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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Boulter v Secretary of State for the Home Department & Anor [2006] EWHC 2335 (Admin) (24 August 2006)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/2335.html
Cite as: [2006] EWHC 2335 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2 |
||
B e f o r e :
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| PETER BOULTER | (APPELLANT) | |
| -v- | ||
| (1) SECRETARY OF STATE FOR THE HOME DEPARTMENT | (1st RESPONDENT) | |
| (2) THE GOVERNMENT OF CANADA | (2nd RESPONDENT) |
____________________
Smith Bernal Reporting Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MISS CLAIR DOBBIN (instructed by Treasury Solicitors) appeared on behalf of the 1ST RESPONDENT
MR MARK SUMMERS (instructed by the CPS) appeared on behalf of the 2nd RESPONDENT
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Crown Copyright ©
- MR JUSTICE COLLINS: Before we go further I should deal with two applications that Mr Boulter has made to adjourn the proceedings and to seek to institute an appeal against the decision of the District Judge because as things stand the only appeal before me is an appeal against the decision of the Secretary of State that he be extradited to Canada.
- The background I do not need at this stage to go into in any detail. Suffice it to say that the allegation against Mr Boulter is, putting it very broadly, that he has been guilty of a substantial fraud in Canada. He came to this country following his being charged in Canada and released on bail and so he failed to comply with his bail conditions in Canada. A warrant was issued seeking his extradition. That came before the District Judge on 14th March 2006 and the District Judge refused to allow the appellant's claim that his medical condition was such as, in accordance with the provisions of the Act, should prevent his being sent to Canada because, putting it again very broadly, it would be unfair and wrong for him to have to face trial because of his condition. As I say, the District Judge refused to accede to that application and on 14th March sent the matter on to the Secretary of State.
- The Secretary of State for his part ordered the appellant's extradition pursuant to section 93 of the Extradition Act 2003 on 10th May. Mr Boulter was by then in custody because unfortunately he had failed to comply with the conditions of his bail here by not attending the Magistrates Court hearing.
- He did not receive the notification from the Secretary of State, he tells me, until 19th May, and on the 23rd he lodged a notice of appeal under section 108 of the Extradition Act and notified the Secretary of State that he had instructed solicitors, Messrs Whitelock and Storr, who are, I understand, experienced solicitors in this field of law. He had been represented before the District Judge but he tells me that he was not satisfied with the standard of the representation and in particular those representing him had not obtained up-to-date medical reports and had not put forward a full and proper picture of his medical condition which was considerably worse than appeared from such reports as were available, the latest of which from Canada was in January 2005.
- The Crown Prosecution Service were informed by the Court on 25th May that the appeal existed and the Government of Canada should have been served but were not served with notice of the appeal. However, they have had it drawn to their attention.
- On 9th June, at the request of the solicitors instructed by Mr Boulter, I granted a representation order so that from that time they were aware that they were not to be concerned with funding. They could do what they regarded as necessary in the interests of pursuing the appeal on behalf of the appellant. He tells me he was not aware that I had granted that order. There is no particular reason why he should have been provided that funding had not been an issue at any stage with the solicitors. In any event, the solicitors continued, it seems, to try to obtain medical reports which the appellant had instructed them were needed, but that was without success, partly because since he was in prison there were difficulties in his seeing the relevant doctors in order to obtain reports on his present condition and partly because, he tells me, he was unaware that he could have obtained from the Government of Ontario the necessary records that way and it seems that his solicitors apparently were equally unaware.
- There was a hearing of the appeal listed for 7th July. It is important to remember that there are very strict time limits which are imposed to ensure or try to ensure that the court hears extradition appeals within a limited timescale to avoid delays in making final decisions whether extradition should or should not take place. In any event, it was clear, or should have been clear, to the solicitors by then that the appeal was against the wrong decision because what were being raised were medical issues and those were not directly the concern of the Secretary of State. Those were matters which were the concern of the District Judge and one of the possible grounds of appeal against a decision can be that there is fresh material and that fresh material would have resulted in a different decision so there certainly is a basis for an appeal that full material has not been obtained and put before the court. Nevertheless, the solicitors did not see fit to seek leave to appeal out of time against the District Judge's decision or apparently to advise the appellant that that was the situation.
