BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales High Court (Administrative Court) Decisions |
||
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Cogan v Provincial Court of Almeria [2015] EWHC 89 (Admin) (22 January 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/89.html Cite as: [2015] EWHC 89 (Admin) |
[New search] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
THE HON MR JUSTICE GOSS
____________________
ALAN COGAN |
Appellant |
|
- and - |
||
THE PROVINCIAL COURT OF ALMERÍA |
Respondent |
____________________
Saoirse Townshend (instructed by CPS) for the Respondent
Hearing date: 16 January 2015
____________________
Crown Copyright ©
LORD JUSTICE BURNETT:
Introduction
i) That the appellant's mental illness has resulted for the most part in his being held on remand during the extradition proceedings in a secure hospital rather than a prison and in need of focussed care;ii) That there is concern about the availability and quality of interpreters to help him communicate with medical staff in Spain given that he speaks little Spanish;
iii) Separation from his wife, who because of her own medical and financial problems would be unable to travel to Spain, would have more than the usual and inevitable adverse impact upon him. That is because he has a history of being more candid with her about his anxieties than with medical staff. As a result she has been able to pass on concerns which would otherwise have been missed.
Applicable Legal Principles
"7. There have been a large number of cases in which the question as to whether the mental condition of a requested person who poses a substantial risk of suicide amounts to his extradition being unjust or oppressive or in breach of Article 3 of the Convention. …
8. In a recent suicide case, Turner v Government of the USA [2012] EWHC 2426 (Admin), Aikens LJ summarised the propositions which could be derived from these cases at paragraph 28:
(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."
9. We agree with counsel that this is a succinct and useful summary of the approach a court should adopt to s.25 and s.91 of the 2003 Act.
(c) The importance of preventative measures
10. The key issue, as is apparent from propositions (3), (5) and (6), will in almost every case be the measures that are in place to prevent any attempt at suicide by a requested person with a mental illness being successful. As Mr Watson correctly submitted on behalf of the respondent judicial authorities, it is helpful to examine the measures in relation to three stages:
i) First, the position whilst the requested person is being held in custody in the United Kingdom is clear. As Jackson LJ observed in Mazurkiewicz at paragraph 45, 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 under the arrangements explained in R v Quazi [2010] EWCA Crim 2759, [2011] Crim LR 159.
ii) 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. As Collins J helpfully mentioned in Griffin at paragraph 52, steps 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.
iii) 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: see the authorities set out at paragraphs 3-7 of Krolick and others v Several Judicial Authorities of Poland [2012] EWHC 2357 and paragraphs 10-11 of Rot. 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."
The Appellant's Evidence
"If the language barrier is not overcome properly and medical support is limited in Spain, it is highly likely that Mr Cogan will deteriorate in his mental state and be at risk of suicide."
"I received no psychiatric help while I was on remand in Spain. There were only a few occasions where an interpreter was available to translate at Court and with my solicitor. I only had a limited understanding of what was happening in my case. I was frequently told that the case would be concluded soon and I just needed to be patient."
In the medical evidence there are many references to his underlying concern about his ability to understand the proceedings in Spain and thus effectively take part in them. He has repeatedly expressed doubts about the quality of the interpreter or interpreters that he had at court. The medical evidence records a reference to his difficulty in communicating with a doctor in the prison in Spain, who apparently did not speak English. Dr Bhatti reports:
"He also believes that he will not be able to ask for help for his mental health problems in Spain because of the language barrier. He has said that in the past when he was in prison, he did feel low in his mood but could not ask for psychiatric help. According to him, the prison doctor was unable to speak to him in English and he had to use dictionary to find Spanish version of the English words and write on a piece of paper when he asked for help for his physical health problems."
We understand the sometime during his remand in custody in Spain the appellant had a back problem for which he received some treatment. Having heard oral evidence on this matter, the judge found that the appellant did not seek any treatment for his low mood. There is no evidence that the appellant sought help in communicating with this single doctor, still less that he was denied it.
The Evidence from Spain
The Decision Below
"30) The most recent Report dated 22/10/14 (para 11) shows that, although there has been no improvement in his condition as a result of ECT, there have been no further attempts at suicide and the risk continues to be managed through medication and close observation.
31) The RP's greatest fears appear to be an inability to communicate in Spain because of language problems and the removal of the support he gets from his family. His wife is able to speak to him every day at the moment and she visits regularly.
32) The JA has provided the court with a great deal of evidence of what support there is in general in Spain for those who suffer from mental illness. I give weight to the contents of the document dated 1/7/14 and the contents of the additional material entitled "Prevention of Suicides" which is taken from a Spanish Ministry of Interior website.
33) In this particular RP's case there now exists a full picture of what his difficulties are and a clear treatment plan has been in place for the past year. The risk has been clearly identified by Dr Bhatti and all of his Reports have been translated into Spanish and will follow the RP to Spain if his extradition is ordered. He will be in a very different position to the one he was in when he was last in prison in Spain because the Spanish authorities will be well aware of his mental condition.
34) There is no evidence to satisfy me to the requisite standard that Spain, as a Part 1 country, does not have the facilities adequately to manage the risk that exists in this RP's case.
35) There is no evidence to show that, where a specific risk has been identified such as is the case here, the requesting state, Spain, will not ensure that the RP is placed in an appropriate custodial environment with access to an appropriate interpreter and appropriate treatment in order to address the risk of suicide.
36) A return to Spain will mean that it will be more difficult for the RP's wife to give him the support that she clearly does but this will no doubt be taken into consideration by the Spanish authorities and adequate steps put in place to ensure that the RP's increased vulnerability is monitored. There is clear evidence that contact with his family is an entitlement.
37) For all of the reasons I have set out I am not persuaded in this case that the high threshold has been reached to allow me to find that an order to extradite would be either unjust or oppressive. The RP's challenge under section 25 of the Act fails."
Subsequent Events
i) Information that would assure the court that the appellant would be provided with appropriate interpretation facilities in order that he could communicate effectively with his doctors and others responsible for his care.
ii) Information that would assure the court either that the appellant would be placed in a psychiatric hospital following his extradition or that a decision in relation to this would be made and that a suitable place in a psychiatric hospital was likely to be available to him.
"In regards to psychiatric treatment in the prison system which is most suited to the evolutionary status of his pathology at the time he arrives in Spain, the criteria of the medical consultants assigned to the corresponding prison must prevail, and a report may be requested concerning the possibilities of this particular case to the director of the prison… in Almería, given that the prison health consultants are the ones who can best describe the resources available in terms of dealing with the issues raised in the attached documentation."
I take that to be the unsurprising statement that the doctors responsible for the appellant's care would have to make the necessary judgements about his treatment on his arrival.
i) The treatment currently received by the appellant is available in Spain;ii) A multi disciplinary suicide prevention protocol is in place which deals with diagnosis, treatment, social rehabilitation and therapeutic activities;
iii) The prison has a 24 hour medical service and a consultant psychiatrist who works with the prison periodically;
iv) Special medical care needs are arranged with an outside hospital. There are arrangement with a local hospital which has a specialist psychiatric unit;
v) That hospital can deal with severe symptoms of mental disorder when necessary but if long term treatment for mental disorders is required, there are two prison psychiatric hospitals in Seville or Alicante;
vi) The prison has the necessary mechanisms so that an inmate who does not speak Spanish can communicate with the various professionals, including healthcare professional, and make requests, complaints and appeals to which he is entitled;
vii) There are arrangements for physical visits from friend and relatives, telephone communication and unlimited written communication.
Discussion
MR JUSTICE GOSS: