Mr Justice Wilkie:
Introduction
- This is an appeal by John Edwards against the decision of District Judge Evans on 21st December 2010 to send the case to the Secretary of State for the Home Department (SSHD) for her to decide whether the Appellant should be extradited to the United States of America (Nevada).
- The SSHD made such an order on 22nd May 2012 and on 31st May 2012 the appeal was lodged pursuant to Section 103 of the Extradition Act 2003.
- The sole issue which remains in the case is whether the Appellant's mental and/or physical condition, the subject of medical reports, is such that it would be unjust or oppressive to extradite him (Section 91 of the 2003 Act) or is such that it would not be compatible with his Convention Rights within the meaning of the Human Rights Act 1998 for him to be extradited. Articles 3 and 8 are said to be in point. (See Section 87 of the 2003 Act)
Factual and procedural background
- On 25th March 2009 the Grand Jury of Nevada returned an indictment against the Appellant and certain others. This indictment was superseded on 27th May 2009 by a further indictment returned by the Grand Jury which charged him on 5 counts of conspiracy to commit securities fraud or money laundering offences and 2 substantive counts of securities fraud.
- On 7th July 2009 a request for extradition was made and was certified by the Secretary of State pursuant to Section 70 of the 2003 Act on 23rd July 2009.
- On 7th August 2009 a warrant for arrest was issued by the City of Westminster Magistrates Court (Section 71) and on the 7th September 2009 the Appellant was arrested.
- The extradition hearing was formally opened on 22nd September 2009 but thereafter was adjourned pending defence medical enquiries. The resumed hearing was listed for the 10th December 2010.
- In the meantime, on the 24th March 2010, a second superseding indictment was preferred by the Nevada Grand Jury. It alleged 14 counts against the Appellant concerning a wider range of fraudulent activity involving more corporate vehicles. At the hearing on the 10th December 2010 an argument was raised that the court could only consider the request as originally certified by the Secretary of State, that is, based only on the first superseding indictment and not the second. The learned Judge reserved his decision until 21st December 2010. On 20th December this issue was effectively sidestepped. The Secretary of State issued a fresh Section 70 certificate in respect of the second superseding indictment. The previous extradition proceedings were abandoned and new extradition proceedings were commenced; the timetabling effectively being so foreshortened that the substantive hearing took place on 21st December 2010.
- At that hearing an argument was raised pursuant to Section 87, asserting a breach of Article 3 based on sentencing practice in the United States. Although the possibility of an argument based on the Appellant's medical condition, relying on Section 91, was adverted to orally before the District Judge and in written material, the Appellant's advisors at that time concluded that the medical evidence did not support their advancing such an argument and the District Judge was not invited to make any decision in respect of Section 91.
- In a separate development the Appellant sought to judicially review the Secretary of State's second Section 70 certificate, but permission to seek Judicial Review was refused on the papers by Keith J on 23rd March 2011 and a renewed application for permission was refused on 29th February 2012 by the Divisional Court comprising the President and Silber J (2012 EWHC 1060 (Admin)).
- One of the grounds of appeal originally advanced was to attack the validity of the Section 70 certificate and, hence, the lawfulness of the District Judge's decision pursuant to Section 78(2)(a) that the documents sent to him by the Secretary of State included a valid certificate under Section 70. In a yet further separate development, the Appellant commenced Habeas Corpus proceedings on 11th May 2012 raising the same ground.
- On 6th December 2012 a constitution of the Divisional Court comprising Mr Justice Collins and Mrs Justice Sharp was scheduled to hear both the Habeas Corpus application and the appeal against the District Judge's decision to refer the case to the Secretary of State. On that occasion the court dismissed the application for Habeas Corpus and dismissed the appeal, insofar as it was based on the Section 70/78 ground already referred to.
- On that occasion the court had before it a witness statement from Anna Rothwell, an assistant solicitor in the Appellant's solicitors, exhibited to which were a number of documents which included correspondence and prison medical records. The gist of the evidence and the material exhibited was that the Appellant's mental and physical condition had deteriorated significantly over the previous months and that he was unfit to provide sensible instructions and/or to enter a plea, or meaningfully participate in criminal proceedings. One of the developments in his medical condition which was particularly focussed on was a series of falls or collapses he had suffered, which appeared to have medical causes but which thus far was unexplained. There were, however, no medical reports placed before the court on that occasion.