- The Secretary of State contends, and correctly, that so far as the Act is concerned, that is the Extradition Act, the matters that he has to consider are limited and do not extend to the medical condition of someone who is to be extradited. On the other hand, he has to comply with the Human Rights Act and he is not able to direct extradition if to do so would breach human rights and a claim is made that because of his state of health the claimant's human rights would be breached were he to be returned to Canada. However, the matter was adjourned on the 7th because the day before the solicitors informed the court that they were no longer acting for the appellant and informed him likewise. He tells me that, as he understood it, that was because they had not been able to obtain the necessary information and because he was not able to instruct them privately they felt unable to make any further enquiries and accordingly they decided that they should not continue to represent him. If they did that then, as it seems to me, they were acting in a way which was not appropriate for a solicitor because they had a representation order and they ought to have come to the court to explain the position if in truth they felt that they had been unable to obtain information which might have had a bearing on the prospects of success in the appeal. However, I have no evidence one way or the other from them as to what the position was and of course it is not possible or appropriate to probe into advice or discussions that may have taken place between the appellant and his solicitors.
- However, it was not until 22nd August that a formal application was lodged with the court for leave to amend, as it was put, which effectively, as I say, was permission to appeal against the District Judge's decision well out of time.
- The Act itself lays down a strict time limit which has long since expired. There is an issue or may be an issue as to whether in those circumstances the court can extend time, notwithstanding that there is nothing in the Act which gives that express power. So far as I am concerned, I would need full argument and to be persuaded that there was no such power. But it is equally clear that it is a power which can only be exercised in a case which shows clearly that it is in the interests of justice that it should be done. I am afraid it seems to me that this case does not fall into that category. I sympathise with and I understand the difficulties faced by someone who is appealing in person from prison. But he had representation since the middle of June, he had the opportunity to receive the necessary advice and every opportunity to seek to amend at an earlier stage. He tells me that he did, shortly after 7th July, draft what he has call his "condescendence" which is effectively the formal application for leave to amend. He can only think that it must have got stuck in the prison system for rather a long time because he put it in the prison mailbox some days ago and indeed, as I understand it, he must have done that about a month ago on the account that he has given me.
- I am, I am afraid, not in the least persuaded in the circumstances of the history that it is necessary in the interests of justice to allow this amendment at this late stage. So I am afraid I am against the appellant on that basis.
- The second application is to adjourn the matter because he says that he wants to get further information from Canada and up-to-date medical reports. So far as the information from Canada is concerned, that will be historical and it does not seem to me that it will assist in deciding whether it would be a breach of his human rights to return him now.
- So far as the other is concerned. There are medical facilities available in prison and obviously his health should be and is being kept under review. He tells me that it has been agreed that he should be able to consult doctors with a view to assessing his condition and no doubt making a report on it if necessary. But due to difficulties of arranging such an appointment, that has not happened. As has been submitted, it seems to me that if it really were urgent then it would have been done. I have to decide the matter and I shall do so on the basis of the information that the appellant gives me, coupled with such information as exists on the medical side. I am doing this partly because as it seems to me at the moment he is going to have a singularly uphill task in persuading me that there is in truth a breach of his human rights were he to be returned to Canada where undoubtedly there are appropriate medical facilities available and where, if he is in a condition that renders him unfit to be tried, the court has ample power to make the necessary orders for his protection. I am afraid Mr Boulter I am against you on your application so we will now have to consider your appeal on the basis, as you know, that the Secretary of State's powers are limited, so essentially the only ground that you have is based on the Human Rights Act.
- MR JUSTICE COLLINS: This is an appeal under section 108 of the Extradition Act 2003 against the decision of the Secretary of State on 10th May last to order the appellant's extradition under Part 2 of the Act to Canada. He was charged in Canada with offences of fraud on a substantial scale. He was committed for trial or the equivalent there. He made an application to the court that he should not be tried because of his medical condition and that application failed. He suffered, and I can understand and to an extent sympathise with this, a high degree of stress as a result and he tells me that he sustained what in effect was a mental breakdown because of that refusal and that, coupled with his physical disabilities, led him to take what he now accepts was a foolish step, namely to jump his bail and the fly to, I think initially Glasgow, but certainly to the United Kingdom.
