England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		2 December 2004

1. MR JUSTICE PITCHFORD: On 9 August 2004 at Bow Street Magistrates' Court, District Judge Pratt, the appropriate judge for the purposes of the Extradition Act 2003, informed the appellant of his decision under section 87(3) of the Act to send his case to the Secretary of State for the Home Department to await a decision whether he was to be extradited to the United States of America.
2. The appellant pursues his statutory right of appeal under section 103 against that decision. This appeal has been listed together with the appellant's application for leave to apply for judicial review of the district judge's decision on 9 August 2004, not to adjourn the extradition hearing. It is contended that the refusal amounted to procedural unfairness, which is either fatal to the decision or which is an event which should cause this court to direct a further decision from the district judge under our powers in section 104 of the Act.
3. The factual background is as follows. On 9 July 1998 the appellant was arrested in Connecticut in the United States for offences of sexual assault. He was then 21. On 4 November of the same year, he pleaded guilty to an offence of sexual assault. He was, on 8 January 1999, sentenced to eight years' imprisonment, the execution of that sentence being suspended after a period of nine months spent in custody, with a further period of ten years' probation to follow after his release.
4. On 7 October 1999 the appellant was released from prison and the period of probation commenced. On 8 October 1999 he signed an agreement under his sentence entitled "intensive sex offender conditions" the direction of his probation officer. The agreement included a condition that he would not be in the presence of minors, nor would he have contact in any form, direct or indirect, personally, by telephone, letter or through anyone else with children under the age of 16 without the prior approval of his probation officer. He is alleged to be in breach of the order by reason of contact with an underage girl identified as "A". It is alleged that A was a girl upon whom he had committed sexual offences before his conviction in November 1998.
5. On 5 November 1999 the New Haven Superior Court signed a warrant for the arrest of the appellant, charging him with violation of his probation. On 8 November he was arrested in respect of that warrant. The following day he was granted bail. On 9 November 1999 the New Haven Superior Court signed a warrant for the appellant's arrest, charging him with sexual offences against A, and he was arrested the same day. On the 11th, he was released on conditional bail.
6. On 31 May 2000 the appellant was due to appear at the New Haven Superior Court in respect of the violation of probation and girl A allegations. He failed to appear. On the same day, Judge Fasano, at that court, received a letter from the appellant in which he expressed his intention "to travel half way around the world to establish a new home and identity as I am not strong enough to go back to jail".
7. On 6 June 2000 Judge Fasano issued two warrants for the arrest of the appellant in respect of the matters for which the appellant had failed to appear. He was also charged with two offences of failing to appear. On 16 October 2000 Judge Patrick Clifford of the Middlesex County Superior Court signed a warrant for the arrest of the appellant, charging him with a further offence of larceny. Enquiries had revealed that on 30 May the appellant had stolen takings at a store in which he was working.
8. On 30 April 2004 the appellant was arrested at the David Lloyd Leisure Centre in Reading in the United Kingdom. The appellant's arrest led to the extradition hearing on 9 August 2004. The central points in this appeal concern the procedure adopted by the district judge and its impact upon the fairness of the hearing. The appellant has a history of mental ill-health. In the past he is said to have attempted suicide and has more recently threatened suicide.
9. We have been provided with a witness statement from the appellant's solicitor, Mr Sotiris Yiakoumi, the copy of which appears in the court's bundles is unsigned. Mr Yiakoumi says that the appellant was produced at Bow Street Magistrates' Court on 26 July 2004 and the hearing was set for 9 August. On 23 July a request was made for prior authority from the Legal Services Commission to instruct a consultant psychiatrist. Authority was not given until 12 August 2004, three days after the hearing, and a consultant was instructed on 13 September. He provided a written report dated 16 September and we have that report at page 158 of the judicial review bundle.
10. Mr Yiakoumi spoke to the office at Bow Street Magistrates' Court on 3 August 2004 to express his concerns that he would not be in possession of important material on the day fixed for the hearing. He was advised to write to the court. That day he wrote a letter which, if his office protocol was performing properly, should have arrived by facsimile the same day and the original by the course of document exchange. That letter read:

"We write to inform you that counsel will be applying to adjourn the hearing on the above mentioned date, so that our client can be assessed by a psychiatrist. Our client has instructed us that he has been treated by psychiatrists in the United States of America and it is counsel's opinion that the instruction of a psychiatrist is essential in these proceedings in order to provide the foundation for cogent and realistic submissions before the judge."

11. In the third paragraph of his letter, he wrote:

"Should you have any queries regarding the above matter please do not hesitate to contact either Sotiris Yiakoumi or Simon Grant of this office."

