interference with that right by a public authority must be "necessary in a democratic society ... for the prevention of disorder or crime", and resolving this issue involves a test of proportionality. The question of whether extradition would involve a disproportionate interference with article 8 rights was considered in Norris v Government of the United States of America (No2), [2010] 2 AC 487, where the court stated (at paragraph 56) that extradition will be proportionate to the objectives that it serves unless there exists some "quite exceptionally compelling feature, or combination of features" relating to family life. It is accepted (at paragraph 63) that the gravity of the offence in question might be of relevance to the question of proportionality in cases where the offence is "at the bottom of the scale of gravity". Nevertheless, this must be set against the important objectives of ensuring that crime is prosecuted where appropriate and of giving effect to extradition agreements. In the present case, although the offence with which the appellant is charged in Poland is not of the most serious, it cannot be regarded as at the bottom of the scale. The Wrocław District Court wrote to Crown Office on 1 December 2011 to indicate that the offence charged can carry a sentence of up to five years' imprisonment. On that basis, we are of opinion that it cannot be said that the interference with the appellant's article 8 rights is in any way disproportionate to the important objectives served by the law of extradition.

Protective measures

[44] As we have indicated, we consider it vital in the present case that appropriate measures should be taken by the prison authorities both in the United Kingdom and in Poland to reduce the risk of self-harm by the appellant. At the conclusion of the hearing in the present appeal we indicated that we would require proposals from the Lord Advocate as to the care of the appellant in the event that we found that he should be extradited to Poland. We also indicated that the Polish authorities should receive a letter from one or both of the psychiatrists who gave evidence setting out the appellant's full psychiatric history, so far as known, and the treatment that he has received. This should include the incident that occurred at the Forth Road Bridge. The letter should be translated into Polish. The proposals made by the Lord Advocate are as follows.

[45] First, Dr Lenihan has prepared a letter addressed to the Polish authorities setting out the appellant's psychiatric condition in detail. The letter has been translated into Polish and sent to the relevant Polish authorities in order that they may carry out appropriate risk assessments. It has also been sent to Lothian and Borders Police, once again to enable a risk assessment to be carried out. The letter sets out the main risk issues, together with a detailed plan for dealing with the appellant from the moment when he is taken into custody until his reception into the Polish prison system. The main risk issues are described as follows:

"The main concern we have is that Mr Włodarczyk will, when he comes to feel that his extradition is inevitable, attempt to kill himself once again and will either succeed in doing so or will injure himself severely in the process.

A lesser concern is that the stress of deportation will result in a worsening of his psychotic (schizophrenic) symptoms. The discontinuity of care could result in his medication being missed or lost or not being dispensed thus making symptoms worse still".

The plan for the appellant's care is that, within the Scottish prison system, he should be placed on High Risk Act Status. This would ensure a suitably equipped cell (with no attachment points for ligatures), good observation opportunities, frequent checks, suitable clothing (anti-ligature) and suitable furnishings. Information to that effect has been sent to HMP Saughton, where the appellant should be kept in custody pending extradition. On the journey to Heathrow airport there should be adequate numbers of staff with relevant training. In London the appellant should be lodged in an appropriate cell with constant surveillance. The cell would be one suitable for prisoners who pose a suicide risk. In the air, it would be appropriate for the aircraft captain to be informed about the appellant and the context of his journey. It would not be appropriate for there to be a number of deportees or extradition subjects on the same flight. There should be adequate numbers of staff with relevant training available to control the appellant if that were required. He should be accompanied at all times, with the escort always remaining in voice contact. Within Poland it would be appropriate for the appellant to remain on the equivalent of Scottish "high risk" status for at least the first week or two of his stay in custody. The cell, furnishings and clothes should be adapted to ensure a lack of ligature points and the like. There should be regular observations at no more than 15 minute intervals. Reduction of the appellant's risk status should be based on evidence of reducing risk, including freedom from depressive symptoms, evidence of orientation towards the future (making plans etc), and credible assurances from the appellant that he would not commit suicide.

[46] Secondly, in relation to the handling of the appellant while in the United Kingdom, Lothian and Borders Police have indicated that they would plan to transport the appellant by aircraft to London Heathrow airport, should his behaviour allow that. That would enable police officers to maintain constant contact and supervision, as the appellant would be seated between two control officers at all times. If transport by air proved impossible, the appellant would be transported by van to Heathrow airport. In that event, the prison compartment within the van has Perspex walls which allow him to be viewed at all times by staff in the vehicle. Once at Heathrow the appellant would be lodged in an appropriate cell within the Metropolitan Police Station. The cell would permit constant surveillance. Such cells are used for high-risk prisoners who pose a threat of self-harm or suicide. The Metropolitan Police would be given a full briefing and allowed to form their own risk assessment, but it would be highlighted that the appellant poses a high suicide risk. He would be kept in the cell for a maximum of five hours and thereafter escorted to the aircraft and handed to the Polish authorities. That would enable the appellant to leave for Poland on a LOT flight in the late afternoon. This would prevent the appellant's having to be kept in a police cell at Heathrow overnight. Lothian and Borders Police have liaised with the Metropolitan Police, who have confirmed that they are capable of accepting the appellant as a Category A High Risk prisoner at Heathrow airport.

[47] Thirdly, in relation to the management of the appellant in Poland, letters are available from a judge of the District Court in Wrocław and from a representative of the Convoy Department of National Police Headquarters, respectively dated 30 January and 7 February 2012. The former letter summarizes the manner in which Polish criminal law and the Polish penal system treat persons suffering from mental disorder. It states that, if the appellant were sentenced to imprisonment, then in order to ensure his personal safety, his sentence would be served in an appropriate system and an appropriate type of prison. In determining such matters, regard is had to the prisoner's state of physical and mental health. The second letter, from the Convoy Department at National Police Headquarters, states that the persons responsible for carrying out the task of returning the appellant to Poland would maintain increased precautionary measures. The number of police officers would be increased over the norm, and only officers with appropriate experience and training in this area would be responsible for the appellant's conveyance to Poland. Within Poland, the appellant would be subjected to a medical examination on the basis of which he would be placed in the appropriate penitentiary unit.

[48] On the basis of the foregoing information, we are of opinion that adequate protective measures can be put in place to ensure the appellant's personal safety both during the process of his return to Poland and within the Polish prison service thereafter. We will also specify that a copy of the present opinion should be made available to the Polish authorities, so that they may be made fully aware of the legal background to the appellant's extradition. In conclusion, we must emphasize that the foregoing protective measures are of the utmost importance, and must be followed carefully. Subject to that, we refuse this appeal.