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
		18th March 2009

1. SIR ANTHONY MAY: The court is very frequently, as it happens, addressed by advocates to the effect that a case is unusual. It happens in almost every case that comes before the court. This really is, in my view, not only a most unusual case but in one respect I think exceptional.
2. The appellant whose extradition to Latvia on a Category 1 European Arrest Warrant was duly ordered by Senior District Judge Workman on 4th September 2008 in the Westminster City Magistrates' Court, seeks to appeal that decision, not for any alleged error that the District Judge may have made, but because on the very following day, he attempted to commit suicide in Wormwood Scrubs Prison. Not only did he attempt to do so but he very nearly succeeded. He says, or it is said on his behalf, that his suicide attempt was a reaction by a mentally depressed and unstable person to his then imminent extradition to Latvia and it is said on his behalf that although he largely recovered from the immediate physical effects of his very serious suicide attempt and his condition in prison has been managed by doctors and others so as to avoid a further suicide attempt so far, uncontested psychiatric evidence says that if he is to be extradited to Latvia, he will commit suicide. The report says that in terms or, at least, one supposes, make every effort to do so.
3. These facts are necessarily evidence which was unavailable at the extradition hearing. That is obviously correct and it is said that if those facts had been available to the District Judge, he would have decided the question differently and ordered the appellant's discharge accordingly upon that argument. The court has the jurisdiction to allow the appeal and order his discharge.
4. He says that he should be discharged under section 21 and/or 25 of the Extradition Act 2003, there being no point now in waiting to see if the serious risk of suicide will recede or go away. That point going to the possibility of an adjournment under section 25 which is not suggested by either party.
5. This appeal came before the court on 21st January 2009 when it was adjourned, as I at least then understood for the respondent to respond to the psychiatric evidence that was then recently available on behalf of the appellant. I have to say that I understood, although Mr Lloyd suggests that this was perhaps a bit of a misunderstanding, that the expectation was that responding psychiatric evidence might be sought. There is no responding psychiatric evidence. On the contrary, there is an addendum report from the original psychiatrist who confirms his original opinion.
6. There is, however, some general written material from Latvia to the effect that, if the appellant is extradited, he may qualify for bail, or if not, that the Latvian prison authorities have medical and other arrangements properly in place, which will continue, so I suppose, the kind of treatment which the appellant has been having in Wormwood Scrubs and will, if necessary, restrain him from suicide or self-harm, or at least do everything that is possible so to do.
7. On the other hand, as Dyson LJ said in the case of J v Secretary of State for the Home Department "someone who is sufficiently determined to do so can usually commit suicide." On the other hand, this court will not lightly conclude that a threat of suicide is sufficiently grave and likely to be carried out successfully, so that what would otherwise be the due process of extradition under international arrangements should not take place.
8. Section 21 of the 2003 Act requires a judge at an extradition hearing to decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998. If the judge decides that extradition would not be so compatible, he must order the person's discharge. Section 25 applies if the person's physical or mental condition is such that it would be unjust or oppressive to extradite him. If so, the judge must order the person's discharge or adjourn the hearing to see if his condition improves. As I say, Mr Lloyd, on behalf of the respondent, does not suggest that an adjournment would be a suitable way of the court dealing with the problem in this case.
9. There is a considerable and, to some extent, unsatisfactory lack of evidence in this case. Lack of evidence in this respect, that although the psychiatric report contains certain material as to what the appellant says is the cause or a cause of his mental condition, and where certain descriptions are at secondhand given of treatment that he has historically, according to him, received in Latvia, there is no systematic evidence at all to support a detailed case that treatment in Latvia, other than in prison, might be serious or the subject of a possible case under Article 3 of the European Convention on Human Rights. That case, as it were, is in the background but it is not supported by systematic evidence.
10. There are points to be made about consistency and so forth of the material that is reported in the psychiatrist's report. There are by contrast also points to be made to the effect that the material from Latvia is of an entirely general nature and does not address the kind of treatment which the appellant would receive in a Latvian prison, so as to address the particular problem which the psychiatric evidence discloses in this case. In short, the court is faced with a stark decision, unsupported by detailed and systematic evidence. I think it is fair to say on both sides.