12. No reply was received from the court, although a reply was received from the Crown Prosecution Service at Ludgate Hill, to whom the letter had been copied. On 9 August, before the extradition hearing commenced, counsel for the appellant made an application for an adjournment. The district judge refused that application and he gave his reasons in writing as follows:

"Prior to the commencement of the hearing, I was asked by the defence to adjourn the proceedings for the preparation of a psychiatric report in connection with Mr Raffile's human rights. Notice of the application to adjourn not having been given in advance of the hearing, I was obliged to commence the hearing in accordance with section 76(4)."

13. Mr Del Fabbro, for the appellant, criticises this decision for three reasons. First, notice of an application had been given by letter of 3 August. Section 76 contained no guidance as to the form in which an application should be made, and, in the circumstances, the onus was upon the court to respond to it. Second, and in any event, the district judge enjoyed a jurisdiction to adjourn, independent of section 76 of the Extradition Act 2003, either under the common law, or under section 77(1), which reads:

"In England and Wales, at the extradition hearing the appropriate judge has the same powers (as nearly as may be) as a magistrates' court would have if the proceedings were the summary trial of an information against the person whose extradition is requested."

14. Section 10 of the Magistrates' Courts Act 1980 empowers a Magistrates' Court, at any time, whether before or after beginning to try an information, to adjourn the trial. Third, Mr Del Fabbro submits that the application should have been granted on its merits.
15. Miss Ezekiel, who appears for the respondent and appeared at the extradition hearing, recalls that the letter of 3 August was drawn to the district judge's attention. It is not, however, clear whether or not the district judge accepted that the court had been notified. The words used by the district judge in his written reasons, "notice of the application to adjourn not having been given in advance of the hearing", suggest that he was not so satisfied. As to the issue whether, notwithstanding the terms of section 76, the district judge enjoyed a discretion to adjourn, the answer can only, in my view, be found in an interpretation of the section. That part of Part 2 of the Act which applies to category 2 territories, as defined by the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003, is expressed in terms which are mandatory. The consequences which follow failure to take the steps required are spelled out. Section 71, which permits the issue of an arrest warrant, will only apply under subsection (1) if the correct documents have been sent to the appropriate judge by the Secretary of State.
16. By section 74(6), if an arrested person is not brought before the appropriate judge as soon as reasonably practicable, the judge must, on an application by the arrested person, be discharged. If within the time limited the Secretary of State fails to send the request of the requesting party, the Secretary of State's certificate under section 70 and a copy of the relevant order in counsel, the judge must by section 74(10) order the arrested person's discharge. By section 76(5), if the arrested person's extradition hearing does not begin on or before the date fixed under the section, and the person applies for the judge to be discharged, the judge must order his discharge.
17. The district judge appears, on the face of his reasons, to have construed this section as providing no discretion in the matter. In my view, he did have a discretion. Section 76(5) does not say that the hearing must be completed on or before the date fixed, but that it must begin on or before that date. There would, upon the ordinary meaning of the words used in section 76, have been no bar to the district judge opening the hearing, completing such parts of the initial stages of the hearing (if any) as were possible before an issue arose with which it was not possible to deal without unfairness to the appellant, and then adjourning the hearing part heard. Such a course would indeed amount to the application of section 10 of the Magistrates' Courts Act 1980 (as nearly as may be) to the proceedings before the appropriate judge. Having reached this conclusion, I consider that, if the district judge did refuse jurisdiction to exercise such a discretion, he fell into error.
18. In the light of that finding, it seems to me to be unnecessary to embark upon an exploration of the common law power, if any, identified in the 19th century.
19. The district judge proceeded to embark on the statutory steps he was required to take. No criticism is made of the district judge's decisions under section 78 which concern the initial stages of the hearing. He then embarked, as he was required by section 78(7), on a consideration of section 79; that is, whether there was a statutory bar to extradition by reason of: (a) the rule against double jeopardy as defined by section 80; (b) extraneous considerations as defined by section 81; (c) the passage of time as defined by section 82; or (d) hostage taking considerations as defined by section 83. No submission having been made to him on behalf of the appellant under section 79, the district judge proceeded, as he was required by section 79(4) and (5), to examine whether the appellant was accused of an extradition offence, but not alleged to be unlawfully at large, or whether he was alleged to be unlawfully at large following conviction. Section 84 applied to the former and section 85 to the latter. Both applied to the appellant, but since under section 84(7) the requesting state was the United States of America, the district judge was not required to make a decision whether the evidence established a prima facie case. Under section 85 he found that the appellant was convicted in his presence.
20. Finally, as required by both sections 84 and 85, he proceeded to section 87, which required him to decide whether the appellant's extradition would be compatible with his Convention rights within the meaning of the Human Rights Act 1998. I should express my gratitude for the analysis of the Act, so far attempted, to the skeleton argument of Miss Ezekiel which makes clear the procedure which the district judge was required to follow and the steps that he took in performance.
21. At this point, and for the first time, counsel for the appellant addressed the district judge on the merits of this -- the last stage. The district judge was informed that it would be submitted that, by reason of the appellant's mental condition, a return to the United States would infringe his Convention rights under Articles 2 and 3 of the European Convention on Human Rights. The application for an adjournment was renewed to enable the appellant to obtain expert psychiatric evidence. I think the district judge's reasons for refusing the application and deciding the merits in favour of the United States should be referred to in full:

