This judgment was handed down remotely at 11.00am on 15th April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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MR JUSTICE SHELDON
Mr Justice Sheldon:
- Edmund Hebda appeals from the decision of District Judge Zani ordering his extradition to Poland pursuant to an arrest warrant issued on 17 May 2019. The Polish judicial authorities seek Mr Hebda's extradition to prosecute him for three financial crimes alleged to have been committed between 2007 and 2011. The key issue on this appeal concerns Mr Hebda's risk of suicide: whether the risk of suicide (among other matters) means that the extradition of Mr Hebda is a disproportionate interference with his Article 8 rights, and/or whether the risk of suicide renders his extradition to Poland "oppressive" contrary to section 25 of the Extradition Act 2003 ("the 2003 Act"). Mr Hebda contends that the District Judge erred in his conclusion with respect to these matters; alternatively that the proper analysis of the fresh evidence that the Court is invited to accept leads to the conclusion that extradition to Poland would be unlawful.
Factual Background
- On 17 May 2019, a Judge of the District Court in Krakow, Poland, issued a European Arrest Warrant ("the EAW"). This was certified by the National Crime Agency on 21 May 2020. The EAW seeks the surrender of Mr Hebda to be prosecuted for three offences:
i) Between 2 November 2007 and 20 May 2011, Mr Hebda conspired with at least 5 other individuals to commit offences against property, trade and documents as part of a criminal organisation. He faces a sentence of up to 5 years imprisonment upon conviction.
ii) Between 2 November 2007 and 20 May 2011, Mr Hebda and others conspired with employees of various Polish banks to submit false documentation supplied by members of the conspiracy in order to fraudulently obtain bank loans. The fraud had a total value of PLN 7,109,429.60 (equivalent to approx. £1.4 million, according to current conversion rates). He faces a sentence of up to 10 years upon conviction.
iii) Between 18 December 2007 and 7 January 2009, Mr Hebda conspired with others to use forged documents to fraudulently obtain loans from Polish bank. The fraud had a total value of PLN 3, 908,638.69 (equivalent to approx. £770,000 according to current conversion rates). He faces a sentence of up to 10 years imprisonment upon conviction.
Offences (i) and (ii) are related.
- Mr Hebda was subject to a period of pre-trial detention in Poland from 23 November 2011 to 5 April 2012. Mr Hebda described his experiences as follows:
"I was physically abused when I was in prison. I was put in a cell with three young inmates who had committed many violent offences. They punched, kicked and pushed me. They took my food away. I think those violent offenders were put there on purpose to make my life a misery. I start shaking when I talk about this. Sometimes I shared a cell with ten others. The cells were small. The other inmates laughed at me and made fun of me. It was not pleasant. The guards did nothing to help.
It was difficult to cope with the physical and mental abuse from inmates and prison guards. I knew a lot of people in my town. The guards told these people that the prosecutor told them to treat me badly. They wanted me to crack under pressure and plead guilty. They saw me as a weak link. There are many people on remand who are bullied into pleading guilty when they have done nothing wrong. I never pleaded guilty and I maintain my innocence. I was put on antidepressants in prison. I felt very isolated and hopeless. I became reliant on these pills. Since then, I have been taking them and I need them to function. Sometimes, the antidepressants alone are not enough, and I need alcohol."
- During his period of pre-trial detention, Mr Hebda attempted to commit suicide by hanging himself. In her evidence for the extradition hearing, Mr Hebda's daughter Maria stated that when her father was released from custody he was "a totally different person", he would disappear for hours at a time, and started drinking heavily.
- On his release from detention, Mr Hebda was subject to police supervision, a "property bonding" in the sum of PLN 10,000, and a ban on leaving the country and on issuing a document to the leave the country. In spite of this ban, Mr Hebda left Poland and came to the United Kingdom on 24 April 2014. He found work as a cleaner and lives in rented accommodation. Four of his six children live in the United Kingdom; one child lives in Poland and the other in Germany. Mr Hebda was married to Elzbieta Hebda for 40 years. They are now divorced, but she is still heavily involved in his life, supporting him with housework and providing him with care.
- In April 2018, Mr Hebda tried to kill himself by overdosing on his anti-depressants and alcohol. He was taken to hospital where he remained for a few days.
The extradition proceedings
- The extradition hearing before District Judge Zani took place on 25-26 July 2022, and went part-heard to 5 December 2022 and 14 April 2023. Before handing down judgment, the District Judge was notified that Mr Hebda had attempted to take his life and had been hospitalised. Mr Hebda had taken an overdose of his antidepressant medication. The District Judge refused an application to adjourn so that further evidence could be obtained. Judgment was promulgated on 12 July 2023.
- District Judge Zani reviewed the evidence of the various witnesses, including the evidence from Mr Hebda himself, and Dr Furtado, a Consultant Psychiatrist who had written three reports (15 September 2021, 18 November 2021 and 12 July 2022). District Judge Zani noted that Dr Furtado believed that it was unlikely that Mr Hebda's mental state would improve whilst extradition proceedings were ongoing; to the contrary, Dr Furtado considered that Mr Hebda's mental state was likely to worsen and there was a real risk that, should extradition be imminent, Mr Hebda could make attempts to end his life.
- In his judgment at [26], District Judge Zani recorded Mr Hebda's statement of 11 December 2021 that:
"I would rather kill myself than be extradited. I do not want to be separated from my family. I have no close family left in Poland. it would be impossible to survive on my own, with nobody to come and see me. My family are all here."
In addition, at [27], there was reference to Mr Hebda's statement of 21 November 2022 that:
"I continue to feel that, if I were to be extradited, I could not live with the possibility of being detained in prison in Poland again. If this were to happen, and I was facing returning to a Polish prison, I would take my own life."
- District Judge Zani also referred at [34] to the evidence of Mr Hebda's son, Wojciech, in which he stated on 28 April 2021 that:
"We have spoken about the extradition proceedings. He is pessimistic about returning to Poland. He changed after he was released from prison in Poland. He spends most of his time in his bedroom. He said he doesn't want to go back to Poland and that if he does, he will go to jail md he will kill himself. He states he just wants to take a hand full of pills and drink a bottle of vodka."
- Similarly at [64], District Judge Zani referred to the evidence of Elzbieta Hebda (Mr Hebda's ex-wife) in her statement of 22 July 2022, in which she stated that:
"Edmund continues to say that he would rather kill himself to stay in this country than be taken to Poland."
At [68], there is reference to Elzbieta Hebda's further statement of 21 November 2022, in which she stated that:
"He still expresses intentions to kill himself if his extradition was ordered."
- Dr Furtado gave oral evidence before District Judge Zani. There is no transcript of the evidence, but a note of part of what Dr Furtado says he told the Court was set out in a report produced on 13 August 2023:
"over the months that I've seen him, he has stated to me that he experiences suicidal thoughts and ideation he is able to resist most of those and doesn't engage in suicidal or self harm acts but what I'm trying to convey and demonstrated in Edmund's history there comes a tipping point in his presentation when either very depressed, hopeless and helpless … He is no longer able to resist those thoughts at that point in time. At those infrequent periods of time, he would be unable to resist impulse of wanting to end his life and reflected in his previous overdose that he did".
- What Dr Furtado was saying in that passage is consistent with what Dr Furtado had set out in his statement of 15 September 2021, which was before District Judge Zani:
"Mr Hebda has presented with suicidal thoughts for a number of years and he has acted on these thoughts previously. His previous attempts are attributable to poor impulse control secondary to his depressive disorder which affects his ability to think through his actions and problem solve. This is further complicated by his alcohol use which further increases his impulsivity. As mentioned above, his alcohol use is most likely secondary to his partially treated depression. Although he has frequent thoughts of wanting to end his life, it is apparent that on most occasions he can resist the thoughts, but on occasions he believes the only way out is by ending his life. It would be difficult to predict when he would engage in such acts. His suicidal attempts, I would consider to be acts, he engages in are due to his inability to resist the impulse of wanting to end his life and feelings of hopelessness; he is likely to assume that he has no other choice".