- The Canadians, not surprisingly, issued a request for his extradition and a warrant was obtained and was in due course executed. He appeared before the Bow Street Magistrates Court (I think it was still Bow Street at that stage) and the hearing was based upon a claim that he should not be extradited because in accordance with section 91 of the Act his physical and mental condition was such that it would be unjust or oppressive to extradite him. At that stage the evidence available was evidence which was somewhat ancient in the sense that it came from Canadian doctors and the latest was a report of January 2005, but the appellant in his evidence gave an up-to-date picture of his physical and mental health.
- It was clear that he suffered, and indeed it is clear that he still suffers from diabetes, a heart condition, blood pressure and circulation problems, and added to that anxiety and depression. He tells me that since he has been in custody in Brixton his condition has got worse and he now has problems with his hearing, he has had difficulties with his sight and the anxiety and the stress have contributed to the problems that exist in relation to his diabetes because his blood sugar level is liable to increase to an alarming extent and this has in the past resulted in what amounts essentially to a heart attack. Fortunately he was on that occasion revived, but he is afraid that that might well happen again. Indeed, before he was due to attend the Magistrates Court for the decision to be given, he was admitted to hospital, that was on 7th March, the day before the hearing. He was admitted because of chest pain and following examination and two nights in the hospital (according to the discharge record that I have) he was discharged on medication and it was indicated that he should have an outpatient follow-up and would require an angiogram but this could be arranged as an outpatient. That does not suggest that it seemed to the doctor then that it was urgent or so urgent that it required an immediate test to be carried out. He tells me that since he has been in Brixton he has tried to have arrangements made and the medical authorities have accepted that it is necessary that he should have tests and should seek medical advice and see the necessary consultants. That however has not been arranged and the concern is that his medical condition has deteriorated so that it would now be a breach of his human rights to return him.
- It is, under the Act, no part of the Secretary of State's concern directly to consider medical conditions short of a possible breach of human rights. The only basis upon which the Secretary of State, according to the Act, can refuse to return a person whom the court decides could properly be extradited is if there are three possible bars. First, the Secretary of State must decide whether it is a death penalty case - that of course does not apply here. Secondly, he must be satisfied that there are speciality arrangements in place - again that is not relevant here. Thirdly, he must not order extradition if the person was extradited from another territory and under arrangements between the United Kingdom and that country that territory's consent is required to his extradition from the United Kingdom to the relevant territory and consent has not been given - again that does not apply. There is nothing that gives the Secretary of State express power, as he used to have in general, to consider whether it was unjust or oppressive to return in the circumstances. That is a matter for the court, not for the Secretary of State. As I say, it is clear, and I do not think the contrary is being or has been argued, that the Secretary of State must have regard to the Human Rights Act and must not direct extradition if to do so would be a breach of an individual's human rights.
- The claimant has raised article 3 and has sought to rely on the case of D v United Kingdom. That case involved an individual with AIDS and he was to be removed to a territory where it was said (and indeed there was evidence that that was the case) that there would be no treatment available so that he would die in singularly unpleasant and miserable circumstances. The European Court accepted that that could amount to a breach of article 3 and in the circumstances did. This case does not come anywhere near that. There is no question but that there are proper medical facilities available in Canada. There are safeguards in the court system to ensure that someone such as the appellant who has a medical condition which means that it would be unjust and oppressive to try him will not face trial. Equally, if he is to be extradited, arrangements will be made to ensure that he is accompanied by a person with the necessary medical training and will have available the necessary medication to care for him en route. It is said that if he dies en route that is something which cannot be in any way remedied. I appreciate that, but he undoubtedly was able, last year, to fly from Canada to this country when he failed to surrender to his bail there and in those circumstances I am far from satisfied that even if there were up-to-date material on his medical condition it would suffice to indicate that it was so dangerous for him to be returned that he might well suffer in the way that has been indicated.
- There is also raised the possibility of a breach of article 8 but the Strasbourg jurisprudence makes it plain that when one is considering that and having regard to the provisions of article 8(2) it is necessary that the situation would be almost as serious as to constitute a breach of article 3 before it would be appropriate to regard return as being disproportionate.
- In all those circumstances, I am afraid that this is an appeal which has no reasonable prospect and never had any reasonable prospect of success and in those circumstances I am afraid that I have no option but to dismiss this appeal.