"It is submitted on behalf of Mr Raffile that under section 81(1) I must decide whether his extradition to the United States would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 and, in particular:

i) Article 2 - the right to life.

ii) Article 3 - inhumane and degrading treatment.

The submission is based upon Mr Raffile's psychiatric state which is noted in the United States papers and the suggestion that he has been in five psychiatric hospitals in the United States. It is submitted that I should adjourn, indeed, must adjourn for a psychiatric report dealing with his background and current psychiatric state. The application to adjourn is opposed by the Government.

On the 8th January 1999, Mr Raffile was sentenced to eight years imprisonment which was suspended after nine months. The papers clearly state that he was on 'Suicide Watch' which indicates a caring state rather than one likely to be involved in inhumane or degrading treatment.

Mr Raffile was released from prison on the 7th October 1999 when probation commenced. One of the conditions of his release was 'to submit to such psychological treatment as may be deemed appropriate'. Mr Raffile was arrested in November 1999 as a result of violation of probation and of the charges against 'Girl A'. Mr Raffile was due to appear in court in the United States on the 31st May 2000 but failed to appear, having advised the judge in writing that he would not be there.

Mr Raffile was arrested in the United Kingdom on the 30th April 2004 and he has remained in custody since then. He has been on 'suicide watch' since then.

It is clear throughout that the authorities both here and in the United States have been mindful of a possible tendency to suicide on Mr Raffile's part. There has been no suggestion that during almost five years of unlawful liberty Mr Raffile has needed to see or seek any psychiatric treatment. I do not believe that section 87(1) requires me in every case to adjourn a case for further evidence. On the material before me, I am not persuaded that Mr Raffile's Human rights as outlined will be in any way violated by extradition.

Accordingly, I refuse the application to adjourn and I, therefore, proceed under section 87(3) of the Act."