- It is also consistent with what Dr Furtado said in his statement of 20 July 2022, describing what Mr Hebda had said to him in an interview on 12 July 2022:
"He stated that [if he was extradited to Poland] he would have no other choice and that it would be his only option. Despite encouraging him to think about alternatives, he was unable to do so and focussed entirely on the ending of his life".
Dr Furtado expressed his opinion as being that Mr Hebda's suicidal attempts
"are likely to be due to his inability to resist the impulse of wanting to end his life and feelings of hopelessness; he is likely to assume that he has no other choice."
- In his judgment, District Judge Zani described Dr Furtado's evidence as follows:
"75. Dr Furtado believes that it is unlikely that Mr Hebda`s mental state will improve whilst extradition proceedings are ongoing and on the contrary is likely to further worsen his mental state and that there is a real risk that should extradition be imminent, he could make attempts to end his life".
76. Suicide risk assessment.
According to Dr Furtado, this is an imprecise science. However, as Mr Hebda presents with risk factors including being male, of slightly older age, a diagnosis of moderate to severe depression, past suicide attempts, feelings of hopelessness and helplessness, the possibility of isolation, physical illness, recent contact with psychiatric services and lack of social support puts him at increased risk of suicide. He considers the clinical risk to be very high and remain very high for the foreseeable future based on these factors. This risk is influenced by his alcohol consumption and feelings of hopelessness. He recommends that Mr Hebda continues with his antidepressant medication with consideration being given to a further increase in the dose. He recommends that culturally adapted psychological interventions, such as cognitive behavioural therapy and substance misuse psychological interventions, be offered to him.
77. Mr Hebda has stated that he would kill himself if his extradition to Poland is ordered and Dr Furtado considers this risk to be very high and that his mental health is more likely to improve on the culmination of proceedings against him. The extent to which his depressive symptoms will abate is difficult to predict considering the length of time he has experienced these symptoms.
78. Dr Furtado added that there is evidence to suggest that his depressive symptomatology began following his incarceration in prison in Poland and that he attempted to kill himself when in prison in Poland. He would need 24-hour 1:1 supervision to prevent him from killing himself. Furthermore, there needs to be assurances that his depression will be adequately and robustly treated and that plans are in place with relevant expertise to assess his cognitive problems. He believes that there is the likelihood that Mr Hebda's mental health will deteriorate if extradited to Poland. Furthermore, his risk of suicide is likely to increase".
It can be seen that District Judge Zani made no mention of Dr Furtado's repeated evidence that, in his opinion, Mr Hebda's suicidal acts occur when he is unable to resist the impulse of wanting to end his own life, at a time when he is feeling hopeless.
- In his judgment, District Judge Zani carried out the Article 8 balancing exercise pursuant to Polish Judicial Authorities v Celinski [2015] EWHC 1274. The factors in favour of granting extradition were said to be:
"(i) There is a strong and continuing important public interest in the UK abiding by its international extradition obligations.
(ii) The seriousness of the criminal conduct tin respect of which his return is sought and the lengthy sentence that may result from any conviction.
(iii) The assertion by the Judicial Authority and the finding by this court that the requested person is a fugitive from Justice".
Earlier in his judgment, District Judge Zani stated that he found that Mr Hebda was a fugitive; that he acted to put himself beyond the reach of the authorities in Poland. This finding is not challenged.
- The factors said to be in favour of refusing extradition were said to be:
"(i) EH [Mr Hebda] says that he arrived in the UK in 2014 and that he feels settled here.
(ii) He adds that he is in full time employment and that he lives in fixed rented accommodation where he resides with family members.
(iii) EH states that he has led a law-abiding life since settling in the UK.
(iv) He asserts that he is not a classic fugitive from justice as he believes that he had good reason to leave Poland as his economic circumstances at the relevant time were such that he felt compelled to come to the UK to find work to support himself and his family.
(v) His health - and particularly his mental health -is such that it would be disproportionate to order return as the risk of suicide is thought to be likely to escalate by reason of his despair and the separation from his protective and caring family.
(iv) There has been unacceptable delay on the part of the Polish authorities in investigating and prosecuting this matter for matters which are now of some age and return will have a profound adverse effect on his mental health and his alcohol dependency recovery. Furthermore return may well trigger suicidal ideation which he will be unable to resist".
- District Judge Zani found that extradition to Poland would not be a disproportionate interference with Mr Hebda's Article 8 rights:
"(i) It is very important for the UK to be seen to be upholding its international extradition obligations. The UK is not to be considered a `safe haven` for those sought by other Convention countries either to stand trial or to serve a prison sentence.
(ii) In my opinion, the criminal conduct set out in the EAW is very serious and, in the event of a conviction in the UK for like criminal conduct, a prison sentence of some length may well be imposed.
(iii) This court finds that the requested person is a fugitive from justice. The reasons for this finding are set out heretofore.
(iv) It is appreciated that there will be hardship caused to EH and to his family members. However, that of itself is not sufficient to prevent an order for extradition from being made.
(v) As this court has found as a fact that EH is a fugitive from justice, this finding brings paragraph 39 of the decision in Celinski above into consideration. I do not find that there are such strong counter-balancing factors as would render extradition Article 8 disproportionate in this case.
(vi) I bear in mind, in an Article 8 context, the time that has passed since the alleged criminal conduct is said to have occurred, but this does not tip the balance in his favour.
(vii) I have also given consideration to the fact that most of his family reside in the UK and that it may be difficult for them to visit him in prison there. I note that he has an adult son living in Poland, who is said to apparently spend much of his time travelling.
(viii) I have given particular consideration to EH`s health issues, particularly his mental health and the potential suicide risk were extradition to be ordered. I find that the evidence presented shows that any such attempt to end his life would not be as a result of an uncontrollable impulse but would be as a result of a decision taken by EH assessing the circumstances as he perceives them to be in the event of return. In the context of an Article 8 challenge I do not find that this prevents his extradition from being ordered, either on its own or with other factors relied on in support of this challenge. It is also noted that his mental health appears to have improved in recent months as has his hitherto dependency on alcohol.
(ix) I also bear in mind the Brexit uncertainty in this case. It may be that, if convicted, notwithstanding the fact that he has settled status, the Home Office may reconsider his right to return in the event that he were to be convicted and sentenced to a term of imprisonment that falls foul of the relevant regulations. . . . I do not find that such uncertainty tips the Article 8 balance in favour of the requested person such as to make return Article 8 disproportionate.
(x) I also take into account, in an Article 8 balancing act context, the time that has passed from when the alleged offending conduct is said to have taken place to date, but I do not find that this tips the scales in favour of MP so as to render surrender Article 8 disproportionate."
(Emphasis added).
- District Judge Zani went on to consider section 25 of the 2003 Act, and found that it would not be unjust or oppressive to extradite Mr Hebda. The District Judge's reasoning was as follows:
"193. I would refer the parties to some of my observations under the Article 8 challenge as set out heretofore.
194. Dr Anderson does not profess to be an expert on Polish prison conditions. He made some rather vague and generalised remarks in respect of anecdotal experience of unspecified clients of his, who were said to have been previously imprisoned in Poland. Rather unhelpfully he was unable to provide any details as to the location of the establishment(s) within the Polish prison estate or when this had occurred. I do not find that he was able to assist in respect of this aspect of the case.
195. So far as the joint report provided by Mr Pietrzak and Miss Dabowska (dated 4th November 2021) is concerned, I find that it is of limited assistance. It is an amalgam of general and rather stale materials. They add, at paragraph 42: 'The subject of the health care system in prisons is not widely discussed. Additionally, there are not many reports and information available on this subject, especially current one'.
196. Having analysed the evidence received, including that provided by Dr Furtado, I am satisfied that any attempt to take his life will be as a result of a decision he chooses to make as opposed to an action over which, in effect, he has no control.
197. As mentioned heretofore, Dr Furtado has produced 3 reports dated 15th September 2021, 18th November 2021 and 12th July 2022, each of which I have considered in detail.
198. I have taken note of a number of concerns about the RPs mental health as expressed by Dr Furtado in his 1st reports it is important to take account of the most recent addendum report which states that his mental health has improved substantially in recent months (see paras 2.10-2.14). Mr Hebda 'does not feel helpless' (2.16), his depressive condition has improved, and his alcohol consumption is said to be under control. The RP is able to maintain full time employment, to drive, to tend to his garden and to attend parties with friends.
