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 WC2A 2LL
		17 July 2008

1. LORD JUSTICE PILL: This is an application by Michael Jervis to quash an order of District Judge Tubbs made on 31 March 2008 ordering his extradition to France.
2. The appellant is 37 years old. He was arrested in France in February 2004 on a charge of rape. He escaped from custody on 11 August 2004. He was convicted in his absence of an offence of escaping on 5 April 2005, and sentenced to one year's imprisonment. A European Arrest Warrant was issued on 26 May 2005. The appellant was arrested in the United Kingdom on 2 June 2006. In his absence, he had been convicted of rape on 24 March 2006. He was sentenced to six years' imprisonment, less the time served before his escape. In respect of that offence, a European Arrest Warrant was issued on 9 June 2006.
3. Points were taken before District Judge Tubbs. She dealt with them in a careful judgment. Reliance was placed on the proceedings constituting an abuse of the court's process. Reference was made on the appellant's behalf to his mental condition. It was alleged that his extradition would be incompatible with rights under Articles 3, 5, 6 and 8 of the European Convention on Human Rights.
4. We have been referred to proceedings at the hearing before the judge, which the judge summarised at page 112 of the bundle. The judge had before her a psychiatric report from Dr Jonathan Bisson dated 17 December 2007. Belatedly she had before her a report from Dr HT Amos, to which I will refer. The judge dealt carefully with the arguments, and submissions were made about the number of warrants which were issued. There were faults in them. Warrants were withdrawn and fresh warrants were issued. There were what might fairly be described as technical mistakes which were corrected in the warrant considered by the judge. The abuse of process alleged was that by the French authorities in their treatment of the appellant in prison and in relation to the proceedings.
5. The court received a note yesterday from Mr Cooper of counsel, who believed at that time that the appellant might wish to address the court himself. In the event, that has not happened, and we have heard submissions from Mr Cooper, in which he relies on the submissions made in his skeleton argument which we have considered. His emphasis is upon -- indeed, is almost exclusively directed to -- the mental condition of the appellant. Counsel also seeks to rely on the provisions of section 25 of the Extradition Act 2003, which provides:

"(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 in respect of whom the Part 1 warrant is issued 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."

6. Mr Cooper's submission is that, in all the circumstances, it would be unjust and oppressive to extradite the appellant. He relies on the abuse of process and the procedural defects in the European Arrest Warrants, not at this stage as discrete points, but as supporting his submission on section 25. If I may say so that does not in the slightest surprise me; it appears to me that the judge's treatment of the other points was both careful and accurate, and those allegations, taken independently, could not form the basis of an order in the appellant's favour.
7. The psychiatric report of Dr Amos, which it is clear that for some time the appellant was reluctant to have disclosed to the court, is dated 6 June 2007, that is many months before the hearing before the District Judge. There has been consideration in recent weeks (and I believe days) that further medical evidence would be submitted, but, on what I am told is express instructions, the appellant does not wish that course now to be followed. Mr Cooper relies therefore upon Dr Amos' report and two letters which I will mention. At paragraph 29 Dr Amos says:

"29. It is important ... to note that there is no agreement that Mr Jervis suffers from mental health problems and has done so for much of his life. These symptoms do seem to vary from time to time and particularly do seem to have been different on the two episodes which required admission. In my view, whatever the exact nature of the diagnosis, I think it is extremely likely that Mr Jervis' symptoms will become worse under stress.

...

31. ... It is very likely therefore that if he is extradited to France there will be a marked deterioration of his mental state. This is indicated by his reaction to him discovering that he had been convicted, in his absence, of rape when his mental state deteriorated and he was admitted to hospital in Cardiff.

...

33. ... This is particularly true [that is the need for careful treatment] as the conditions of this report, especially relating to the diagnosis, are tentative because of the lack of background information. This is also important as if Mr Jervis was to become severely ill, it is possible that his suicidal ideation would return and he would then need to be closely monitored by those responsible for his care."

8. Mr Cooper has referred to the frequent changes of mood of the appellant, and he says, and for presents purposes I am prepared to accept it, that the appellant's attitude to the litigation and what he wants to do is coloured by those changes of mood.
9. There is a letter from Dr Bisson, a senior lecturer in psychiatry, dated 13 December 2007. That was before the judge. The doctor referred to the complex manner in which the appellant presented himself and to the complicated history:

"... he certainly presents as very distressed ... He clearly has some symptoms of post-traumatic stress disorder, but with the information available to me at present I did not feel able to confidently make that diagnosis. Given the legal situation and lack of stability, I did not feel that a trauma focused approach was likely to be the best way forward at present ..."