11. The European Arrest Warrant concerns two offences of theft, one of which by description might be characterised as burglary. The offences are stated to have occurred within a week of each other, in May 2007. In the first of them the appellant is alleged to have stolen a mobile phone worth 277 Lats, having entered a property to do so. In the second of them he is alleged to have stolen a mobile phone worth 45 Lats upon what looks to be more conventional theft grounds alone. The total value of the property is stated to be 344 Lats and Miss Kapila tells us is current exchange rates that total value is of the order of £450.
12. Some proportionality case is suggested in relation to these offences, the theft of two mobile phones and extradition which it is said will lead to suicide. In response to that, Mr Lloyd submits that these are nothing like trivial offences and he also points out that material from Latvia indicates that the appellant has previous convictions and on three occasions has served what is referred to as a liberty deprivation. No doubt he was sent to prison and details are given of that. Accordingly, in my view, we are not concerned with trivial offences. We are not on the other hand concerned with the kind of offences that concern injury or serious attacks on individuals.
13. Highlights of the psychiatrist's first report are as follows. He describes how the appellant hanged himself with his bed sheets on 5th September 2008 in his cell at Wormwood Scrubs Prison. The nurses who found him were unsure how long he had been hanging when he was found. He was given cardio pulmonary resuscitation as he had no pulse. He was given two cycles of resuscitation with adrenalin and gained a cardiac output. The prison doctor attempted incubation but failed. He achieved ventilation and oxygenation with a laryngeal mask. He was then taken to the emergency department of Charing Cross Hospital where he was intubated to secure an airway on his arrival and taking the matter shortly, he was admitted to the intensive care unit and received continuous ventilation. He remained there for some days and eventually was reviewed by an ear, nose and throat team with a view to excluding significant laryngeal pharyngeal swelling. By day nine he was fully conscious. He was discharged from the intensive care unit at 12.30 pm on 15th September 2008, that is to say 10 days after his suicide attempt and sent to a high dependency unit in Charing Cross Hospital. He was discharged from hospital and admitted to the health care centre of Wormwood Scrubs on 23rd September 2008.
14. I read that as a serious attempt at suicide in prison which very nearly succeeded. He was seen by doctors on a number of occasions including on 23rd October 2008, when he was stable but isolating himself and when he said that he tried to kill himself to avoid extradition to Latvia. He was on that occasion not very forthcoming. He said that he had continuing ideas of self-harm and suicide but did not have any at the moment of that particular occasion. He continued to be reviewed throughout November. He was kept on a gated cell in protective clothing and advised to continue his medication. He appears, broadly speaking at least, to have done so.
15. The psychiatrist's conclusions and recommendations included that the appellant was currently fit to attend court proceedings. This is in the January report. He currently suffers from depression and he became depressed before his extradition hearing on 4th September 2008. It was highly likely that he was despondent and hopeless, believing he would definitely be sent back to Latvia to serve a possible prison sentence of up to 10 years. He suffered from memory impairment after the suicide attempt. He was unable to remember his girlfriend's name. He also gave a different account, that is his parents were dead when in fact they were alive. It was also possible that this was due to mistakes made by the interpreter. He did not, in the opinion of the psychiatrist, currently suffer from a mental illness of a nature and degree that would necessitate detention in hospital under the Mental Health Act 1983 and 2007, but he suffers from emotionally unstable personality disorder and a moderately severe depressive episode. This, says the writer of the report, Dr Drayer, makes it difficult for him to cope with stressful events and makes him more likely to attempt suicide and self-harm. The depressive episode is a mental illness as defined in the international classification of disease (Version 10 of the World Health Organisation). If he remains in the United Kingdom he can be linked in with a community and health service:

"Mr Jansons has a long history of severe self-harm. On 5th September 2008 he seriously attempted to kill himself and landed in the intensive care unit at Charing Cross Hospital. If it had not been for the vigilance and competence of the nurses in Wormwood Scrubs, he would not have survived the attempt. It is very likely that if he is sent back to Latvia his mental state will deteriorate and he will attempt to kill himself. The likelihood is high that he will succeed in killing himself."