199. Having given careful consideration to the contents of Dr Furtado`s reports as well as the evidence provided by EH and his family members, I am not persuaded that EH has vaulted the high hurdle needed to succeed in this challenge and accordingly it must fail".
(Emphasis added).
The appeal
- Mr Hebda appeals from the decision of District Judge Zani on two grounds.
(i) That the District Judge erred in his decision in finding that extradition is compliant with his rights under Article 8; and
(ii) That the District Judge erred when he concluded that extradition to Poland is not barred under section 25 of the 2003 Act.
Mr Hebda also seeks to adduce fresh evidence.
- Permission to appeal was granted by Cavanagh J on 19 April 2024. The question as to whether to permit the fresh evidence was left to be decided by the judge at the substantive hearing. I considered the fresh evidence de bene esse, and permitted the Respondent to cross-examine two experts: Dr Krjles and Dr Furtado.
The fresh evidence
- The fresh evidence consisted of 3 reports from Dr Sanya Krljes (31 October 2023, 14 March 2024 and 18 February 2025), and 3 reports from Dr Furtado (13 August 2023, 10 April 2024 and 13 February 2025), as well as a further statement from Mr Hebda's son Wojciech, and a statement from Lukasz Stachura who is the partner of Mr Hebda's daughter Maria. There were also medical records from HMP Wandsworth, where Mr Hebda had been remanded by District Judge Zani until his release in May 2024.
- The fresh evidence addressed Mr Hebda's further suicide attempt in June 2023, as well as a further suicide attempt at HMP Wandsworth on 10 October 2023, and more generally dealt with Mr Hebda's mental health and state. Ms Burton, who appeared on behalf of the Respondent, accepted that the fresh evidence satisfied the first of the tests in Hungary v Fenveysi [2009] EWHC 231 (Admin) in that it was not available at the time of the hearing before District Judge Zani. Ms Burton contended, however, that the second stage of Fenveysi was not satisfied as the evidence was not "decisive".
(a) Dr Krjles' evidence
- Dr. Krjles is a Consultant Clinical Psychologist. In her first report (dated 31 October 2023), she described her assessment of Mr Hebda whilst he was detained in HMP Wandsworth. Dr Krjles stated that:
"Mr Hebda presented as a man in his 60s with a good level of personal hygiene. He exhibited relatively good eye contact. His mood was objectively dysthymic, and there was evidence of irritable mood. He was tearful on several occasions throughout the interview and needed some time to compose himself. He described his mood as "really bad" and reported ongoing problems with sleep. He told me that he had lost 10 kg in weight over the past three months which he attributed to the combination of poor appetite and substandard prison food.
Mr Hebda acknowledged suicidal ideation and added, "I have no reason to live". He told me that he had plans to end his life but refused to share them with me so that he could not be prevented from carrying them out. Mr Hebda complained about the suboptimal conditions at HMP Wandsworth and highlighted that he was receiving very little support from the health team. He told me that he was in a single cell which he preferred. He said, "They put me in a cell with somebody who had mental health problems. I told them that if I had to share a cell with somebody, I will kill myself. So, they put me in a single cell.
. . .
Mr Hebda stated that he had not attempted suicide whilst at HMP Wandsworth despite experiencing ongoing suicidal thoughts. He explained that his family are his main protective factor and highlighted that he would act on his thoughts if he were to be extradited to Poland".
- When asked his views about being extradited to Poland, Mr Hebda was reported to have said to Dr Krjles that:
"I am not going to Poland. Poland is not a country of law; it's the worst country in the EU. I did nothing wrong. I was on bail for three years, and I was fine." Mr Hebda told me that he would attempt suicide if he were to be extradited. He said, "I wrote a letter to my family, and I am ready for anything. I won't tell you how I would do it because they would stop me. If I go to Poland, I will kill myself but not if I am in the UK. The hope of seeing my children makes me want to live."
- In Dr Krjles' opinion, Mr Hebda was suffering from Major Depressive Disorder. Dr Krjles noted that Mr Hebda had suffered from alcohol use disorder over the past few years, and in her opinion it was "likely that the combination of low mood, alcohol misuse and feelings of hopelessness resulted in suicidal ideation and self-harming behaviour". Dr Krjles disagreed with Dr Anderson (whose evidence had been before District Judge Zani) that Mr Hebda met the diagnoses of traumatic brain injury or dementia. In her opinion, Mr Hebda suffered with depression and was at risk of future suicide attempts.
- Dr Krjles was of the view that the prison environment had some protective role in terms of Mr Hebda's risk to self, possibly by enforcing alcohol abstinence. In her opinion, alcohol misuse had been a major destabilising factor for Mr Hebda leading to impulsive behaviour and deliberate acts of self-harm. Dr Krjles recommended psychological intervention for Mr Hebda focusing on his low mood and negative thinking style. Dr Krjles expressed the view that Mr Hebda's extradition and incarceration in Poland "would likely worsen his mental state and result in a sense of hopelessness which might reduce his threshold for deliberate self-harm. Older people who find themselves unexpectedly alone due to sudden displacement and separation from friends or family are at particular risk of depression, suicide and death".
- With respect to the risk of suicide if Mr Hebda was returned to Poland, Dr Krjles stated:
"Mr Hebda is adamant that he would end his life if he is to be returned to Poland. In my opinion, if extradition is allowed his suicide risk will likely escalate. He already has major risk factors for suicide: previous self-harm and suicide attempts, alcohol misuse, depression, and impulsivity. Mr Hebda's risk of Clinical Psychology Court Report Mr Edmund Hebda impulsive (i.e., involuntary) self-harm/suicide would be significantly elevated in the context of alcohol intoxication as it occurred in 2018 and June 2023 because it would impair his ability to rationally consider the consequences of his actions".
Dr Krjles also stated that:
"If extradition is granted, Mr Hebda would need to be on constant observations to lessen the risk of suicide, but if he intends to kill himself, he will likely find a way to do it. Appropriate pharmacotherapy would be essential to mitigate the risk of suicide during the transfer to Poland."
- In her second report, written on 14 March 2024, Dr Krjles described what Mr Hebda had said to her about his attempted suicide in HMP Wandsworth:
"Mr Hebda told me that he had attempted suicide in October 2023. He stated that he had planned to take an overdose and managed to collect a large number of pills, "100s", over a period of a few months. He explained that he "wanted to go" and noted that he had felt "angry at the whole situation" and wanted to "punish those who did not take [him] seriously".
- Dr Krjles explored Mr Hebda's risk of suicide. She reported that:
"He told me that his "situation [had] changed" and categorically denied any thoughts, intent or plans to self-harm. He emphasised that he had "a plan", which gave him a sense of purpose. He stated repeatedly, "I want to go to Poland and deal with the outstanding case and clear my name." He told me that he and his family were planning to "collect [their] national insurance" and move to Germany. He stated on several occasions that he believed he would have never been incarcerated if he were living in Germany. He expressed his anger towards his daughters who reportedly "dragged" him to the UK. I asked him if he would commit suicide if he were to be extradited to Poland, and he said," No, the priorities have changed. There was a recent election in Poland, and the policies are changing."
- In her opinion, Dr Krjles explained that there appeared to have been "a significant change in Mr Hebda's mental state since September 2023 when he reported low mood and feelings of hopelessness. In the last two interviews, he presented with an elated mood, thought disorder and slight paranoia". As a consequence, it was very difficult for Dr Krjles to assess Mr Hebda's current risk to self. Dr Krjles concluded, however, that "Given his history of past suicide attempts and current mental state, I believe that Mr Hebda continues to be at risk of significant self harm/suicide even if he abstains from alcohol".
- In her third report (18 February 2025), Dr Krjles stated that in her conversation with Mr Hebda he had told her that he remained anxious about being extradited to Poland, and that "he would die if he were to be extradited as he would no longer have the support from his family. He also indicated that he would attempt suicide, but he was unable or unwilling to share further details on that".
