QEEEN'S BENCH DIVISION
FROM THE CITY OF WESTMINSTER MAGISTRATES COURT
District Judge Purdy
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE SILBER
| STEPHEN ALBERT HUTTON
|- and -
|THE GOVERNMENT OF AUSTRALIA
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Melanie Cumberland (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 4 February 2009
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Lord Justice Scott Baker:
This is the judgment of the court.
(i) extradition would not be an abuse of process;
(ii) his extradition was not barred by passage of time under s.82 of the Act;
(iii) his extradition would not be in breach of articles 3 or 5 of the European Convention on Human Rights under s.87 of the Act.
The material facts
Sections 82 and 91 of the 2003 Act
Section 82, as amended, provides:
"A person's extradition to a category 1 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 (a) committed the extradition offence (where he is accused of its commission) or (b) become unlawfully at large (where he is alleged to have been convicted of it) ."
Section 91 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 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."
"To my mind the evidence given live was a most welcome exposition of genuine expertise tempered with an acute awareness of the duty to provide impartial balanced material to assist the court. I was most impressed at his measured and considered stance in answering both counsel and me."
"The more stress the more likely to relapse is a common trait and few patients make 100% recovery if they relapse. It is "impossible" to predict who will recover just as much as who may relapse. He put the risk of relapse, if the current successful treatment regime is disturbed, as "significant" quantified as 60-65% chance, taking in general terms 3-12 months to "obtain adequate remission". At present Stephen Hutton is fit to plead but it is difficult to quantify how delicate that balance is. He was very emphatic in stressing the treatment regime is not simply drugs which could be increased to an extent to reduce the risk of remission. He said "it is not as simple as saying the treatment regime can be replicated as social environment cannot be even if drugs can". Social environment is deemed very much part of treatment. "Extradition is obviously an unquestionable stress". That said his current state is "relatively good well controlled and stable but we never know what is going to happen tomorrow it is really day by day". To me he said the "current situation is almost ideal given the seriousness of the illness.""
The district judge's reasoning is in his conclusion at page 4 of his 8 February judgment. He said:
"There is no dispute Stephen Hutton is suffering from long established paranoid schizophrenia. However, his condition is stable and under control notwithstanding that these extradition proceedings have been running some months. Ms Spearing argues this case is unique in that Stephen Hutton, unlike Davies and Warren, is currently "fit" for trial. Her argument is the 60-65% risk of relapse if removed from his current treatment regime will be "unjust" and "oppressive" albeit involving a degree of speculation as to any relapse and if so its treatment. Such a position is in my judgment fatal to any discharge pursuant to S.91. I am being invited to discharge a stable "fit" person in respect of an allegation of murder fearing he might or even may risk a relapse. That does not, in my judgment, come within S.91 which requires an actual current state of affairs. If I'm wrong I must be entitled to acknowledge that Australia has medical facilities available and the trial process can accommodate the kind of speculative difficulties that may arise. If Warren was not discharged on the basis the New York Court was the proper forum to determine his fitness for trial I fail to see how I can deny the Australian Court in Victoria the same privilege, the more so as, at present, there is no condition causing concern. Accordingly I reject the application to discharge pursuant to S.91 (3) (a) Ex. Act 2003."
"It will not generally be unjust to send someone back to face a fair process of determining whether or not he is fit to face trial. I accept that it may be wrong or oppressive to do so if the inevitable result will be that he will be found unfit. But even in those circumstances, there may be countervailing considerations. For example, if there is the counterpart of our process in the other country, where a person may be found to have committed an act which would otherwise have been a serious crime, particularly if it were to be a crime of violence involving risk to the public, and if it would then be appropriate to detain the person for medical treatment, it could be in the public interest to enable that process to take place. That is not this case, but I would not wish to accept that it is inevitably going to be oppressive to return somebody in such circumstances."
(i) he was wrong to conclude that s.91 required the court to look solely at the current state of affairs and to exclude any risk of relapse; and
(ii) he focused exclusively on the appellant's fitness to plead in respect of his mental condition whereas he should have taken into account whether his mental condition would entitle him to have a fair trial and the mental suffering his extradition would cause him.