The addendum report to which I have referred is dated 23rd February 2009 and it elaborates on those matters. The doctor reports in these terms:

"There was somewhat of an improvement in Mr Jansons' mental state. Unfortunately he still remained at risk of suicide. He continued to isolate himself and not mix with any other of the inmates and did not talk to any of the nurses. Due to his high risk of suicide, we had to keep him in protective clothing ie clothing he cannot tear to make nooses to hang himself. He looked depressed at times. He appeared lethargic.

I ask him about his experiences in prison in Latvia, he told me he had been assaulted a number times in prison. He said he had broken ribs, broken nose and bruising. When I asked him who did he said the other inmates. He said the other inmates attempted to kill him because he was not like others. When asked to explain it further, he said it was because he looks and is different. He said that if he returns to Latvia other inmates would kill him. When asked about being sexually assaulted he denied but said there were several attempts. When I questioned him in depth about how he was feeling, I discovered he was experiencing flashbacks to the time in prison in Latvia."

These are terms of the psychiatrist's most recent conclusions and recommendations:

"Mr Jansons suffers from a depressive illness as well as post-traumatic stress disorder which are both psychiatric illnesses as classified in version 10 of the World Health Organisation international classification of diseases and has responded partially to maximum doses of antidepressant medication. If he is sent back to Latvia his mental state will deteriorate and he will kill himself. He showed lethal intent in his previous suicide attempt. Were it not for the vigilance of the staff at Wormwood Scrubs and advance medical techniques he would have been dead or severely brain damaged. It will make Mr Jansons severely depressed and aggravate his post traumatic stress disorder. Basically, he will be sent to what triggered his mental illness. His depression and post traumatic stress disorder is long standing but still responsive to medication. If he is sent back to Latvia his PTSD will become more severe and the longer he has it the less likely it is to respond to medication or other psychological therapies and get better. Some sufferers of chronic PTSD develop an enduring personality change due to catastrophic events. In Latvia Mr Jansons believes he will face assaults, attempts to kill and rape him. He is convinced that if he is sent back to Latvia his life is over."

Whatever may be said internally about those two reports, the fact remains they constitute unchallenged evidence before this court and contain the unqualified statement that if the appellant is sent back to Latvia, his mental state will deteriorate and he will kill himself.

16. The additional material from the Riga District Court is mainly in a letter dated 21st January 2009. It refers to the possibility of bail if the Riga District Court were so to decide. It refers to Latvia as a Member State of the European Union, having all basic requirements related with implementation and protection of the rights of persons held in custody. It says that special attention is paid to arrested persons with a tendency to self murder suicide. They are under observation and, in the case of necessity, they are transferred to the special unit of the prison hospital. There is reference to psychiatric care and medication and the possibility that a prisoner can be put in the prison hospital or, in the case of necessity, can be sent to another health institution and there is the possibility of receiving additional health care services at their own expense. There are then details of the appellant's previous convictions and the statement that Latvia is a Member State of the European Union which complies with and ensures international requirements, including security arrangements which must be put in place, so as to prevent physical violence including physical violence towards prisoners.
17. The burden of that, which I would accept, is that the prison authorities in Latvia will take such proper steps as they are able to manage the appellant's psychiatric condition and, so far as they are able to prevent, his suicide. Mr Lloyd, in those circumstances, as one of his submissions, says that since the appellant is unable to gainsay that and could not properly do so on the state of the evidence, he is unable to make any case, be it under section 25, Article 8 or Article 3 that his extradition would be a violation of his human rights or oppressive because he is unable to demonstrate that the conditions in prison in Latvia are not such as to be able properly to deal with the situation of his mental health and his suicide risk, in the same way, as the English prison authorities have been able to do so between September 2008 and the present time.
18. The law relevant to this question is essentially uncontentious and is helpfully set out in detail in Miss Kapila's consolidated skeleton argument, the contents of which Mr Lloyd does not seek to say is in any material respect wrong.
19. The heart of the matter perhaps, at least so far as Article 3 is concerned, was given in the judgment of Latham LJ in the case of Kwietniewski v Circuit Court In Tarnobrzeg Poland [2008] EWHC 3121 (Admin) where Latham LJ said:

"I entirely accept that a risk of suicide, on sufficiently well­established and clear evidence, can form the basis of a proper plea that the individual's Article 3 rights may be infringed by any action which could trigger suicide. That is well established in immigration law; and there seems to me to be no reason why the same principle should not apply in extradition cases."

However, there may be analytic problems in relation to a case in the present instance under Article 3. The essence of the analytical problem being that whilst the appellant can argue strongly for some of the elements which Dyson LJ discussed in the case of J v Secretary of State for the Home Department as being relevant factors, others are either not there or not there sufficiently supported by evidence.

20. Parenthetically it seems to me that the single sentence burden of this case is that the evidence shows that if the appellant were to be returned to Latvia, his mental state is such that it would (a) deteriorate and (b) deteriorate to such an extent that he would commit suicide.
21. The cause of that, however, as being the responsibility of people or institutions in Latvia is scarcely adequately established on the evidence. It is just the mere fact. Miss Kapila would suggest in the suicide case that is really all that is required. But it is just worth recalling that the six factors that Dyson LJ was concerned with in J v Secretary of State for the Home Department are the following:

The first factor requires an assessment to be made of the severity of the treatment, which it is said the applicant would suffer if removed. This must attain a minimal level of severity. The treatment in this case is in the sense discussed by Dyson LJ, not really established. The treatment simply consists of his removal, if that be the case, to Latvia. The second consideration is there must be a causal link between the act or threatened act of removal or expulsion and the inhuman treatment relied on as violating the applicant's Article 3 rights. In the context of that case that was inhuman treatment which was alleged to take place on arrival. In the present case it seems to me that the evidence does not establish treatment of that kind. Again, it is the fact of removal and its effect upon his mental state. The third consideration in what was referred to as "a foreign case" is that the Article 3 threshold is particularly high, simply because it is a foreign case. No doubt that would apply in any Article 3 case.

