AC-2024-LON-002386 - [2025] EWHC 2999 (Admin)

Section 25 of the Act provides:

25 Physical or mental condition

(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.

The Appellant submitted that it would be unjust and oppressive to extradite him to Hungary because of his poor health, that permission should therefore be granted and that he should be discharged.

The Appellant’s detailed submissions before me focused on arguing that his health has deteriorated since extradition was ordered that his conditions are complex, and that the Respondent has failed to provide sufficient assurances of adequate care.

In considering section 25 of the Act the Court must determine whether extradition would be “unjust or oppressive” due to the Appellant’s physical or mental condition. That determination requires “intense focus” on the Appellant’s medical condition, what it means for his daily living, and what effects extradition and incarceration would have on him (see Magiera v District Court of Krakow, Poland [2017] EWHC 2757 (Admin)). The Court must then assess the extent to which any adverse effects or hardship can be met by the requesting state providing medical care or other arrangements. It may or may not be necessary to go beyond the assumptions which the court is entitled to make in relation to the provision of medical assistance. Extradition ordinarily causes stress and hardship, but neither factor alone is sufficient to engage the bar.

It would be difficult to conclude that there was anything other than an “intense focus” on the Appellant’s medical problems at the extradition hearing as well as a consideration of how he would cope in the prison system. Consideration of the issues raised under section 25 (and Article 8) and the Appellant’s state of health takes up the larger part of the judgment. The Judge had extensive medical evidence before her and the Appellant had the opportunity to give his own account of his condition and difficulties. Mr Paul, an orthopaedic consultant, dealt with the Appellant’s back pain and had confirmed that the Appellant required a ground floor cell with a toilet nearby due to his mobility problems. The Judge also considered Dr Burgin’s conclusions (a General Practitioner and Disability Analyst) regarding the Appellant’s “learned helplessness” and the potential benefits of a secure environment. Dr Burgin suggested that if the Appellant were incarcerated in the UK, the prison estate would assign him another inmate as a paid carer to assist. Dr Burgin had in fact adopted a cautious approach by not recommending extradition due to breathlessness or undiagnosed cardiorespiratory symptoms.

There was an email from Dr Bedawi, dated 23 May 2024, raising concerns regarding the Appellant’s breathing, from which it is plain that the relationship between his sleep apnoea, the risk of other complications and the need for a CPAP machine were fully rehearsed before the Judge:

“This gentleman had a sleep study indicative of severe obstructive sleep apnoea, by virtue of the fact that his oxygen saturation levels drop were shown to drop to dangerously low levels at night in his sleep. His CPAP machine is therefore vital to keep his airway patent at night to prevent this. Patients with uncontrolled or poorly controlled sleep apnoea are at risk of significant adverse events in the form of increased risk of cardiovascular events (heart attacks) and raised blood pressure contributing to an increased risk of stroke as well as diabetes. Therefore, the risks from interrupting his treatment would be significant.”

Dr Ivany is an attorney-at-law practicing in Hungary. His report was summarised and referred to throughout the judgment. The Judge relied on Dr Ivany’s confirmation that the Hungarian prison estate could provide self-care aids such as incontinence pads, medication, CPAP machines, and that wheelchair users could be accommodated. Nevertheless, the report also fairly detailed difficulties prisoners had with obtaining incontinence pads (such as receiving only two per day) and provided examples of detainees with severe apnoea facing delays and rejection when trying to obtain CPAP machines.

The Judge made extensive and detailed findings regarding the Appellant’s specific health issues based on the evidence available at the time of the hearing. She found asthma to be a common condition that is readily treatable within a prison environment, noting that the Appellant’s asthma was not complex and that inhalers should be readily available. She also found there was no evidence that the Appellant could not self-administer his treatment.

The Judge found the Appellant was undergoing a trial of the CPAP machine. She concluded it was unclear whether the CPAP machine was solely for obstructive sleep apnoea or also for his asthma. The Judge noted that, on the evidence before her, CPAP machines are available within the Hungarian prison estate, although there might be a delay in obtaining one. She was unclear whether the Appellant had been officially diagnosed with Obstructive Sleep Apnoea (“OSA”) and found no evidence that the CPAP machine was required for daytime use or would prevent travel.

The Judge accepted that the Appellant suffered from health conditions including back pain/disc prolapse, asthma, high blood pressure, and depression, but found that these were common, not complex, and could be treated with medication and inhalers in Hungarian prisons. The Judge found that it was unclear whether the Appellant was officially diagnosed with urinary incontinence or the extent of this. She accepted it was self-reported, occasional, and treated with pads, which could be catered for in the Hungarian prison system.

The Appellant’s submissions before me drew heavily on the recent report from Dr Iyer which the Appellant seeks to rely on as fresh evidence. The report provided updated diagnoses and specified care requirements, which the Appellant argued undermined the Judge’s earlier findings.

Dr Iyer confirmed that the Appellant has been diagnosed with very severe OSA. This is the most common sleep-related breathing disorder. The diagnosis necessitated, he said, the long-term, nightly use of a CPAP machine. His report noted that the Appellant had mild left ventricular systolic dysfunction with previous episodes of decompensated heart failure, which was medically managed. Dr Iyer linked the Appellant’s breathlessness not definitively to asthma (as previously suggested), but possibly to “cardiac wheeze” due to his heart failure.

Dr Iyer explained that untreated OSA can worsen heart failure and increase the risk of sudden cardiac death, heart attack, and stroke, especially in obese patients (the Appellant being severely obese with a BMI over 40kg/m2). This was in similar terms to the views expressed by Dr Bedawi.

In the light of this additional medical material the Appellant submitted that the DJ’s findings “underplay the true conditions” and are “no longer an accurate picture” of his current diagnosis, treatment, and prognosis.

One of the most striking features of Dr Iyer’s report is the information it contains as to the use of the CPAP machine by the Appellant:

“NR’s three month compliance report (see appendix 1) between 02/07/2025 and 29/09/2025 demonstrates very poor compliance with average usage (for all days) of 24 minutes and average usage (on days used) of 55 minutes. The therapy data shows that when he does use the machine, his sleep apnoea is well controlled with an AHI of <5. Mask leak continued to be significant and his median pressure was 4.9cm of water”

As the Respondent submitted the Appellant has now had the CPAP machine since just before the extradition hearing. His average use was 17 minutes per day, but the machine was only used on 24% of days. Although the Appellant had been admitted to hospital on seven occasions because of worsening breathlessness, chest pain or uncontrolled hypertension, none of these admissions culminated in an episode of decompensated respiratory failure requiring non-invasive ventilation, and there was no evidence of acute coronary syndrome (heart attack). It is evident that he chooses not to use the machine or to follow medical advice as to the extent he should do so. There is nothing to suggest that his extradition to Hungary would interrupt a settled regime of treatment or, on the evidence, one which could not be provided within the Hungarian prison estate. Any submission that delay in providing him with a CPAP machine carries with it some potentially fatal consequence must be considered in the light of the limited use which the Appellant makes of the device at present.

The primary cause of the Appellant’s respiratory problems is his obesity which is simply not being addressed at present. Dr Iyer’s view, which mirrored other medical opinion that had been before the Judge, was:

“In NR’s case, obesity is likely to be the primary driving factor for his having developed OSA. There may well be a genetic component with regard to his upper airway anatomy but given his BMI is well above 40 and large neck, the majority component of his OSA is likely to be due to his obesity.”

The Appellant’s BMI has not changed (or at least Dr Iyer could not say that it had) and there is little if anything in Dr Iyer’s report to suggest that there has been a marked worsening of the Appellant’s condition since the extradition hearing.

As far as the possible unavailability in prison of the Appellant’s morphine-based pain medication is concerned, Dr Iyer’s opinion was:

“I cannot comment on the impact of withdrawing morphine and gabapentin, but both of these medications will contribute to making OSA worse by reducing the respiratory drive for breathing. Therefore, if anything, withdrawing these medications is likely to improve his OSA although it may not help with his anxiety which is another stumbling block to NR complying with CPAP therapy regularly.”

The points taken in the Grounds are to a significant extent disagreement with the conclusions reached by the Judge as part of the assessment of the evidence. As the court observed in Love v USA [2018] EWHC 172 (Admin):

“Extradition appeals are not re-hearings of evidence or mere repeats of submissions as to how factors should be weighed; courts normally have to respect the findings of fact made by the district judge, especially if he has heard oral evidence.”

The Judge’s summary, after a detailed assessment of the evidence, was as follows:

“59.

In summary, I recognise that if extradited, the RP will not easily transition to life within the JA’s prison estate. There will be a period of hardship as he adjusts to only having his needs rather than wants met by the prison estate and living without the support offered by his wife. Notwithstanding the RP’s discomfort during the transition phase, I find the RP’s medical conditions can be managed within the Hungarian prison estate. For the reasons given above, I find the depression, high blood pressure, asthma and back pain are not complex medical conditions nor is there any complexity in the treatment of these conditions, most of which are managed by medication, inhalers and/or physical therapy (which the RP does not engage with at present). The RP’s obesity is not addressed in the UK at all.

60.

I find a level of complexity is added by the RP’s possible diagnosis of OSA for which a CPAP machine has recently been provided, but the evidence of Dr Ivany is that such machines can also be provided within the JA prison estate, albeit with a delay. Dr Bedawi’s email stated there would be a grave risk to the RP if the CPAP machine was not made available, but on the RP’s evidence, he had been waiting in the UK for over a year for the machine, and at the time of the hearing, only had the machine for one day. I find the risk is manageable in view of this history if the RP is diagnosed with OSA.

61.

The RP’s breathlessness/cardiorespiratory symptoms did not present a heightened level of complexity in my view. The cause of his symptoms is not known in the UK and is under investigation. I find there is no reason why those investigations cannot continue in Hungary through the prison estate or the civilian hospitals if greater specialised care is required. I rely on the presumption that the RP will receive adequate healthcare in respect of the concerns around his dignity in personal care. The evidence of Dr Ivany did not, in my view, rebut the presumption as the examples given were a handful of incidents across the whole prison estate rather than an indication of systematic failure within the healthcare system. I was not provided with any CPT reports or other evidence of context. I had no indication of how many prisoners had access to CPAP machines across the prison estate, or how many prisoners had multiple health conditions, such as the RP, to gauge whether the examples provided by Dr Ivany were isolated or not.

62.

I accept there will be some initial hardship to the RP. However, I find the RP has not established, on the balance of probabilities, it will be unjust or oppressive to extradite him by virtue of his physical or mental health conditions, either taken individually or collectively for the reasons given above.”

Against this background I consider that:

I therefore refuse permission on this ground.

The admission of the fresh evidence is not automatic but is a matter for the discretion of the Court. The material must comply with 50.20(6)(b) of the Criminal Procedure Rules and the principles in Zabolotnyi v Hungary [2021] UKSC 14 and Hungary v Fenyvesi [2009] EWHC 231. The Court must be satisfied that the evidence would have resulted in the Judge deciding the relevant question differently, so that she would have ordered the Appellant’s discharge. In other words, the fresh evidence must be decisive. Dr Iyer’s report does not clear that strict threshold in my view. I therefore decline the application to admit it as fresh evidence notwithstanding that I have fully considered its potential impact on the issues before the Judge.