- Dr Krjles discussed treatment possibilities. She stated that Mr Hebda's "responses suggest an acknowledgement of important problems and the perception of a need for help in dealing with these problems. He reports a positive attitude towards the possibility of personal change, the value of therapy, and the importance of personal responsibility". Dr Krjles' view was, however, that treatment would be "fairly challenging, with a difficult treatment process and the probability of reversals". Dr Krjles noted that Mr Hebda had not sought help about his mental health difficulties since his release from prison, and that there had not been any further episodes of self-harm.
- Dr Krjles up-to-date opinion was that:
"Mr Hebda has made some progress since his release from prison, as there have been no further suicide attempts. He has not presented to his GP with any mental health difficulties. However, he continues to experience mood fluctuations and irritability despite being on antidepressant medication. In my opinion, whilst there is some evidence of exaggeration, possibly in an attempt to communicate his distress, he continues to meet the criteria for depressive disorder. Mr Hebda would benefit from the opportunity to engage in a psychological treatment, such as cognitive behavioural therapy (CBT), that would allow him to address his negative thought patterns and mood difficulties. With the appropriate treatment, he would be able to make significant progress.
…
It is of note that Mr Hebda has not engaged in any psychological interventions or developed new coping skills since I last saw him. There is a well-documented history of past suicide attempts. He continues to have a negative view of the world and sees himself as unable to cope with stress. Therefore, in the event of extradition, his mental health would likely deteriorate, and he would present a risk of suicide.
In such an event, his pharmacotherapy should be reviewed, and he should be offered a psychological treatment to help him acquire the necessary coping strategies. However, it is difficult to predict if Mr Hebda could benefit from such treatment. He tends to harbour significant mistrust of others, and he appears to lack the ability to reflect on his emotions and behaviour, which might be a stumbling block for a meaningful engagement in therapy".
- In her oral evidence at the hearing before me, Dr Krjles accepted that Mr Hebda had expressed a clear intention of his wish to end his life; that when in HMP Wandsworth he had taken premeditated steps to prepare for his suicide attempt and concealed his conduct from prison officers. In the circumstances, Dr Krjles accepted that Mr Hebda's planning for his suicide attempt was not impulsive, distinguishing his situation from someone who, in a particularly difficult state of mind, makes an opportunistic attempt to take their life by, for instance, picking up a kitchen knife in the spur of the moment.
- Dr Krjles was asked about Mr Hebda's attitude towards therapy. Dr Krjles said that for it to be effective, the therapy needed to be culturally sensitive and tailored towards concrete problems. Dr Krjles stated that Mr Hebda's family should be involved as it was necessary for Mr Hebda to practice the skills that he learned in the therapy sessions. Dr Krjles stated that between 16 to 20 sessions were usually needed. Dr Krjles considered that the amount of counselling that Mr Hebda whilst in HMP Wandsworth - 4 sessions of 15-30 minutes each – was inadequate.
- With respect to Mr Hebda's family being a protective factor for him, Dr Krjles said that it was not sufficient for Mr Hebda to communicate with his family by telephone or video. Mr Hebda relied on them on a daily basis. It was not just a case of them checking in with him; they needed to be around to respond to his mood changes.
- Dr Krjles explained that the core problem for Mr Hebda was his depressive disorder. He sees the world in a negative way, he feels hopeless and miserable and cannot see a way forward. Mr Hebda's mental health problem is driving the collection of pills, and he overdoses when he has a bad day. The overdose is an impulsive act: Mr Hebda acts in an emotional state without thinking things through. For Dr Krjles that impulse arises from, or is linked to, Mr Hebda's depressive disorder. When asked specifically whether Mr Hebda was exercising a choice to end his life, Dr Krjles said "no".
(b) Dr Furtado's evidence
- In Dr Furtado's report of 13 August 2023, he referred to a conversation that he had with Mr Hebda shortly after he had been detained at HMP Wandsworth. At that point in time, Dr Furtado's view was that Mr Hebda was suffering from a moderate depressive disorder.
- Dr Furtado reported that in the weeks leading up to District Judge Zani's decision Mr Hebda experienced "a worsening of his mental state. It appears that this led to him taking an impulsive but significant overdose of medication necessitating hospital admission". Dr Furtado reported that Mr Hebda had given him a version of events of his overdose which was inconsistent with what actually happened, and that Mr Hebda's "deliberate attempt to minimise his risk of suicide" made risk assessment even more challenging.
- Dr Furtado stated that it was difficult to predict when Mr Hebda would engage in acts to end his life. Dr Furtado's opinion was that Mr Hebda's suicide attempts were likely to be due to his "inability to resist the impulse of wanting to end his life and feelings of hopelessness; he is likely to assume that he has no other choice". Dr Furtado explained that Mr Hebda's "recent incident is demonstrative of the impulsive nature of his acts and his crossing a "tipping point" in his mental health. This can be interpreted as "reaching the point when he was no longer able to resist the impulse of wanting to end his life".
- In his report of 11 April 2024, Dr Furtado described certain matters from Mr Hebda's medical records from his time at HMP Wandsworth:
- On 12 July 2023, Mr Hebda was placed on constant watch due to threats made to end his life. He was on venlafaxine (an anti-depressant) 187.5 mgs once a day modified release.
- On 10 October 2023, Mr Hebda was witnessed by an officer taking two to three handfuls of medication. He subsequently became unresponsive.
- On 8 November 2023, Mr Hebda was seen by a psychiatrist who opined that he had ongoing depressive symptoms and was tearful. His antidepressant medication was increased to 225 mgs per day.
Dr Furtado also referred to Mr Hebda having been placed on "ACCT" (that is, Assessment, Care in Custody and Teamwork), which is the care planning process for prisoners who are at risk of suicide or self-harm. Dr Furtado noted that this had been closed for Mr Hebda on 2 February 2024.
- Dr Furtado described what Mr Hebda had said about the suicide attempt in October 2023 and the lead up to it:
"…I took an overdose as I managed to get tablets in here…it was the second or third month of being in prison…I must have taken about 200 to 300 tablets…I was prescribed the medication and I collected them…I was taking the tablets from the hatch and was bringing it to my cell…no one was observing me taking them…nobody checks anything in prison…". When asked what led to him taking the overdose on the day he did, he stated "…they were doing a cell to cell search and I had had enough…I didn't want them to find it…if I didn't take it that day then I would have taken it another day…". He added "…I didn't give it much thought that day…it is possible that I might have thrown it away or I might have taken it another day…if they found it they would have punished me rather than trying to help me…". Mr Hebda was inconsistent in his responses stating that he collected them to throw the medication away but then was unable to explain clearly why he took the overdose if the aim was to throw it all away.
. . .
He told me that his ACCT meant that he was being observed every thirty minutes and that he started taking the overdose in between his observations. He stated that it was an impulsive act on the day. He stated that when he woke up in the morning, he had no intention of taking an overdose. When asked if he was pleased to be alive; he stated "…coming to England was a big mistake…I wished I stayed in Poland…".
- Dr Furtado's opinion was that Mr Hebda had a moderate depressive disorder; that there were inconsistencies in Mr Hebda's view with respect to his recent overdose, noting that Mr Hebda had stated that "he secreted the tablets with a view to throw them away but then took the overdose as he wanted to end his life". Dr Furtado maintained his position that it was difficult to predict when Mr Hebda would engage in acts to end his life. Once again, Dr Furtado stated that Mr Hebda's suicidal attempts "are likely to be due to his inability to resist the impulse of wanting to end his life and feelings of hopelessness; he is likely to assume that he has no other choice".
- Dr Furtado noted that Mr Hebda was abstinent from alcohol. The fact that Mr Hebda attempted suicide in prison in the absence of alcohol consumption highlighted for Dr Furtado that Mr Hebda's "mental disorder and his extradition proceedings and the feelings of hopelessness and helplessness associated with it are the main driving factors for his suicide attempts." Dr Furtado added that:
"His incidents of suicide attempts including taking massive overdoses is demonstrative of the impulsive nature of his acts and him crossing a "tipping point" in his mental health. This can be interpreted as "reaching the point when he was no longer able to resist the impulse of wanting to end his life.