22. The fourth consideration which comes closer to this case is that an Article 3 claim can in principle succeed in a suicide case and fifthly in deciding whether there a real risk of breach of Article 3 in a suicide case, a question of importance is whether the applicant's fear of ill-treatment in the receiving State upon which the risk of suicide is said to be based is objectively well founded. If the fear is not well founded that would tend to weigh against there being a real risk that the removal will be a breach of Article 3.
23. In the present case, whether the applicant's fear of ill treatment is objectively well founded is more or less obliterated by the fact that well founded or not, the evidence is that he will commit suicide if he is returned. The sixth and further question of considerable relevance is whether the removing and/or the receiving State has effective mechanisms to reduce the risk of suicide. If there are effective mechanisms that too will weigh heavily against an applicant's claim that removal will violate his or her Article 3 rights. I have already said that I accept in general terms, on the material available to this court, that the prison arrangements in Latvia are such that all proper steps would be taken to treat his illness and to prevent his suicide. Accordingly, in my view, there are problems at least with an Article 3 case but the fact remains that the evidence before the court is that if he is extradited, he will commit suicide.
24. Less analytically problematic to my way of thinking are the alternative ways of putting the case. I have already referred to section 25 of the 2003 Act and it is instructive to read that Lord Justice Maurice Kay said in the case of Pax that he could not conceive that an appellant who failed under section 25 on factual circumstances, such as in that case, could succeed by reference to Article 3. The question under section 25 is not whether it would be unjust to return the appellant to Latvia, but whether it would be oppressive to do so. There is a clear cut case that he would upon the evidence that if he were returned, his mental state would deteriorate and he would commit suicide.
25. As to Article 8, in my judgment, there plainly is an Article 8 interference case of some seriousness to be considered and if one is considering, as one must, whether the interference with his private life would be disproportionate Dyson LJ has enunciated in the case of Jaso v Central Criminal Court (No 2) Madrid [2007] EWHC 2983, that in order to reach that stand there has to be striking and unusual facts. It seems to me that the facts of the present case are indeed striking and unusual.
26. Mr Lloyd in his persuasive submissions has submitted essentially this: that there is no evidence that the appellant's condition will inevitably deteriorate notwithstanding the treatment that he will get in Latvia. He submits that the mere fact that there will be mental deterioration is not sufficient to cross the Article 3 threshold. The point of submission to which Mr Lloyd returned was simply this. The court must accept, as indeed I do, that there are appropriate arrangements in place in the prison system in Latvia and that, as he would have it, the appellant cannot establish that the Latvian authorities will not properly cope with his mental condition and properly cope with the risk of suicide.
27. Set against that is the uncontradicted evidence not only that his mental condition will be triggered to deteriorate if he is returned to Latvia but also and in unqualified terms that he will commit suicide if he is returned to Latvia.
28. Taking account, of course, of the fact that Dr Drayer is unable to express an opinion as to the effectiveness or otherwise of prison arrangements in Latvia, it is nevertheless, of course, within his competence and it is unchallenged that he can assess what the appellant's mental state is and what he is able to predict will be the consequences of his return to Latvia, not because there may or may not be adequate arrangements when he get there, but from the very fact of his extradition.
29. There is, in my judgment, a quite stark and single decision which the court has to make in this case and that can be expressed under section 25 as whether it would be oppressive to order his return. In my judgment, in a very difficult case, it would be oppressive. It would, in my judgment, be oppressive to order his return when there is, on any view on the evidence, such a substantial risk that he will commit suicide. It is not as if this is an appellant who is threatening to commit suicide without any history of having tried to do so. Not only is he threatening that he will commit suicide and the doctor believes him but he has in fact, for the same reason, attempted to commit suicide in Wormwood Scrubs Prison and very nearly succeeded in doing so. In reaching the conclusion that it would be oppressive to return him, this is not a reflection on the ability of the Latvian prison authorities to protect him and provide the necessary treatment. But an assessment, so far as the evidence enables one to do so, that the risk that he will succeed in committing suicide, whatever steps are taken, is on the evidence, sufficiently great to result in a finding of oppression. The same line of reasoning, in my judgment, could be applied to Article 8 and I do not think it is necessary to proceed to Article 3. Under Article 8 it seems to me that the inevitable proportionality judgment that has to be made, taking account of the seriousness of the offences, the need to honour international treaties and the finding that the Latvian authorities will, generally speaking, take all reasonable steps to protect him, nevertheless has to be weighed against the risk which the doctor does not express as a risk but as a certainty that he will commit suicide, his mental state having deteriorated.
30. In my judgment, a judgment of proportionality for Article 8 purposes falls on the side of the finding that his Article 8 rights would be infringed.
31. For those reasons, in my judgment, the appeal succeeds and assuming that it is the appropriate order to make this court would order his discharge. For these reasons I would allow the appeal.
32. MRS JUSTICE DOBBS: I agree.
33. LORD JUSTICE MAY: That is the right thing to do that.
34. MISS KAPILA: I do not know if the court is also required formally to quash the order for his extradition.
35. LORD JUSTICE MAY: If that is formally necessary, we do so.
36. MISS KAPILA: I am grateful. Can I also ask for a legal aid assessment?
37. LORD JUSTICE MAY: Yes. Thank you very much.