- The court adjourned the hearing of the appeal insofar as it was based on his mental or medical condition in order that medical reports might be obtained. It did so in terms set out at paragraphs 4-6 of the judgment of Mr Justice Collins where it appears that he was particularly concerned about the blackouts or fits which the Appellant had been suffering.
The medical reports
- There is now presented to the court a number of medical reports. The Appellant relies on two reports of Dr Campbell, a Consultant Forensic Neuro Psychiatrist, dated, respectively, 26th and 27th February 2013. There is also before the court, from the Appellant, a series of medical reports obtained at an earlier stage between 10th September 2010 and 2nd October 2012.
- The report of Dr Campbell is based on an assessment dated the 19th February 2013 involving an interview over a period of 3 hours as well as consideration of the reports and medical records referred to in his report and has resulted in him expressing the following opinions:
"I am of the opinion that he has exhibited a substantial decline in his cognitive functioning, particularly over the last five months. Of the available possibilities, the most likely cause for this cognitive decline would be a progressive dementia. The white matter changes on neuroimaging, and the seemingly quite rapid cognitive decline over the last few months, would be most consistent with a dementing illness of vascular origin. This would be consistent with his history of maturity-onset diabetes and hypertension. I therefore consider that, on a balance of probabilities, Mr Edwards is now exhibiting a Vascular Dementia
In addition to a dementing illness, Mr Edwards may be suffering from generalised epilepsy although I cannot be sure about this.
As a consequence of his cognitive impairment by reason of a dementing illness, I consider that Mr Edwards would now be unable to participate effectively in any trial process. In particular, he would lack sufficient powers of sustained concentration and sufficient cognitive capacity to recall relevant information from memory
I do not think that these impairments could be improved through any form of external support.
Mr Edwards is currently being managed in a prison environment even though he is in cognitive decline
and remains prone to episodic loss of consciousness
It seems most unlikely that he could now live independently, as he would require considerable prompting or support to manage everyday tasks. I consider that his care needs are such that transfer to a Care Home would now be the most appropriate course of action
Given Mr Edwards' current presentation I consider that his impaired powers of sustained concentration and difficulties with recall from memory (particularly more recent memory) would effectively preclude him from participating effectively in any trial process."
- The Respondent has furnished a medical report from Dr Andrew Johns, a consultant forensic psychiatrist. That report is dated 16th May 2013 and is based on an assessment on the 9th May 2013 which involved an interview of some 2 hours. In addition, he had sight of the other medical reports prior to and including the reports of Dr Campbell, and the inmate medical record until the 3rd December 2012. His conclusions are summarised as follows.
"59. On mental state examination, he was muddled about some dates in his business chronology, but recalled other details apparently well. He shows no signs of current mental illness and is not depressed. I found that on brief testing that he showed no signs of cognitive impairment and in particular, he scored 30 out of 30 in the mini mental state examination. I found no evidence that he was malingering.
60. In my opinion, Mr Edwards does not show signs of a dementing illness. If this had first occurred say in 2005, I expect by now he would have shown a chronic irreversible deterioration and this is not the case.
61. I note the recent diagnosis of epilepsy by an experienced consultant neurologist. It is well recognised that following an epileptic episode, an individual can show what is called postictal confusion which usually lasts a few hours but can be a day or so. I believe that Mr Edwards is experiencing episodes of epilepsy leading to postictal confusion, which then resolves. I think it highly probable that these episodes of postical confusion, account for his apparent patchy impairments in memory. I think it entirely possible that he also experiences very minor episodes of epilepsy without falls, which could nevertheless lead to postictal confusion.
62. However, I have asked for the more recent prison records, which may demonstrate episodic impairment of memory after epileptic episodes. I also note that the results of a further MRI brain scan and EEG are not available to me.
63. I recommend review that his Consultant neurologist should be asked to review the above investigations and the dose of anti-convulsant medication.
64. With respect, I do not agree with the diagnosis of dementia made by Dr Campbell, nor do I agree that Mr Edwards' medical problems cannot be safely managed in prison.
Medico legal issues
65. He clearly meets the Pritchard Criteria. He is fit to discuss matters with his legal advisors and to attend court and to participate in a legal process. This is with the caveat that should he experience an episode of an epileptic attack then this may be followed by confusion, which may produce apparent occasional defects in memory."
The respective submissions on the state of the evidence
The Appellant's submissions
- The Appellant accepts that there is a conflict between the opinions of Dr Campbell and Dr Johns on the issue whether the Appellant is fit to plead or participate in criminal proceedings. Whilst they both note that he is currently being managed in prison, Dr Campbell is of the view that transfer to a care home would now be the most appropriate course of action, whereas Dr Johns' view is that the Appellant can be safely managed in prison.
- The Appellant contends that there are problems with the evidence of Dr Johns which call into question the extent to which his opinion can be relied upon. His Counsel has set out, in his skeleton argument a series of seven "obvious question marks" surrounding Dr Johns' assessment which, it is submitted, can only properly be investigated and resolved by oral evidence and cross examination. The Appellant's submission to us is that we should remit the matter to the Magistrates' Court with a direction that the District Judge should "decide again" a question which he decided at the extradition hearing pursuant to Section 104(1)(b) of the 2003 Act.
The Respondent's submissions
- The Respondent also accepts that there is a conflict but contends that the differences of opinion are genuine and legitimate. The Respondent contends that it is a matter of settled authority that, save for exceptional cases where it may be demonstrable that a difference of view is not genuine or legitimate, the appropriate course for this court is to confirm the extradition so that the disputed issue of fitness to plead to, or participate in, proceedings, may be determined by the courts in the requesting State. It follows that there is no proper basis for the courts within this jurisdiction to embark upon an examination of the merits of the medical conflict, whether by adjudicating on the basis of the reports themselves or hearing oral evidence and cross-examination.
- In any event, the Respondent contends that this court does not have the power, in the present case, to remit the matter to the District Judge under Section 104(1)(b) because, in this case, the District Judge did not "decide" the question whether the Appellant's mental or medical condition was such that it would be unjust or oppressive to extradite him in breach of Section 91 of the 2003 Act. In that case, and if the Respondent's primary contention is not accepted by this court, the Respondent accepts that this court would have to embark upon an examination of the contending medical opinions and, to that end, would have to adjourn the hearing of this appeal.
The Appellant's response to the Respondent's contentions on authority
- The Appellant accepts that there is clear authority, under the 1989 legislation, which supports the Respondent's contention that, where there is a legitimate conflict on such an issue, a decision by the Secretary of State: that it was not unjust or oppressive to extradite a person so as to enable the requesting State to resolve that conflict; was not, by and large, judicially reviewable by this court. He also acknowledges that, on the face of it, there are some authorities under the 2003 Act which appear to adopt the reasoning of the pre-2003 Act authorities. The Appellant contends, however, that, insofar as those cases appear to accept that position as a matter of law, they are wrong. The Appellant contends that the question in each case is whether it would be unjust or oppressive to extradite a person by reason of his physical or mental condition and that, in the present case, that cannot be adequately resolved without detailed examination of the medical reports and opinions, to be undertaken, he submits, by the District Judge or, alternatively, by this court.
The legislation and authorities
The Extradition Act 2003
- Section 87 provides:
"(1) If the judge is required to proceed under this section (by virtue of section 84, 85 or 86) he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.
(2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge.
(3) If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited
"
Section 91 provides:
"(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 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
"
Section 103 provides:
"(1) If the judge sends a case to the Secretary of State under this Part for his decision whether a person is to be extradited, the person may appeal to the High Court against the relevant decision.
(4) An appeal under this section may be brought on a question of law or fact
"
Section 104 provides:
"(1) On an appeal under section 103 the High Court may
(a) allow the appeal
(b) direct the judge to decide again a question (or questions) which he decided at the extradition hearing
(c) dismiss the appeal.
(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied
(4) The conditions are that
(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing
(b) the issue or evidence would have resulted in the judge deciding a question before him at the extradition hearing differently
(c) If he had decided the question in that way, he would have been required to order the person's discharge
"
- It is common ground that, under the Extradition Act 1989, the decision whether the physical or mental condition of the person was such that it would be unjust or oppressive to extradite him so that he should not be extradited was a matter for the decision of the Secretary of State. Accordingly, judicial supervision of such a decision was by Judicial Review and was, accordingly, circumscribed by the well established limitations where the primary power to make a decision was vested in the Secretary of State.