In my view this is based predominantly on the depressive symptoms that he presents with and the extradition proceedings that he is subject to. His current environment is unlikely to prevent him from ending his life but rather foster a sense of hopelessness. In my view, his mental health needs would be better met in the community via a Home Treatment Team or a community mental health team."
- In the report dated 13 February 2025, Dr Furtado set out Mr Hebda's concerns about being extradited to Poland:
"He told me "…I am scared and afraid of the prisons in Poland…I am scared for my life…the prosecutor told the prison wardens and I was abused and harassed by them…the staff didn't intervene…the prison wardens are brutal…they want me to be a scapegoat…I am not guilty but I am being accused and they will make me pay…I have no family in Poland apart from my son…all the others are in the UK…even my son in Poland, he lives far away from any prison…".
- Dr Furtado reported that Mr Hebda told him that he had no current thoughts of self-harm and suicide, but had fleeting thoughts of suicide when thinking of the case against him. Dr Furtado said that Mr Hebda was insightful and recognised that his risk of suicide would probably increase as the date of his court hearing came closer. Dr Furtado said that Mr Hebda told him that when stressed "he is unable to think rationally, only thinks about himself and is unable to think about factors that would prevent him from harming himself". When asked what he might do to kill himself, Mr Hebda stated "…I haven't thought of it…it will be impulsive . . . if the decision is made to extradite me, I wouldn't have to kill myself…poorly controlled diabetes is a killer…if in Poland, I will stop my medication…I didn't commit the crime, so I won't allow anyone to punish me…I have my own self-respect…". The reference to diabetes was to a medical condition that Mr Hebda was now suffering from.
- Dr Furtado expressed the view that Mr Hebda was suffering from a mild to moderate depressive disorder. Dr Furtado recommended that Mr Hebda should be offered Cognitive Behavioural Therapy, a recognised intervention for depression. Dr Furtado reported that his view of the level of risk remained the same as in his previous report:
"His incidents of suicide attempts including taking overdoses is demonstrative of the impulsive nature of his acts and him crossing a "tipping point" in his mental health. This can be interpreted as "reaching the point when he was no longer able to resist the impulse of wanting to end his life". In my view this is based predominantly on the depressive symptoms that he presents with and the extradition proceedings that he is subject to".
- In his oral evidence before me, Dr Furtado explained that Mr Hebda was receiving the maximum dosage of the antidepressant medication. This was, in his opinion, likely to have had a positive effect on Mr Hebda's depression. Mr Hebda's more recent improvement – he was now suffering from a mild to moderate depression – was probably caused by his being released from custody and having contact with his family. Dr Furtado said that when Mr Hebda was stockpiling medication, he was not being concordant with his prescription and so would not have had the beneficial effects of taking regular anti-depressants. This meant that Mr Hebda would experience symptoms of depression which would have a negative effect on him and would not have reduced the risk of suicide.
- Dr Furtado accepted that the collection of medication by Mr Hebda signified an intention to kill himself, but did not signify when he would do so. Dr Furtado considered that Mr Hebda was taking preparatory steps in the expectation of there being a time when he would impulsively act on the thought to take his life. Dr Furtado said that there was no guarantee, however, that Mr Hebda would take an overdose. When asked specifically whether the preparatory acts demonstrated a rational thought process by Mr Hebda that he would take his life when things were too much for him, Dr Furtado answered "no". Dr Furtado said that Mr Hebda's thinking was clouded by his depressive symptoms; he was negative about things around him, and felt hopeless and helpless at times. On occasion, Mr Hebda felt he had no way out.
- Dr Furtado's explanation for what took place at HMP Wandsworth when Mr Hebda overdosed was that this was not a rational and thought through act. Rather, Dr Furtado said that taking the medication on that day was impulsive; external circumstances had forced Mr Hebda's hand.
- Dr Furtado believed that if Mr Hebda engaged with Cognitive Behavioural Therapy this would reduce his risk of completing suicide. Dr Furtado was of the view, however, that the stresses associated with the extradition proceedings might undo some of the positive effects of that therapy. Extradition was a stressor which would worsen Mr Hebda's symptoms; it was likely to have a negative effect on him. Dr Furtado's view was that there was a very close link between the extradition proceedings and Mr Hebda's depression symptomology. A decision to extradite Mr Hebda would lead to a worsening of his depressive symptoms, including his feeling hopeless and helpless as well as Mr Hebda's view that external factors (such as his family) were no longer going to be available to him. This would lead to an increase in the risk of suicide.
- Dr Furtado was asked what the situation would be if Mr Hebda was monitored on a 1:1 basis, continued his medication, and received psychological therapy. Dr Furtado said that this would reduce the risk of suicide. Nevertheless, Dr Furtado expressed the view that Mr Hebda's previous remand into custody did not fill him with optimism.
- Dr Furtado was asked what he meant when he referred to the term "impulse". He said that it was an inability to think through one's actions at a point in time before going through with an act. This could be a matter of seconds or minutes. It was the period of time around an incident or act during in which a person was unable to think things through rationally by virtue of circumstances.
- Dr Furtado agreed that suicide could be a rational act, and that even those suffering from a depressive illness might be capable of making a rational decision to take their own life. Nevertheless, Dr Furtado considered that depression can have an impact on the ability of an individual to make a rational decision of that kind. In Dr Furtado's view, Mr Hebda's attempts to take his own life were very closely linked to his depression. For Dr Furtado this view was strengthened by the fact that Mr Hebda had attempted to take his own life before the extradition proceedings commenced, and by Mr Hebda minimising his suicide attempts when he assessed him.
Submissions on the appeal
- Mr Swain, who appeared for Mr Hebda at the hearing below and on appeal, contended that District Judge Zani had been wrong to conclude that extradition was compatible with Article 8 of the Convention, and that extradition would not be unjust or oppressive by virtue of Mr Hebda's mental health and, in particular, his risk of suicide. The Court could decide this in Mr Hebda's favour, without looking at the fresh evidence. If the fresh evidence was looked at, however, Mr Swain submitted that this was decisive of the situation in Mr Hebda's favour.
- Mr Swain submitted that the District Judge erred by ignoring a significant part of the expert evidence that was before him: in particular, the bulk of Dr Anderson's evidence. Further, the District Judge erred in his consideration of the mental health evidence of Dr Anderson and Dr Furtado. The District Judge should have concluded that Mr Hebda's suicidal impulse was not one over which he had any control. That was something which Dr Furtado had set out in his reports and maintained when subject to cross-examination. It was supported by Dr Anderson's evidence that "if [the Appellant] is extradited to Poland [it] is highly likely that the symptoms increase in the intensity would be such that he has no control over his emotions and would find a way to commit suicide in Polish custody".
- Mr Swain submitted that this evidence satisfied the fourth proposition in Turner v United States of America [2012] EWHC 2426 (Admin) (discussed further below): "The mental condition of the person must be such that it removes the capacity to resist the impulse to commit suicide, otherwise it will not be his mental condition but his own voluntary act which puts him at risk of dying and if that is the case there is no oppression in ordering extradition". Mr Swain submitted that the question for the District Judge (and on appeal to this Court) was whether the depressive condition removed the capacity of the requested person to come to a rational and thought-through decision to kill themself on a particular occasion.
- Mr Swain contended that the District Judge had also erred in his consideration of the appropriate treatment needed by Mr Hebda. The evidence from Dr Furtado was that Mr Hebda would need 24-hour 1:1 supervision to prevent him killing himself if he was returned to Poland; that there needed to be assurances that Mr Hebda's depression would be adequately and robustly treated and that plans were in place for persons with relevant expertise to assess his cognitive problems. In light of the evidence of his needs, specific information as to what treatment would be provided for Mr Hebda should have been forthcoming from the Judicial Authority. The District Judge said that the material that was before him was of "limited assistance" and was "an amalgam of general and rather stale materials", but Mr Swain argued that it demonstrated a consistent picture as to the inadequacy of the treatment of suicide risks in Polish prisons.
