QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE MOSES
|THE QUEEN ON THE APPLICATION OF ANDREW RUTHERFORD WARREN||(CLAIMANT)|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
|THE CROWN PROSECUTION SERVICE|
|(ACTING FOR THE UNITED STATES OF AMERICA)||(INTERESTED PARTY)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
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(Official Shorthand Writers to the Court)
MR JAMES EADIE (instructed by The Treasury Solicitor) appeared on behalf of the DEFENDANT
MS HELEN MALCOLM appeared on behalf of the INTERESTED PARTY
Crown Copyright ©
"I can well understand that it produced depressive symptoms, which are clearly not persistent."
"Judging by the emotional outburst that I have seen I think that any attempt to enforce this [his return to America] will result in dramatic symptoms and I think there is a strong possibility that he could even do as he is threatening, to end his life as he would see that there was no future."
"... has a vulnerable personality and when subjected to stresses with which he feels he cannot cope, he acts in a dramatic way which is depressive and could be self-destructive."
"In my opinion extradition would result in a deterioration of Mr Warren's mental state. I would consider that he would pose a high suicidal risk. On the balance of probabilities I would anticipate that he would require constant observation and probable hospitalisation if extradition were to proceed."
Dr Crook provided a further report dated 25th March 2002 which demonstrated that his opinion was unchanged since his earlier report of 4th May 2001.
"I do not doubt that Mr Warren is suffering from adjustment disorder with mixed anxiety and depressed mood. He has his good days and bad days, as do virtually all patients who suffer from such a disorder. He has not required psychiatric hospitalization and has been managed with relatively limited outpatient treatment ... However, I do believe that Mr Warren is likely to be exaggerating his symptoms at times in order to further his goal of convincing the Home Office to grant him what is in effect clemency."
"It can reasonably be expected that he will be able to maintain competence to proceed."
"I do not believe that Mr Warren is incompetent to proceed at this time. I believe that his genuine mental and emotional symptoms can be treated adequately with a combination of intensive psychotherapy, psychopharmacotherapy and various supportive services, and that it can reasonably be expected that he will be able to maintain competence to proceed."
"The amount of contact he is likely to have through telephone and letters as described by Mr Bodek is unlikely to emotionally sustain him in a foreign country."
He remained of the view that the claimant was under disability in relation to his trial, and said:
"I have, as yet not seen any medical evidence which forms the view that Andrew Warren is fit to plead and stand trial.
"[Mr Bodek has acknowledged that he has not conducted an examination of Mr Warren and has not been given an opportunity to speak to the reporting psychiatrist in England]."
"The Secretary of State has considered the representations with particular care given the issues concerning Mr Warren's mental health. He has concluded that there is no statutory prohibition against extradition. He has considered whether it would be wrong, unjust or oppressive to return Mr Warren to the United States. He has concluded that it would not be wrong, unjust or oppressive to do so. Accordingly, on 1 November 2002, a Minister signed an order for Mr Warren's return to the United States. I enclose a copy of the order for return for your information.
"The Secretary of State is not under an obligation to provide reasons for his decision to issue an order for return. However, exceptionally, in this case and in the light of the matters raised in the representations on behalf of Mr Warren and in the responses to those representations on behalf of the United States Government, he has agreed to give a summary of his reasons at this stage.
"The Secretary of State notes at the outset that Mr Warren stands accused of serious crimes. That is a relevant and powerful factor in favour of return, providing it would not be wrong, unjust or oppressive to do so.
"Mr Warren's mental health
"The Secretary of State has considered all the reports from the various psychiatrists who have examined Mr Warren. He notes their conclusions. In brief summary, their main conclusions appear to be that Mr Warren is suffering from reactive depression linked to the ongoing extradition proceedings, that there are serious issues as to whether he would be fit to be tried before an English court at the present time (and in the psychiatrists' view he probably would not be), that there are real concerns as to possible deterioration in his condition were he to be returned and that the prognosis is uncertain. Those are powerful factors against return (and have been acknowledged as such in the case law), and the Secretary of State has so treated them.
"However, a number of serious issues have been raised in the various reports prepared by the expert appointed by the Supreme Court of New York, Hillel Bodek. Hillel Bodek, as the order of appointment records, has often been appointed in the past by the New York court to evaluate, treat and otherwise help address issues and concerns relating to mentally ill defendants. He was specifically appointed by that court to assist that court to inquire into the mental health and other psychological needs of Mr Warren, to establish a comprehensive treatment/service plan that will assure continuity of any needed mental health evaluation and treatment and needed social services if extradited (and to consult current healthcare professionals to that end), and to set up a mechanism for Mr Warren to maintain regular contact with his family in the United Kingdom after extradition.
"Hillel Bodek is not a qualified psychiatrist. However, the Secretary of State has no reason to doubt his expertise to perform the functions specifically referred to by the appointing court in New York. He also acknowledges that Hillel Bodek has not had the opportunity to examine Mr Warren, although he has seen a number of reports of such examinations. However, he sees no reason, on that or any other basis, to discount his views.
"Having regard to the various reports prepared by Hillel Bodek, and acknowledging the weight of the reports from the examining psychiatrists, the Secretary of State has concluded that there are a number of genuine issues raised concerning the mental health of Mr Warren as to its extent, prognosis and treatment.
"The Secretary of State next considered the process and safeguards available in New York.
"The Secretary of State has no reason to doubt that the New York courts would determine competency/fitness issues in a fair way tailored to the particular case, basing themselves on expert psychiatric evidence where appropriate (including evidence from a defence appointed expert funded by the State if necessary). He has concluded in the circumstances of this case that it would be appropriate for a final competency judgment to be made, not by him, but by a New York court.
"As the Secretary of State understands the legal position in New York, only if a defendant is, or is found to be, competent would the case proceed to trial. If a defendant is found by the court, after consideration of all the evidence, to be incompetent, the New York law provides for the criminal case to be stayed, pending appropriate treatment of the defendant. The case can be dismissed if, ultimately, a defendant cannot assist in preparing his own defence because treatment is unavailing or there is no treatment likely to render him fit. If a defendant in such circumstances is a citizen of another country, he will be removed to that country upon dismissal of the indictment, or earlier if a decision to remove him is taken.
"As you know, the Secretary of State specifically enquired about the timing of this process. You have seen Hillel Bodek's 5 September 2002 report in this regard. If Mr Warren is found to be incompetent following the process there outlined, and remains in that condition, he would most probably be returned to the United Kingdom within a few months of his extradition. Hillel Bodek describes it as no more than the most minuscule possibility that his commitment would extend beyond a year. Moreover, the District Attorney has stated in terms (see his memorandum dated 6 September 2002) that if Mr Warren 'is not found fit initially and not successfully restored to fitness in a matter of months, then the District Attorney will not make additional efforts to prolong the matter, but will accede to that determination and that he may be returned to the United Kingdom'.
"As you also know, the United States' authorities have given an assurance that, in the event of this extradition to New York, Mr Warren would be assessed immediately upon his arrival. If necessary, he will be given care and treatment appropriate to his circumstances, in consultation with his current United Kingdom healthcare providers. The Secretary of State understands that any required healthcare and psychiatric support in New York would be provided free. The Secretary of State also understands that housing would be available if Mr Warren were to be released on bail and unable to pay for his own housing; and that regular family contact would be possible by means of correspondence and telephone calls.
"In all the circumstances, the Secretary of State has concluded that it would not be wrong, unjust or oppressive to extradite Mr Warren".
"Upon the expiration of the said fifteen days, or, if a writ of habeas corpus is issued, after the decision of the court upon the return to the writ, as the case may be, or after such further period as may be allowed in either case by the Secretary of State, the Secretary of State may by warrant order the fugitive criminal (if not delivered on the decision of the court) to be surrendered to such person as may in his opinion be duly authorised to receive the fugitive criminal by the foreign state from which the requisition for the surrender proceeded, and such fugitive criminal shall be surrendered accordingly."
"From section 4 [of the 1991 Act] it is clear that the issue of a defendant's fitness to plead may be raised by the defence, or the prosecution, or even the court itself."
"Having regard to the various reports prepared by Hillel Bodek, and acknowledging the weight of the reports from the examining psychiatrists, the Secretary of State has concluded that there are a number of genuine issues raised concerning the mental health of Mr Warren as to its extent, prognosis and treatment."
"I do believe that Mr Warren is likely to be exaggerating his symptoms at times in order to further his goal of convincing the Home Office to grant him what is in effect clemency."
He repeated that view in his report dated 17th July 2002, and went so far in that report as saying:
"I do not believe that Mr Warren is incompetent to proceed at this time."
"It is all too easy for an Applicant, in circumstances such as this, to manipulate the situation to an extent whereby it is difficult to return him to face his trial. It is for that reason the medical condition of an Applicant, such as this Applicant, must be scrutinised carefully."