- The 2003 Act, however, places the decision on this issue with the court: in relation to Part 1 extraditions by Section 25 and in relation to Part 2 extraditions by Section 91. These two provisions are in identical terms.
- The pre-2003 Act position was clear and well established. In R on the application of Warren v SSHD & Crown Prosecution Service (acting for the United States of America) [2003] EWHC 1171 (Admin), of five medical opinions four were in agreement that the Claimant was not fit to stand trial. The only dissentient was a psychiatric social worker who expressed the opinion that the Claimant was malingering. The Secretary of State had ordered extradition on the basis that it would not be unjust or oppressive for the issue of fitness to be tried to be determined by the courts of New York.
- Mr Justice Moses (as he then was) in dismissing the application for judicial review expressed himself as follows:
"37. In those circumstances, without disagreeing with the views of the doctors in this country as to the Claimant's current condition, the Secretary of State, in my view, was entitled to conclude that there were genuine issues to be tried. This case is far removed, in my view, from the circumstances in the case of Re Davies. In that case there was no issue as to the Applicant's mental condition. There was no evidence suggesting that there was any possibility of recovery, and no evidence, in contrast to this case, as to how long it would take before he was tried in Canada.
38. In the light of the conclusion that there were genuine issues as to the Claimant's fitness to be tried, the Secretary of State then had to consider whether it was proportionate to order his return, particularly in the context of Article 8
39. In my judgment, once the Secretary of State had concluded, as he was entitled to do, that there were genuine issues as to the Claimant's fitness to stand trial, and as to his future treatment, he was entitled to conclude that those issues should be determined by the court in New York in the course of a fair process, and having been afforded fair and careful medical treatment within a limited period of time. In those circumstances the Secretary of State was entitled to conclude that the risk of deterioration did not outweigh the need for an accused to stand trial in respect of serious accusations. He was entitled, for those reasons, to conclude that it was not wrong, unjust or oppressive to order the Claimant to be returned for trial in New York
"
- In the same case Lady Justice Hale (as she then was) expressed herself in the following terms:
"40.
I wish only to emphasise my main reasons for doing so. The object of extradition is to return a person who is properly accused or has been convicted of an extradition crime in a foreign country to face trial or to serve his sentence there. This includes the determination of whether he is fit to be tried, an issue which, under criminal justice systems of both this country and New York, is decided by the court, and not by members of the executive or the medical profession. The extradition process is only available for return to friendly foreign states with whom this country has entered into either a multi or a bilateral treaty obligation involving mutually agreed and reciprocal commitments. Mr Perry, on behalf of the Claimant, accepts that there is a strong public interest in respecting such treaty obligations. Such international cooperation is all the more important in modern times, when cross border problems are becoming ever more common, and the need to provide international solutions for them is ever clearer.
42. It will not generally be unjust to send someone back to face a fair process of determining whether of not he is fit to face trial. I accept that it may be wrong or oppressive to do so if the inevitable result will be that he will found unfit. But even in those circumstances, there may be countervailing considerations. For example, if there is the counter part of our process in the other country, where a person may be found to have committed an act which would have otherwise been a serious crime, particularly if it were to be a crime of violence involving risk to the public, and if it would be then appropriate to detain the person for medical treatment, it could be in the public interest to enable that process to take place. That is not this case, but I would not wish to accept that it is inevitably going to be oppressive to return somebody in such circumstances."
- Our attention has been drawn to a number of cases decided under the 2003 Act where this court has adopted the approach in Warren as still being appropriate, notwithstanding the fact that the decision under the 2003 Act on whether it is unjust or oppressive is for the court itself, whereas in Warren the question for the court was whether the Secretary of State's decision that it would not be unjust and oppressive should be quashed in judicial review proceedings.
- In Hewitt & Woodward v First Instance and Magistrates' Court No. 1 of Denia, Spain [2009] EWHC 2158 (Admin), Mr Justice Roderick Evans, in a judgment with which Lord Justice Keene agreed, gave the judgment of the court on an appeal under Part 1 of the Extradition Act 2003 where the District Judge had concluded that it would not be unjust or oppressive to extradite the Appellant pursuant to Section 25. Mr Justice Evans, having recorded that there was a clear conflict in the medical reports whether the Appellant was fit or unfit to stand trial, said at paragraph 26:
"
Normally, in circumstances where there is an issue as to whether the Appellant is fit to stand trial or not, the court will issue an order for extradition and takes the view that the issue of unfitness to stand trial is a matter to be dealt with by the requesting country.