- Mr Swain submitted that the report prepared by Mr Pietrzak and Miss Dabrowska dated 4 November 2021, which was before the District Judge, showed that there was a problem with suicides in Polish prisons and that in 2016 an expert had been tasked to assess the relevant Prison Service Instruction on the prevention of committing suicide by prisoners. Despite changes to that regime in 2020, no significant changes had been introduced. Mr Swain submitted that this meant that the issues with monitored cells, lack of psychologists, need for training, verification of suicide risk assessments, and inadequate monitoring of cells had not been remedied, and that the District Judge was therefore wrong to dismiss that evidence, given the issue of suicidal ideation in Mr Hebda's case.
- Mr Swain submitted that the case against extradition was put beyond doubt if the fresh evidence was considered. Reliance was placed, in particular, on Dr Furtado's opinion that the incidents of attempted suicide were demonstrative of the impulsive nature of Mr Hebda's acts, and cross a "tipping point" in his mental health. This was also supported by Dr Krjles' evidence. There was a very strong risk that Mr Hebda would attempt to take his own life if he was extradited to Poland; this was not a voluntary act on his part, and the Polish Judicial authorities could not satisfy the Court that they could offer the necessary treatment or support for Mr Hebda so as to mitigate the risk. Not enough experts were available; there were infrastructure problems; there had been numerous suicides and there was not appropriate monitoring even when that was required. (When asked by the Court whether there were other cases involving Poland and the treatment that was available for those at risk of suicide, Mr Swain quite rightly drew my attention to the decision of Collins Rice J in Szentak v Regional Court of Lublin, Poland [2023] EWHC 1596 (Admin). I will refer to this in more detail in my discussion below).
- Ms Burton resisted the appeal on behalf of the Respondent. She contended that District Judge Zani was not wrong in reaching the conclusion that he did with respect to Article 8 and section 25 of the 2003 Act. The District Judge was entitled to reach the view that further suicide attempts by Mr Hebda would not result from an uncontrollable impulse arising from his mental condition, but would result from a decision taken by him assessing the circumstances as he perceives them to be if returned. Furthermore, Mr Hebda had failed to demonstrate that the conditions which he would be exposed to if he was returned to Poland rendered extradition oppressive. There was a presumption that the requesting country – Poland was a member of the European Union and was a signatory to the European Convention on Human Rights – would provide the necessary treatment for Mr Hebda and he had not produced strong or cogent evidence to rebut that presumption.
- Ms Burton submitted that the fresh evidence did not lead to a different conclusion to that reached by the District Judge. The two recent suicide attempts followed the stockpiling by Mr Hebda of medication. This indicates a well thought out, intentional and voluntary attempt by Mr Hebda to take his own life. This was also supported by the fact that Mr Hebda remained a significant risk of suicide even though there had been a reduction in the severity of his depression: Ms Burton submitted that this suggests that it was not the severity of Mr Hebda's depressive disorder, or mental condition, which impacts the suicide risk.
- Ms Burton also submitted that not all steps had been taken to mitigate against the risk of Mr Hebda committing suicide. He had not yet received meaningful psychotherapeutic treatment. Such treatment could be beneficial to manage the risk of suicide and deterioration of Mr Hebda's mental health in the event of extradition, and the Polish authorities can be presumed to provide appropriate treatment. Ms Burton pointed out that this could be assisted by the authorities in this country ensuring that Mr Hebda's medical records were provided, along with the expert reports, to the Polish authorities. Ms Burton also pointed out that the requesting authority did not need to provide treatment to an "absolute standard". Ms Burton reminded the Court that a person does not escape a sentence of imprisonment in the United Kingdom simply by pointing to the high risk of suicide.
- Ms Burton also pointed out that the concept of oppression within section 25 of the 2003 Act entails a value judgment: see Modi v Government of India [2022] EWHC 2829 (Admin) at [120]. In exercising that judgment, the Court should take into account that Mr Hebda's extradition was sought for serious, organised, high value fraudulent offending. Although Mr Hebda suffered from depression and presented a significant risk of suicide on surrender, Ms Burton argued that his condition could be managed and treated and it would not be oppressive to extradite him.
Discussion
- As already explained, the key issue on this appeal concerns Mr Hebda's risk of suicide: whether the risk of suicide (among other matters) means that the extradition of Mr Hebda is a disproportionate interference with his Article 8 rights, and/or whether the risk of suicide renders extradition to Poland "oppressive" contrary to section 25 of the 2003 Act. There has been considerable case law with respect to the risk of suicide and section 25 of the 2003 Act and I will examine that first.
(i) The relevant legal principles
- Section 25 of the 2003 Act provides that:
"(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".
- In Government of South Africa v Dewani [2012] EWHC 842 (Admin), the Divisional Court considered section 91 of the 2003 Act which is the exact analogue to section 25 for cases that fall outside of Part 1 of the Act. They explained that these provisions were introduced into the extradition procedure to give the Court, rather than the Secretary of State, the duty to make the decision in cases of ill health. At [73], the Divisional Court held that "The term "unjust or oppressive" requires regard to be had to all the relevant circumstances, including the fact that extradition is ordinarily likely to cause stress and hardship; neither of those is sufficient". In Gomes and Goodyear v Trinidad [2009] 1 WLR 1038, the House of Lords had held, in the context of section 82 of the 2003 Act (barring extradition to a category 2 territory by reason of the passage of time), that in considering the requirement of oppression, hardship was not enough.
- The relevant principles that should be considered when the Court has to determine whether it would be unjust or oppressive to return a person to the state requesting extradition because of the risk of suicide were summarised by the Divisional Court in Turner v Government of the United States of America [2012] EWHC 2426 (Admin) at [28][1]:
"(1) the court has to form an overall judgment on the facts of the particular case;
(2) 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;
(3) The court must assess the mental condition of the person threatened with extradition and determine if it is linked to a risk of a suicide attempt if the extradition order were to be made. There has to be a "substantial risk that [the appellant] will commit suicide". The question is whether, on the evidence the risk of the appellant succeeding in committing suicide, whatever steps are taken is sufficiently great to result in a finding of oppression;
(4) The mental condition of the person must be such that it removes his capacity to resist the impulse to commit suicide, otherwise it will not be his mental condition but his own voluntary act which puts him at risk of dying and if that is the case there is no oppression in ordering extradition;
(5) On the evidence, is the risk that the person will succeed in committing suicide, whatever steps are taken, sufficiently great to result in a finding of oppression;
(6) Are there appropriate arrangements in place in the prison system of the country to which extradition is sought so that those authorities can cope properly with the person's mental condition and the risk of suicide;
(7) There is a public interest in giving effect to treaty obligations and this is an important factor to have in mind".
- On the facts of Turner, the Divisional Court (per Aikens LJ) at [38] found that "Florida has the proper facilities to cope both with Ms Turner's mental illness and, so far as anyone can, the risk of her attempting to commit suicide if extradited". With respect to a suicide attempt that had been made on 10 July 2012, this was found to have been precipitated by an application to revoke Ms Turner's bail, and according to Aikens LJ was "a carefully controlled one. It was made after an apparently rational review of choices": see [42]-[43].
- At [44], Aikens LJ stated that:
"As I read Dr Hayes' reports, although he regards the risk of Ms Turner attempting to commit suicide as substantial or high, he does not say that this risk is one that is brought about by her mental condition or her depressive illness; rather it is brought about by the fact that she might be extradited. Although Ms Turner's mental condition evidences clinical depression and some features of post traumatic disorder, she appears to remain rational. Any decision to make an attempt to take her life will, on the evidence, be taken because Ms Turner has decided to make a choice to do so".
At [71], Globe J (who agreed with Aikens LJ) stated that:
"Her stated intention to commit suicide in the future remains "adamant", but in my judgment that remains a matter of choice and not because her mental condition is such as to remove her capacity to resist the impulse to commit suicide."
- In Modi, the Divisional Court gave careful consideration to Turner proposition (4). The appeal in Modi concerned the question of whether the District Judge had been wrong to conclude that extradition should be ordered in light of the evidence as to the severity of the appellant's depression, the high risk of suicide and the adequacy of any measures capable of preventing successful suicide attempts in the prison to which he would be returned.
- The Divisional Court examined the evidence (which included fresh evidence since the decision ordering extradition), and recorded that Mr Modi suffered from a depressive illness which is recurrent in nature and which fluctuates in severity; with the predominant level described as being of moderate severity, with features that tend to suggest a less severe case within that categorisation. Further, that as the extradition proceedings were a causal factor in his depression, an adverse decision in the extradition proceedings could lead to an increase in the severity of his depressive illness. His suicide risk in the context of extradition could be described as "elevated" when compared with the general population and has been described as "substantial": it would be reasonable to describe the risk as "high or substantial": see [22], [63] and [65].
- The Divisional Court observed at [120] that the "concept of oppression entails a value judgment". The focus could not solely be on the severity of the medical condition or risk of suicide as – in accordance with Turner proposition (7) – there is a cogent public interest in extraditing individuals who have committed serious offences. The Divisional Court also noted that "the reduction of the risk to an acceptable standard does not impose an absolute standard", referring to Turner at [38], where Aiken LJ had stated that he was quite satisfied that Florida – the State to which the requested person in that case would be extradited – had "the proper facilities to cope both with Ms Turner's mental illness and, so far as anyone can, the risk of her attempting to commit suicide if extradited" (emphasis supplied in Modi).
- Looking specifically at Turner proposition (4), the Divisional Court stated at [125] that:
"The difficulty arises because the term "impulse" means one thing to a psychiatrist or clinical psychologist and another to a lawyer or lay person. In its technical meaning, an impulse is a sudden, forceful, urge to do something, which the person who is subject to the impulse may find difficult or impossible to resist. It is a feature of many personality disorders, and impulse control disorder features both in ICD11 and DSM-V. If proposition (4) in Turner were using "impulse" in this technical sense, the consequence would be that someone with very severe depression who was not impulsive would fail at this hurdle whereas someone with less severe depression but a comorbid personality disorder might surmount it."
- The Divisional Court stated that the reference to "capacity" in Turner proposition (4) did not mean "capacity" in the sense understood by the Mental Capacity Act 2015. The Divisional Court went on to say that:
"In our judgment, to the extent that Turner proposition (4) adds anything to propositions (3) and (5), its function is to indicate that in situations where the decision to commit suicide is voluntary, in the sense of being rational and thought-through, a finding of oppression should not be made. We heed Ms Malcolm's warning that it would be unwise to gloss Turner proposition (4) with some additional or alternative form of words which imports a specific causation test: the verb "linked" already appears in proposition (3). In particular, we would deprecate any attempt to introduce concepts of causation as are routinely applied in tort or contract: the fact that (in conventional causation terms) a person's depression would be either a cause or even the dominant cause of a person's decision to commit suicide does not mean or necessarily suggest that the act was not voluntary within the meaning of Turner proposition (4)."
(emphasis added).
- At [129], the Divisional Court cautioned that the Turner propositions were not to be treated as if they were embodied in a statute. Rather, "Turner proposition (4) should be read in a common-sense, broad-brush way giving full effect to the question whether the act of suicide would be the person's voluntary act".
- With respect to the availability of medical treatment in the requesting state, and how the risk of suicide would be addressed, this was considered by Ouseley J in Mikolajcyk v Wroclaw District Court [2010] EWHC 3503 (Admin). Ouseley J held that it was not necessary for the requesting state (in that case Poland) to demonstrate that it will replicate the conditions for medical treatment which an appellant enjoys either in prison in the United Kingdom, or out of prison in the United Kingdom. Even if the treatment in Poland was less satisfactory than in the United Kingdom, that does not mean that extradition is "oppressive". The appellant had the burden of demonstrating that that is so.
- The Divisional Court looked at the Turner propositions (3), (5) and (6) in Wolkowicz v Poland [2013] 1 WLR 2402 at [10]. The Court observed that the key issue in almost every case would be the measures that are in place to prevent any attempt at suicide by a requested person with a mental illness being successful, and the following approach was approved:
"1. First, the position whilst the requested person is being held in custody in the United Kingdom is clear. . . [A] person does not escape a sentence of imprisonment in the UK simply by pointing to the high risk of suicide. The court relies on the Executive branch of the state to implement measures to care for the prisoner . . .
2. Second, when the requested person is being transferred to the requesting state, arrangements are made by the Serious Organised Crime Agency (SOCA) with the authorities of the requesting state to ensure that during the transfer proper arrangements are in place to prevent suicide in appropriate cases. . . [S]teps should ordinarily be taken in such cases to ensure that no attempt is made at suicide and proper preventative measures are in place. Medical records should be sent with the requested person and delivered to those who will have custody during transfer and in subsequent detention.
3. Third, when the requested person is received by the requesting state in the custodial institution in which he is to be held, it will ordinarily be presumed that the receiving state within the European Union will discharge its responsibilities to prevent the requested person committing suicide, in the absence of strong evidence to the contrary . . . In the absence of evidence to the necessary standard that calls into question the ability of the receiving state to discharge its responsibilities or a specific matter that gives cause for concern, it should not be necessary to require any assurances from requesting states within the European Union. It will therefore ordinarily be sufficient to rely on the presumption. It is therefore only in a very rare case that a requested person will be likely to establish that measures to prevent a substantial risk of suicide will not be effective".
- In Szentak (the case referred to the Court by Mr Swain), Collins Rice J considered the availability of medical treatment in Poland for the appellant's medical condition (back pain, PTSD and moderately severe depression) and the availability of support for those at risk of suicide. Collins Rice J referred to the Polish authorities' policy on suicide prevention in prisons as set out in a letter of 22 March 2023 at [32], and observed:
"That confirms that risk management regimes are responsive to individuals' circumstances with the most intensive monitoring and support provided to those with a history of previous attempts and at highest risk. It provides, in such cases, for 'ensuring accessibility to medical, educational and psychological care', individual mental health, including psychiatric, care as appropriate, and supervision and monitoring up to and including on a continuous basis. Detailed provision is made as to the engagement of health professionals as necessary, and in particular in relation to particularly high-risk moments including on first admission."
- At [47], Collins Rice J found that:
"The evidence now before the Court is that the Polish authorities could and would implement appropriate suicide safeguarding in a prison environment for Mr Szentak".
(ii) Applying the law to the present facts
- Against this background, I have considered the evidence produced and the submissions provided with anxious scrutiny. This is a case where, it is accepted by both sides, that there is a strong probability that Mr Hebda will attempt suicide if he is extradited to Poland and, in light of the way that he has conducted himself previously, in particular whilst detained at HMP Wandsworth, there is a real possibility that the suicide attempt will succeed whatever measures are put in place to treat his condition or to monitor his situation.
- There was much evidence before the District Judge as to the various statements made by Mr Hebda about taking his life if he was to be extradited to Poland. This gave rise to the possible inference that any attempted suicide by Mr Hebda would be a "choice" or a "voluntary" decision falling within the description of Turner proposition 4. Nevertheless, that possible inference needed to be considered in the context of the expert evidence of Dr Furtado, as expressed in his written statements and (it would appear) at the hearing itself that Mr Hebda had no control over his actions and was not making a rational "decision" to end his life. Dr Furtado's consistent evidence was that Mr Hebda's previous suicidal acts were rooted in Mr Hebda's depressive disorder which affects his "ability to think through his actions and problem solve"; and that Mr Hebda was "likely to assume that he has no other choice"; that his suicidal attempts are "likely to be due to his inability to resist the impulse of wanting to end his life and feelings of hopelessness". That evidence needed to be grappled with by the District Judge, as it sought to put Mr Hebda's various statements about committing suicide if he was returned to Poland in context. Even though the District Judge stated that he had analysed all of the evidence, including that of Dr Furtado (see [196]-[198]), there is no reference to these statements of opinion in the judgment and there is no explanation for why the District Judge disagreed with Dr Furtado's analysis in reaching his finding that (i) any attempt by Mr Hebda to end his life "would not be as a result of an uncontrollable impulse but would be as a result of a decision taken by [Mr Hebda] assessing the circumstances as he perceives them to be in the event of return", and (ii) any attempt by Mr Hebda to take his life will be "as a result of a decision he chooses to make as opposed to an action over which, in effect, he has no control".
- In my judgment, the failure to grapple with Dr Furtado's evidence, and the failure to explain why he was departing from it, was an error by District Judge Zani. I do not consider that it is appropriate to go on and ask the question whether, in light of this error, standing back and looking at all of the evidence that was before the District Judge, his decision as to section 25 of the 2003 Act or under Article 8 was "wrong": c.f. Love v Government of the United States of America [2018] 1 WLR 2889, [25]-[26]. To do that would be to ignore the considerable further evidence that has been put before the Court to reflect what has taken place since the District Judge made his decision, and which the Court is in a good position to evaluate given that oral evidence from the experts has been presented to the Court. In my judgment, the fresh evidence satisfies the second test in Fenveysi: as I will explain, it is decisive of the outcome.
- The evidence before the Court, along with the evidence that was before District Judge Zani, is that Mr Hebda is at a high risk of attempting suicide if he was extradited to Poland. It is clear that Mr Hebda suffers from a depressive illness. The severity of his depression has varied from time to time. Now that Mr Hebda is living in the community and in proximity to his family members, his situation has improved somewhat but, based on previous events, it is highly likely to worsen if extradition is ordered. There is no doubt that Mr Hebda's depression forms the backdrop to his suicide attempts. If Mr Hebda was not suffering from depression, there is no suggestion from the experts that he would have attempted to take his life on any occasion when he sought to do so.
- The evidence of Dr Furtado is that when Mr Hebda has attempted to take his own life this was not a matter of choice by him, or a rational decision that he was making. Rather, that at the different moments when the attempts were made, Mr Hebda was feeling so helpless and hopeless that he was unable to resist the impulse to take his own life and that his thought process was clouded by his depression. I found this evidence persuasive. It was an opinion that Dr Furtado had maintained over a period of several years, following a number of interviews with and assessments of Mr Hebda. It was supported by the evidence of Dr Krjles. It is also supported by fact that a suicide attempt was made in 2018, before the extradition proceedings were afoot.
- I acknowledge that Mr Hebda has repeatedly stated that if he was to be extradited to Poland he will seek to end his life. I also acknowledge that Mr Hebda has, in the past, taken steps to prepare for a suicide attempt. This strongly suggests that, at some level, Mr Hebda has made a decision to take his life if extradition does take place. Dr Furtado disputed that this was a rational decision by Mr Hebda. I have considerable doubts about this opinion as the statements were made by Mr Hebda on numerous occasions and to different people. Further, that the period of time spent concealing his stockpiling of pills in HMP Wandsworth was quite long. Dr Furtado also accepted that, in theory, a person with depression is capable of making a rational decision to end their life.
- Nevertheless, it is not necessary for me to reach a conclusion on this point. Whether or not Mr Hebda has made a rational decision that he will take his own life if he is extradited to Poland is not the question posed by Turner. I agree with Mr Swain's submission that the question that the Court needs to ask is whether the depressive condition removed the capacity of the requested person to come to a rational and thought-through decision to kill themself on a particular occasion. Turner proposition (4) is not directed at the general background or lead-up to a suicide attempt but is focused on the moment in time when suicide is attempted.
- Looking at the precise moment when suicide has been attempted by Mr Hebda I am satisfied that, in accordance with the evidence of Dr Furtado, Mr Hebda has crossed a "tipping point" in his mental health. It is at these moments that Mr Hebda feels so helpless and hopeless that he cannot resist the impulse to take his own life. That is most likely to be the case if extradition to Poland is ordered; whether the act of suicide is attempted in this country or in Poland.
- The next question that needs to be considered, therefore, is whether the Polish authorities will provide the support that can mitigate against the risk that Mr Hebda will attempt and then succeed in taking his own life, bearing in mind that an absolute standard of support is not required.
- In his submissions, Mr Swain challenged the quality of support that would be provided by the Polish authorities, contending that the information that was before District Judge Zani demonstrated a consistent picture as to the inadequacy of the treatment of suicide risks in Polish prisons. That material related to the period from 2016 to 2020, and was described by District Judge Zani as "stale". Nevertheless, that evidence did give rise to concern as to the ability of the Polish authorities to address the needs of those at risk of suicide, and Dr Furtado's specific evidence that Mr Hebda would require 24 hour 1:1 supervision (as set out in the judgment at [78]), required careful consideration by the District Judge. It does not appear that the District Judge specifically asked himself whether 24 hours 1:1 supervision – which is a very intensive level of supervision - could, or would, be provided by the Polish authorities. This was an error by the District Judge.
- The Respondent has not put in any evidence to satisfy the Court that that level of supervision would be made available to Mr Hebda if he was returned to Poland. Ms Burton has sought to rely on the general presumption that the Polish authorities can be expected to provide an appropriate level of support. It seems to me, however, that this is one of those rare cases where the presumption can be rebutted.
- Dr Furtado has maintained his opinion that 24 hours 1:1 supervision is required. That opinion is well founded on the evidence of what took place when Mr Hebda was at HMP Wandsworth. Even under the close scrutiny of the ACCT regime at HMP Wandsworth, Mr Hebda was able to collect medication surreptitiously and then take an overdose. There is no evidence from the Polish authorities to assure the Court that the level of supervision called for by Dr Furtado can, and will, be provided. Furthermore, it seems likely that even if Mr Hebda was provided by the Polish authorities with the kind of psychotherapeutic support recommended by Dr Krjles and Dr Furtado, this will not materially reduce the risk of suicide. That psychotherapeutic support will be provided in a context where Mr Hebda does not have the protective factors of family as, with the exception of one son, they do not live in Poland.
- I do not consider that the evidence provided by the Polish authorities to the Court in Szentak provides the necessary assurance that Mr Hebda will be supervised in the way recommended by Dr Furtado. The evidence before Collins Rice J in Szentak was that the Polish authorities had a suicide provision policy which addressed (a) the steps to be taken to raise issues immediately where there is a suggestion of a suicide threat, (b) immediate referral to a psychologist, (c) cells for the special monitoring of individuals who are at risk, (d) the provision of psychological aid including regular monitoring and (e) tailored support more generally in that particular case. That evidence does not specifically address, however, the circumstances of Mr Hebda's case where, as already explained, "24 hour 1:1 supervision [is required] to prevent him from killing himself".
- Against this background, I have to consider whether or not extradition to Poland would be oppressive. In making this decision, I am mindful that this entails a value judgment requiring consideration not only of the risk of suicide but also the cogent public interest in extraditing individuals who have committed serious offences. In this case, I am satisfied that extradition would be oppressive. Mr Hebda has attempted suicide on four occasions. This includes one attempt when he was detained in Poland in 2012, as well as one attempt when he was detained in HMP Wandsworth in 2023. If extradited to Poland, Mr Hebda will be without the protective factors of his former wife and of the family members who have been supporting him for the past decade or so. Whilst the offences for which Mr Hebda is sought are serious ones, they took place some considerable time ago (13-17 years ago), and significantly in my judgment, Mr Hebda has not been found guilty of any of them.
- I also consider that extradition to Poland would breach Mr Hebda's Article 8 rights, in light of the recent developments and evidence. The circumstances facing Mr Hebda fall into that category of quite exceptional cases where the strong presumption in favour of extradition, so as to give respect to international treaty obligations, to show respect to the Polish legal authorities, and to discourage individuals from viewing the United Kingdom as a safe haven for those fleeing criminal prosecution or sentencing, is outweighed by factors pointing against extradition. In this case, the following factors tilt the balance against extradition:
i) There will be very real hardship caused to Mr Hebda if he is extradited (the very strong risk of suicide, as well as the anguish and helplessness that he will no doubt endure for much of the time when he is in Poland, exacerbated by the absence of most of his close family members and former wife who reside in this country), and a considerable degree of hardship to his family members as they will be saddled with considerable anxiety as to how he will cope in Poland and will be fraught with worry that he will succeed in ending his own life; and
ii) Much time has passed since the alleged criminal conduct is said to have occurred: 13 to 17 years. Since that time, Mr Hebda has developed his life in the United Kingdom: including a period of work.
Conclusion
- For the foregoing reasons, therefore, I allow this appeal and quash the order for extradition.
