B e f o r e :
LORD JUSTICE LAWS MR JUSTICE WILKIE ____________________
____________________
James Lewis QC & Ben Watson (instructed by Corker Binning) for the Appellant Mark Summers (instructed by Crown Prosecution Service) for the Respondent Hearing date: 20 June 2013 ____________________
HTML VERSION OF JUDGMENT ____________________
Crown Copyright ©
Mr Justice Wilkie:
Introduction
This is an appeal by John Edwards against the decision of District Judge Evans on 21 st 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 22 nd May 2012 and on 31 st 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 25 th March 2009 the Grand Jury of Nevada returned an indictment against the Appellant and certain others. This indictment was superseded on 27 th May 2009 by a further indictment returned by the Grand Jury which charged him on 5 counts of conspiracy to commit securities fraud or money laundering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 7 th 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 23 rd July 2009.
On 7 th August 2009 a warrant for arrest was issued by the City of Westminster Magistrates Court (Section 71) and on the 7 th September 2009 the Appellant was arrested.
The extradition hearing was formally opened on 22 nd September 2009 but thereafter was adjourned pending defence medical enquiries. The resumed hearing was listed for the 10 th December 2010.
In the meantime, on the 24 th 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 10 th 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 21 st December 2010. On 20 th 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 21 st 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 23 rd March 2011 and a renewed application for permission was refused on 29 th 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 11 th May 2012 raising the same ground.
On 6 th 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, 26 th and 27 th February 2013. There is also before the court, from the Appellant, a series of medical reports obtained at an earlier stage between 10 th September 2010 and 2 nd October 2012.
The report of Dr Campbell is based on an assessment dated the 19 th 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:
The Respondent has furnished a medical report from Dr Andrew Johns, a consultant forensic psychiatrist. That report is dated 16 th May 2013 and is based on an assessment on the 9 th 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 3 rd December 2012. His conclusions are summarised as follows.
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:
Section 91 provides:
Section 103 provides:
Section 104 provides:
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:
In the same case Lady Justice Hale (as she then was) expressed herself in the following terms:
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:
He went on to say in paragraph 28:
The learned Judge then referred to the case of Warren and cited paragraph 42 of the judgment of Lady Justice Hale. He concluded:
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:
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:
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 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:
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 16 th 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:
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.