"
- He went on to say in paragraph 28:
"No point is taken in this case that the procedures available in Spain for determining the issue of fitness to plead is any way unfair or disadvantageous to this Appellant. It is well to remember that the condition in Section 25 is not whether the Appellant is suffering from cognitive impairment or from a mental illness or even whether he is unfit to stand trial. It is whether his mental condition is such that it would be unjust or oppressive to extradite him."
- The learned Judge then referred to the case of Warren and cited paragraph 42 of the judgment of Lady Justice Hale. He concluded:
"29. In this case, there is an issue in my judgment as to whether this Appellant is fit to stand trial or not. That is an issue which can be properly and fairly dealt with in the court of the requesting country. The allegation levelled against these Appellants, and for this particular purpose against Mr Hewitt is particularly serious. There is a very strong public interest in that matter being tried and dealt with appropriately in the Court of the requesting country.
30. For these reasons, I would dismiss Mr Hewitt's appeal
"
- In Raymond Lynch v The High Court in Dublin [2010] EWHC 109 (Admin), the court was deciding an appeal of a Part 1 extradition where the Section 25 point had been argued before the District Judge. In that case the psychiatric report filed on behalf of the Appellant was to the effect that the Appellant had impaired cognitive facilities as a result of chronic alcoholism. The author of the report had concluded that the Appellant was unfit to plead. The medical report was not challenged by the judicial authority before the District Judge, but the legal conclusion was in issue. The District Judge concluded that he was not bound by the medical report's conclusion that the Appellant was unfit to plead and decided that that issue was a matter for the Irish judicial authorities because it could not be said that the Appellant was indisputably, or would inevitably be found to be, unfit to stand trial. The Divisional Court dismissed the appeal, including the appeal pursuant to Section 25. Lord Justice Aikens, giving the lead judgment of the Court, said at paragraph 22:
"In relation to issues of unfitness to plead because of the physical or mental condition of the extraditee, that is a matter for the requesting court to determine in the normal course of things. However, if it is clear to the requested court that the extraditee would indisputably or inevitably be unfit to plead or to stand trial, then it would be oppressive to extradite that person
"
- The learned Judge then referred to Warren.
- In The Queen (on the application of Van Der Pahlen) v Leoben Regional Court, Austria [2011] EWHC 999 (Admin) this court was dealing with an application to reopen an extradition hearing pursuant to CPR 52.17. An extradition had been ordered by the City of Westminster Magistrates' Court in 2008. In 2009 the High Court heard an appeal against that order and upheld the order. There had then been a claim for judicial review against a refusal by the Serious Organised Crime Agency to decline a request that they should not act on the extradition, a request said to be based on Article 8. That claim for judicial review had been refused on the basis that the appropriate route was an application under CPR 52.17. Such an application was made, based upon the Appellant's wife's condition, but that failed. Accordingly, the further application being dealt with by the court was based on the deteriorating mental health of the Appellant who was said to suffer from Asperger's Syndrome and bi-polar effective disorder. The opinion of one consultant forensic psychiatrist was that he would be unfit to plead and stand trial. However, another consultant psychiatrist disagreed and suggested that he was able to plead and stand trial and suggested that he was malingering.
- Lord Justice Moses, dealing with the application under CPR 52.17, explained that what was required was for the Appellant to establish that it was necessary to reopen the appeal in order to avoid real injustice and that there was no alternative effective remedy. Lord Justice Moses accepted the medical evidence as in dispute and he said as follows:
"5
If one accepts the law that it is not a matter for this Court but a matter for the requesting State, namely the Court in Austria, to determine the issue of fitness to plead, then again one can see that there is no need to reopen the extradition. But both these questions the one of fact and the one of law are in issue
6. The issue of law arises because, by Section 25 of the Extradition Act, the court is required to order a requested person's discharge if the mental or physical condition of the person is such that it would be unjust or oppressive to extradite him
The court in Lynch 2010 EWHC109 (Admin) took the view that it was a matter for the courts of the requesting State to consider fitness to plead unless the person requested would indisputably or inevitably be unfit to plead
That was based upon an earlier decision of this court in Warren
which itself took that view, although the court in the earlier case was not concerned with Section 25. It is not clear whether the issue was ever debated in Lynch. It seems to me, having regard to the purpose and context of the framework directive, that the decision of this court in L cannot be identified as being plainly wrong. Indeed I take the view that it is correct. There is no suggestion whatever that Austria would be incapable or would not have in place a system for determining whether (one doctor) is right and that this is merely a requested person's attempt, last ditch, to avoid extradition or whether (the other doctor) is correct."