22. It seems to me that this manifestly was a consideration of the application to adjourn on its merits, and it may well be that the district judge was consciously doing exactly what he knew he was permitted to do by Part 2 of the Act, notwithstanding the terms of section 76(4). Furthermore, he gave full reasons for declining to adjourn. The essence of his decision was that any mental illness from which the appellant was suffering, and in particular his tendency to suicide, was something of which the United States prosecutor was well aware and to which the court at trial was bound to have regard. To return the appellant could not therefore risk breach of the appellant's Convention rights.
23. The documents submitted in support of the application demonstrated that, while serving his nine-month period in custody, the appellant was on suicide watch. While it seems to me that the district judge's decision not to adjourn was within the proper margins of his discretion and cannot reasonably be described as procedural unfairness, I do not wish to suggest that it is a decision which I, for my part, would have made in the district judge's position.
24. Section 104(1) of the Act describes the powers of this court on appeal under section 103, which may be upon a question of law or fact. The court may either (a) allow the appeal; or (b) direct the district judge to decide again the question decided at the hearing; or (c) dismiss the appeal. By subsection (2), the court may allow the appeal only if either (3) the judge ought to have decided a question differently, and had he done so he would have been required to order discharge, or (4) an issue was raised for the first time or evidence is for the first time available which was not available at the hearing and the issue or evidence would have resulted in the judge deciding a question differently, and had he so decided, he would have been required to order the person's discharge; otherwise, this court must dismiss the appeal.
25. We now have the advantage of reading the evidence which the appellant sought to adduce at the extradition hearing. It is a psychiatric report dated 16 September 2004 from Dr Partovi-Tabar a consultant psychiatrist of the Cardinal Clinic in Windsor. Dr Partovi-Tabar saw the appellant at Her Majesty's Prison Brixton on 15 September and a number of documents supplied by the appellant's solicitor, including weekly reports from the appellant's supervising medical practitioner at Silver Hill Hospital, New Canaan, Connecticut, Dr Ellyn Shander, during his stay at that hospital in the month of August 1994. The report is, in my view, carefully and objectively phrased.
26. Dr Partovi-Tabar records the appellant's admission to Silver Hill Hospital at the age of 18, having attempted suicide, suffering a severe depressive illness for which he was prescribed a substantial dose of tricyclic antidepressant medication. His teenage behaviour was marked by impulsive and unpredictable behaviour. He was then judged to be a high risk for self-harm and suicide. The origins of his illness and disturbance may be attributable to his dysfunctional upbringing.
27. However, following his release from hospital, in or about September 1994, the appellant continued with his prescribed medicine for a period of only one month. Since that time, as he told Dr Partovi-Tabar, he has not been in contact with medical or psychiatric services, either in the United States or in the United Kingdom. He has, on the contrary, been working, been self-reliant and has now acquired a small family.
28. By the time he was seen by Dr Partovi-Tabar, however, the appellant had been in custody for nearly 5 months. He found the appellant to be suffering a moderate depressive illness, with some psychotic features. He appeared to be determined to attempt suicide if he were ordered to be extradited to the United States. In Dr Partovi-Tabar's opinion, should the court decide on extradition, a thorough risk assessment and risk management would be of paramount necessity. The contents of this report demonstrate that, when refusing an adjournment, the district judge had well in mind the relevant features of the illness contended by counsel on the appellant's behalf. Had the district judge been in possession of this report, I have no doubt that he would have reached exactly the same conclusion, namely that no risk to the appellant's Article 2 and Article 3 rights would attend a return to the United States.
29. Mr Del Fabbro now argues that a return to the United States would risk also a breach of an Article 8 right to physical integrity of Article 3 proportions or verging upon it. Miss Ezekiel, in response to this submission, has drawn the attention of the court to a decision of the House of Lords in R(Ullah) v Special Adjudicator [2004] 2 AC 323, and in particular, at paragraph 24, the speech of Lord Bingham of Cornhill in which he said this:

"While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case. In relation to article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment ..."

30. Mr Del Fabbro's argument presupposes a return to a jurisdiction which does not acknowledge or apply an obligation to preserve life and physical integrity for a man in the appellant's position. We are not here, in my view, in the realms of such a case. Insofar as return may amount to interference with any family life the appellant has acquired in the United Kingdom, return would nevertheless be a proportionate response given the obligations which this country has to return those accused of serious crime and fugitives from justice in the requesting state.
31. In my judgment, neither the new evidence nor the gloss on the submissions made, should move this court to allow the appeal under section 104(1)(a) and subsection (4) of the Act on these grounds.
32. Mr Del Fabbro raises a new issue before us, namely the prospect of a fair trial within the meaning of Article 6. He submitted that, by reason of what he described as sensational publicity at and since the time of his appearance on fresh charges of sexual assault upon A, the appellant cannot expect a fair trial in his home county. This is, in my view, a matter for consideration not by the district judge, but by the court in New Haven, Connecticut. The necessary qualification for extradition is a fair trial. That is an obligation manifestly accepted by the United States. How a fair trial is to be achieved is for consideration by the court of trial.
33. In the course of submissions, Mr Del Fabbro conceded that there was nothing which could have been drawn to the district judge's attention which signified any risk that the court at trial would not attend fairly to these issues. He had nothing to place before us which demonstrated the presence of such a risk. The essence of Mr Del Fabbro complaint's was simply that the district judge did not consider the issue as he should.

The submissions made to us do not reach the minimum cogency required to persuade me that we should direct a re-hearing of the issue, let alone allow the appeal under section 104.

Having made his decision under section 87, the district judge was then faced for the first time with an application from counsel to address him on other matters -- specifically, the passage of time. The district judge held that he could not do so since he had already made his decision on that issue in the absence of submissions made at the appropriate time. The procedure in which he was engaged was a staged progress through the relevant sections, each of which was dependent upon a decision previously made. He could not be expected to reopen those decisions at such a late stage of the hearing. In fact, passage of time under section 79(1)(c) was three steps back in the procedure. Two of those steps involved decisions made under section 84 and 85 which were uncontested; while, on the other hand, section 79, to which the district judge's attention was being redirected, created statutory bars to extradition. If it was the case that, as a result of misunderstanding or neglect, counsel had failed to advance submissions at the appropriate time, it is my view that those submissions should have been heard and, if necessary, the district judge's previous decisions reopened for that purpose. Not to do so was capable of resulting in procedural unfairness, and, at worst, injustice. This conclusion is, I believe, demonstrated by the Secretary of State's reluctance to reopen issues which were properly before the district judge for decision.