Drugs were prescribed with a view to helping the appellant.

10. The second letter is much more recent and was not before the District Judge. It is from Dr Morris, the appellant's general practitioner, who records that: "At times Mr Jervis has become paranoid and agitated". Dr Morris refers to the reference to the local psychiatric teams:

"In my opinion Mr Jervis is finding it extremely difficult to cope with the stress of the court proceedings especially in view of his long history of anxiety and depression. It is my opinion that Mr Jervis will continue to exhibit symptoms of extreme anxiety and stress with occasional agitation and paranoia at times of extreme stress."

11. Mr Cooper says that the mental state described in those reports is aggravated by the mistakes in relation to the European Arrest Warrants, and also by the treatment of the appellant in France by the French authorities. He relies on the case of Atkinson v Government of the USA [1971] AC 197 and claims that because it would be an abuse of process, it would be "wrong, unjust, or oppressive to surrender the man". (Lord Reid p.232G)
12. On behalf of the respondent, Mr Smith has referred to the conduct of the French authorities, evidence of which was before the judge. There was a report from Dr Baize. There was evidence of the medical and court facilities which would be available to the appellant if in France. He refers to the decision in Boudhiba v the Central Examining Court No 5 of the National Court of Justice, Spain [2007] 1 WLR 124 where the application of section 25 was considered. The medical condition was set out fully at paragraph 59 of the judgment. Smith LJ then stated at paragraph 65:

"It is important, in my view, that the court should keep its eye firmly on the statutory question posed by section 25. The question is not whether the appellant is suffering from a psychiatric disorder with or without the added disadvantage of low intelligence; it is whether, by reason of his mental condition, it would be unjust or oppressive to extradite him. Spain is a civilised country. The evidence shows that, if extradited, proper examination will be made to ascertain whether the appellant is fit to stand trial. Such examination will also establish whether the appellant is a suicide risk and whether he is in need of psychiatric treatment. So, I would conclude that, even though it may turn out that the appellant is of low intelligence and might be unfit to stand trial, it is not unjust or oppressive to extradite him to Spain. I would refuse the application for further adjournment and would also hold that the tenth ground of appeal fails."

13. This is not case where an adjournment is requested, and rightly so. Reliance is placed on the medical evidence. In my judgment, that falls far short of establishing that it would be unjust or oppressive to extradite the appellant. The reports produced on his behalf, including the recent letter, do not go that far. They do not, viewed alone, indicate a condition which, in relation to extradition to France, would come within the meaning of the section. As in the case of Boudhiba, there is evidence from the French authorities which reinforces the conclusion reached by the District Judge, with which I agree, that the section 25 criteria of injustice and oppression are not in this case satisfied.
14. I agree with the District Judge's conclusions throughout. I agree with her analysis of the separate issues which have not been the subject of specific oral submissions this afternoon. I agree with her conclusion on the medical issue. I see no reason to find that section 25 operates by reason of the presence of other matters relied on by the appellant. They do not, it appears to me, having regard to the wording of section 25, improve his case; neither does the recent report from the general practitioner.
15. For those reasons, I would dismiss this appeal.
16. MR JUSTICE KING: I agree.
17. MR SMITH: My Lords, thank you very much. There is one brief matter, and I hope your Lordship will forgive me. It is a matter of pedantry, I am afraid. I think in your Lordship's judgment references to Boudhiba and the paragraph numbers -- the paragraphs to which your Lordship was referring to were paragraphs 59 and 65, not 44 and 59. I hope your Lordship will forgive me for pointing that out.
18. LORD JUSTICE PILL: I misread your skeleton, did I?
19. MR SMITH: It may be that my skeleton was not clear enough.
20. LORD JUSTICE PILL: Thank you. I will correct that on the transcript. Does anything else arise?
21. MR COOPER: My Lord, no. I am grateful.
22. MR SMITH: My Lord, no.
23. LORD JUSTICE PILL: No application for costs. So the appeal is dismissed with no order for costs.