- Lord Justice Moses permitted the case to be reopened but dismissed the application, in so far as it was made under Section 25, on the basis that he was not persuaded that it would be unjust or oppressive to order the extradition by reason of his medical condition where there was plainly a dispute.
- The Divisional Court of Northern Ireland in Chaos v The Kingdom of Spain [2012] NIQB 32 also dealt with an appeal under the 2003 Act. One of the issues was that the extradition should have been refused on the grounds of "unjust or oppressive" pursuant to Section 25. At paragraph 38 of the lead judgment Mr Justice McCloskey said:
"
The second aspect of this ground of appeal is based on the evidence of Dr Grounds, consultant psychiatrist. In
his
judgment, the Recorder reviewed and evaluated this evidence with obvious care. In determining this issue, he referred to relevant authority - Boudhiva and Warren. He noted that the Appellant's mental condition could be canvassed in any application for bail and, further, that his fitness for trial would be a matter to be determined by the relevant Spanish judicial authority
We find no error in the approach, assessment or conclusions of the Recorder as regards this ground of appeal."
- The reference to Boudhiba is to a case which Section 25 was invoked but not in a way that is relevant to this appeal.
- In the case of Dewani v The Government of the Republic of South Africa [2012] EWHC 842(Admin) the Divisional Court considered appeals against the decision of the District Judge ordering extradition. One of the issues was whether an extradition to South Africa would be in breach of Section 91.
- There was before the District Judge a joint medical opinion that there was a real and significant risk of suicide or self harm, though not immediate, that the Appellant was currently unfit to plead and currently unfit to travel to South Africa, but there was no agreement as to the prognosis, one being more optimistic than the other. The District Judge concluded that the Section 91 test was not met because, although there was hardship, it fell short of oppression and there was a strong public interest in honouring extradition treaties. There was subsequent medical evidence which was uncertain as to the extent, if any, of the Appellant's progress. This court, at paragraph 73, expressed the view that the statutory words set out the relevant test and little help was to be gained by reference to the facts of other cases. So too was reference to such matters as the height of the threshold, and so on. Such an approach carried the risk of the court losing sight of the statutory test couched in terms of "unjust or oppressive." That test required regard to be had to all the relevant circumstances, including the fact that extradition is ordinarily likely to cause stress and hardship, but that neither of those is sufficient. By losing sight of the terms of the statute there was a risk of the courts falling into the trap of setting up a new test rather than applying the statutory test.
- The outcome of the appeal was that the matter was adjourned in order to keep the progress of the Appellant under review and certain observations were made at paragraph 85 in the following terms:
"We do not consider that we should determine, as the position currently stands and in the light of our decision in relation to s.91, what conclusion on the issue of fitness for trial might be open to the court in South Africa at an appropriate time, given the limited nature of the respects in which the Appellant is unfit to stand trial and the prospects of the Appellant's recovery"
(The Court then referred to a number of cases including Davies, Warren and Lynch)
"It may be necessary for this to be done at a later stage in these proceedings, if there is disagreement as to the extent of the Appellant's recovery. If that question arises, then it may also be necessary to determine the merit of the argument advanced on behalf of the Appellant that fitness to plead proceedings in South Africa
are not criminal proceedings and will not result in a conviction
"
- The Appellant has also sought to rely on a passage in Aswat v The United Kingdom (European Court of Human Rights Application No 17299/12) decided on 16th April 2013. That application concerned extradition to the United States which, it was said, would amount to a breach of Article 3 of the Convention. The applicant had been admitted to Broadmoor Hospital suffering from paranoid schizophrenia which made it appropriate for him to be detained in a medical hospital for his own health and safety. This diagnosis was supported by two consultant forensic psychiatrists. The District Judge had ordered extradition. He had concluded that none of the statutory bars applied. On appeal to the High Court, on the ground that his extradition would not be compatible with Article 3 because he would be detained in a maximum security facility including solitary confinement, the High Court found that solitary confinement did not, in itself, constitute inhuman or degrading treatment and did not begin to establish a case under Article 3. These decisions had pre-dated the transfer to Broadmoor and the development of his mental illness.