I therefore turn to the question whether any unfairness or injustice has in fact resulted from delay. Section 82 of the Act provides:

"A person's extradition to a category 2 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large (as the case may be)."

34. It cannot be asserted that any delay in this case is being occasioned by the dilatoriness of the United States, rather than the actions of the appellant himself in fleeing the jurisdiction to escape prosecution: see Kakis v the Government of the Republic of Cyprus [1978] 1 WLR 779 HL, in particular the speech of Lord Diplock at pages 782 to 783. I would reject the submission on this ground also.
35. Mr Del Fabbro invites us now to consider an issue under section 91 of the Act, which provides as follows:

"(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."

The evidence upon which we are invited to decide this issue is the psychiatric report to which I have already made reference. Nowhere in that report is it suggested that the appellant is not fit to stand trial. The only risk identified is the risk of suicide which ante-dated the appellant's flight from the United States and was plainly effectively managed while the appellant was serving his sentence in the United States. Mr Del Fabbro's submissions on this matter were somewhat confusing. I understood him to submit that the appellant was not concerned about his safety in the United States, rather he was more concerned about his safety in the United Kingdom if this court were to order extradition. However, we had earlier been told that the appellant is currently under close supervision in prison.

Miss Ezekiel, for the United States, has drawn our attention to a decision of this court, differently constituted, in Warren v Secretary of State for the Home Department [2003] EWHC 1177, under the 1989 Act in which it was the Secretary of State's order for return which was being reviewed. The court held that, provided the Secretary of State was satisfied that the state to which the applicant was to be returned adopted proper procedures which are fair to an accused for the determination of the issues of fitness for trial, the appropriate forum for such a decision was the court of trial. The risk of any deterioration in mental health remained a matter for decision for the United States, provided the Secretary of State was satisfied of the fairness of the decision-making process.

Having compared the evidence available to the court in Warren with the report of Dr Partovi-Tabar, it does not seem to me that this appellant's condition reaches the minimum seriousness required to engage considerations of fitness to stand trial. I can find nothing oppressive in requiring the appellant to undergo his sentence and his trial, notwithstanding his moderate depressive illness.

Somewhat late in the day, Mr Del Fabbro raised for our consideration an issue as to whether the Secretary of State's order for extradition was procedurally valid. This, it seems to me, is not a matter which this court can deal with today. We were invited by Mr Del Fabbro to consider dealing with the matter today, either by directing the district judge to amend the charges of which he had notified the Secretary of State, or by allowing the appeal to that extent and amending them ourselves. Miss Ezekiel submits that we should make no order since it will be the argument of the Secretary of State, as she understands it, that he has the power to amend the charges for himself.

There remains the procedural question whether it was necessary to issue concurrently an application for judicial review, together with this appeal under section 103. The subject of the application for judicial review was procedural unfairness at the hearing. An appeal under section 103 may be brought on an issue of law or fact. The court has power in an appropriate case to direct a re-hearing of any question decided at the hearing. In my view, that power is wide enough to embrace the refusal to adjourn in the factual circumstances of this appeal and its consequences, in common with Collins J who considered the leave application on the papers and concluded, that an application for judicial review was unnecessary. There may, however, in other cases be circumstances which are not embraced by the terms of section 103 and section 104 and do require the consideration of the exercise of prerogative powers.

For the reasons I have given, I would refuse leave to apply for judicial review. I would dismiss the appeal, but I would give liberty to apply to the Government of the United States should there be any outstanding issue with regard to the amendment of the charges which the court should hear.

I should note for the purposes of any court which does hear such an application under the liberty to apply, that it is acknowledged by Mr Del Fabbro on behalf of the appellant that it is a matter which is technical only.

36. LORD JUSTICE ROSE: I agree and add only that any such application, as my Lord has indicated, must be made within 14 days. The appeal is accordingly dismissed.
37. MR DEL FABBRO: My Lord, may I seek your Lordship's order that there be assessment of the costs in this case?
38. LORD JUSTICE ROSE: You have a representation order, do you?
39. MR DEL FABBRO: We have a representation order. My Lord, there were two representation orders -- one under the Act and one we were forced to apply under the --
40. LORD JUSTICE ROSE: If you need an order, Mr Del Fabbro, we make it.
41. MR DEL FABBRO: I am grateful. I think it is called, community legal aid representation order -- something to that effect. I will get the exact wording.
42. LORD JUSTICE ROSE: Thank you.