- Before the European Court of Human Rights the United States Department of Justice indicated that the applicant would have a full opportunity to argue that he lacked mental capacity to stand trial there. If he did so, the trial Judge would have to assess his competency before the trial could proceed and he could rely on the reports of the medical professionals and his full medical records including those relating to his transfer to Broadmoor. Any decision on competency would be subject to appeal.
- At paragraph 52 of the Court's judgment the Court said as follows:
"Whether or not the applicant's extradition to the United States would breach Article 3 of the Convention very much depends upon the conditions in which he would be detained and the medical services that would be made available to him there. However, any assessment of those detention conditions is hindered by the fact that it cannot be said with any certainty in which detention facility or facilities the applicant would be housed either before or after trial. This is particularly the case with respect to the pre-trail period, about which very little information has been provided
It is also unclear how long the applicant might expect to remain or remand pending trial. If extradited the applicant's representatives would be entitled to contend that he was not fit to stand trial in the United States on account of his mental order. A District Judge would then have to assess his competency and, if the applicant was found to be competent, he could appeal to the Court of Appeals. There is no information before the court concerning the potential length of a competency assessment or any subsequent appeals procedure, but it is reasonable to assume that the length of pre-trial detention might be prolonged if the applicant were to assert these rights. Finally, the Court notes with concern the complete absence of any information about the consequences for the applicant if the District Judge were to find that he was not fit to stand trial.
57
Therefore, in light of the current medical evidence, the Court finds that there is a real risk that the applicant's extradition to a different country and to a different, and, potentially more hostile, prison environment would result in a significant deterioration in his mental and physical health and that such a deterioration would be capable of reaching the Article 3 threshold
"
Accordingly, the court held that there would be a violation of Article 3 in the event of the applicant's extradition but solely on account of the current severity of his mental condition. It decided to indicate, pursuant to Rule 39 of the Rules of the Court, that it was desirable not to extradite the Applicant until such time as the present judgment of the Court became final or until a further order.
The Appellant's submissions on the law
- First, the Appellant concedes that the authority of Warren constitutes a properly reasoned exegesis of the approach of this court to the 1989 Act regime where its role was limited to one of review of a decision made by the Secretary of State. He argues, however, that it by no means follows that this court should adopt the same approach under the 2003 Act, where the primary decision on whether extradition would be unjust or oppressive is for the courts, that is the District Judge at first instance and this Court on appeal.
- Second, in so far as there are authorities under the 2003 Act which have adopted the reasoning in Warren, he argues that they are, effectively, per incuriam because they did not address the different role of the court under the 1989 and 2003 regimes. Accordingly, he says, they are wrong in principle.
- Third, he also contends that, in so far as those cases appear to apply the Warren decision as if it established a legal principle, or a default position, those courts were in error, in the same way as was identified by this court in Dewani by being distracted from the sole question for determination, whether extradition would be unjust or oppressive. Rather they adopted, without reasoning or consideration of the factual matrix, the Warren approach and were in error in so doing.
- Fourth, the Appellant also relies on the approach of the European Court of Human Rights in Aswat as pointing to the need, when considering whether extradition would be unjust or oppressive, for information from the requesting State about: the nature of the facilities in which the Appellant would be detained; the availability, or otherwise, of bail; the time that trying the issue of fitness to plead or stand trial, including any appeals, would be likely to take; and the consequences in that jurisdiction of a finding that he was incompetent, for example, what other disposals would be available and would they involve his continuing detention, whether definite or indefinite. It is said that in the absence of any information on these issues, it is not possible for this court, as matters presently stand, to consider whether it would be unjust or oppressive to extradite the Appellant. If his procedural argument is right, this is a further reason, he submits, for remitting the case to the District Judge for full evidence and argument, including such information as the Respondent to this appeal might wish to place before that court on those issues.
The Respondent's submissions as a matter of law
- The Respondent contends that the post 2003 Act decisions were neither wrong nor per incuriam. They may not have been fully reasoned, but it is, at least, implicit that the court was fully aware of the different role which the court had under the 2003 Act regime compared with the 1989 Act regime.
- The Respondent contends that there is clear authority under the 2003 Act that where there is a legitimate dispute, as there is here, on the medical condition of the person, the issue of fitness to stand trial is correctly ascribed to the requesting State to determine, determination of that issue being a part of the trial process, where there is a multiparty or bilateral extradition agreement.
- Where there is agreement on the medical condition which, either currently or permanently, indicates a lack of fitness to plead or to stand trial then the decision in Dewani on the issue of "unjust or oppressive" is by no means inconsistent with the decisions of the court where there is a legitimate dispute.
- In the case of Aswat, there was agreement about the current mental condition of the person, which had developed after the conclusion of the extradition hearings within this jurisdiction. It was on the particular, and quite extreme, facts in that case that the nature of his accommodation and its likely duration were relevant factors when considering whether or not there would be a breach of Article 3. It was, in those circumstances, unsurprising that the European Court of Human Rights required information on such issues before being able to conclude that there would be no such breach were Mr Aswat to be extradited.
My conclusions on this issue
- In my judgment the reasoning underpinning the decision in Warren set out in the judgment of Lady Justice Hale at paragraphs 40 and 42 supports the proposition for which Warren has subsequently been cited under the 2003 Act where the decision on "unjust or oppressive" is for the courts rather than for the Secretary of State. In particular, in paragraph 40 in her judgment, Hale LJ set out the reasoning which supports the conclusion that an issue about fitness to plead or stand trial is normally one which is appropriate for the requesting Court to adjudicate upon and that such a conclusion is at one with the strong public interest in our respecting extradition obligations, whether multiparty or bilateral, between the party states.
- In my judgment those principles are equally applicable under the 2003 Act regime. It may be that this was not made explicit in the post 2003 cases in which Warren has been cited, but in my judgment there is a clear implication that the courts were adopting that process of reasoning in applying those principles to the 2003 Act regime.
- Furthermore, the language of the court in Warren was not expressed in absolute terms but left room for consideration of issues of unjustness and oppression in individual cases where an Appellant raises specific, factual based arguments to seek to disapply the default Warren position. No such argument has been raised in this case. Mr Lewis QC accepts that the availability of such an argument is relied on implicitly as always being potentially present, though he is unable to advance any particular argument before us.
- In my judgment, therefore, the strictures on the proper approach to be adopted stated in Dewani do not, in the present case, call for the default Warren position to be disapplied. Nor is Aswat in point. The facts in that case were very different from the present case.
- Accordingly, in my judgment, even if such a course were procedurally open to this court I do not conclude that there is any proper basis for the matter to be remitted to the District Judge, nor is there any basis for this court to undertake a substantive consideration of the nature and extent of the Appellant's mental and physical condition. It is sufficient that I accept that there is a genuine and legitimate dispute between the medical experts on those matters. This dispute principally goes to the question of the Appellant's fitness to plead and or stand trial in the United States. Applying Warren, this issue ought to be determined by the court in the United States as part of the trial process. It would not be unjust or oppressive, nor would it remotely approach a breach of Article 3 of the ECHR for him to be extradited to the Unites States as sought. In my judgment, this appeal fails on that basis.
- Arguments have been canvassed whether, and if so on what basis, this Court has the power to remit the case to the District Judge pursuant to Section 104(1)(b) where the District Judge had not addressed or decided the questions raised by the Appellant in this appeal.
- There may also be an issue whether the statutory provisions setting out the power of this court on an appeal pursuant to Section 104(4)(a) and (b) may be in play: in particular, whether there was any question "before the District Judge" which could have been decided differently if the issue, raised now, had been raised before him. On the evidence before us it may be that such a question was before the judge. The District Judge was aware of concerns about the Appellant's physical and mental condition but was told by the Appellant's representatives that, at that stage, the concerns were not such that it was thought that they potentially raised any impediment to his extradition. The position before us, of course, has been that his condition has, on one view, worsened to the extent that it is said that it does.
- As I have indicated, however, although these two questions of the powers of this court on appeal have been raised in argument, it is not necessary for this court to adjudicate upon them on this occasion.
Conclusion
- For the reasons set out above, therefore, I would dismiss this appeal.
Lord Justice Laws:
- I agree that this appeal should be dismissed for the reasons given by Wilkie J.