In any event he submits the medical position has moved on and the situation on appeal must be decided in the light of the up-to-date evidence. He draws attention to s.104(4) of the Act which sets out the conditions for allowing an appeal which include the availability of evidence not available at the trial which would have resulted in the judge deciding a question differently and ordering the appellant's discharge. He submits that one option is to send the case back to the district judge to decide again whether the appellant's mental condition would make it unjust or oppressive to extradite him and that the district judge would then have the option of adjourning the hearing under s.91(3)(b) until the appellant's condition improves. We are unattracted by this submission as I do not think the solution is appropriate to the facts of this case. In any event, we are unpersuaded, without hearing further argument, that the district judge would have jurisdiction to adjourn under s.91(3)(b) because he has already completed the "extradition hearing," and if the case is returned to him it would simply be (per s.104(1)(b) "to decide again a question ...he had decided at that hearing".
Passage of time.
The judge said this on page 8 of his July judgment:
" .Stephen Hutton cannot be criticised for declining to answer police questions in Australia on 16th August 1985 and 25th September 1985 nor here in the UK 21st December 1991. Such was his right. What he cannot do is blame, by way of culpable delay or at all, the Australians and assert they had no interest in prosecuting for murder should be evidence exist. While it is apparent Tim White, the deceased's son, spurred a cold case review and subsequent Mutual Assistance Request leading to the 17th/18th May 2007 interviews and thereafter prompt formal extradition request leading to these proceedings, it cannot be said the Australians had no interest. Still less submits the prosecution, was anything done to create any sense of security. Had the 17th/18th May 2007 interviews not produced a confession the strong likelihood is even, despite strong suspicions, no extradition would have been requested."
He expressed his conclusion in these terms at page 9:
"I have reviewed and considered the arguments on both sides. To my mind I see no "unjust" consequence here. The defence, if there is one, amounts to challenging the reliability of a very recent confession. Evidence on both sides on that issue is available. No long list of witnesses for an alibi or to assist a self defence contention is suggested. Thus I must reject any bar based on "unjust" relating to prejudice in mounting a defence at trial. As to oppression I find no bar. The delay is lengthy but the allegation of the gravest. If Stephen Hutton built his life back in the UK from 1986 2007/8 on a secure feeling he had no fear of the extradition process this was his belief alone. No action by Australian or British authorities could have led to any such belief. Given the obvious need to weigh the seriousness of the allegation in the balance against Stephen Hutton's understandable reluctance to face removal and trial for murder, compassion for him cannot, in my judgment applying the Kakis test, amount to oppression."
"In December 1990 the Australian Federal Police officer stationed at the Australian High Commission in London received information from the Administrator of St Luke's Hospital regarding Mr Hutton. Mr Hutton had indicated that he was prepared to make a statement concerning the circumstances of the death of Ms Sandra White. However, when Mr Hutton was interviewed by Detective Chief Inspector Wright of New Scotland Yard on 21 December 1990, Mr Hutton declined to answer any questions."
She explained that in Victoria, prosecutions are commenced if it is considered that there is a reasonable prospect of conviction. In this case, whilst there was evidence that there had been some argument and unrest between the appellant and Ms White, and whilst investigators suspected that the appellant may have been involved, there was not sufficient evidence to file a charge of murder against him. Following his refusal to participate in a formal interview in 1990 there remained, at that time, no further evidence which might support a prosecution.
"'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there are is room for overlapping and between them they would cover all cases where to return him would not be fair."
He went on at 783C:
"As respects delay which is not brought about by acts of the accused himself, however, the question of where responsibility lies for the delay is not generally relevant. What matters is not so much the cause of such delay as its effect; or, rather the effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude."
He added at 784H:
"The gravity of the offence is relevant to whether changes in the circumstances of the accused which have occurred during the relevant period are such as would render his return to stand his trial oppressive; but it is not, in my view, a matter which should affect the court's decision under section 8 (3) (b) where the relevant event which happened in that period is one which involves the risk of prejudice to the accused in the conduct of the trial itself ..."
(i) whether a fair trial of the accused would be impossible, and
(ii)) whether the continuation of the proceedings would be unjustifiably vexatious and oppressive.
Furthermore the appellant, if extradited, will be afforded the protection of the Charter of Human Rights and Responsibilities Act 2006 (Victoria) which provides for the right to a fair trial and the right to a trial without unreasonable delay.
The appellant's mental health the present position
"Even though he would be allowed to continue his medication, it is very likely that his condition will deteriorate as a result of being deprived of the emotional support he is receiving in Farnborough and also as a result of being exposed to stressors. It is very well known that patients with schizophrenia are likely to relapse if exposed to environments with highly expressed emotions."
The position is in our judgment comparable to a person with a serious heart condition who would be liable to suffer a heart attack if exposed to physical exertion.
"In the context of extradition proceedings, it is for the courts of the requesting state to determine those issues. They are questions of fact relevant to the issues of fitness of trial, which are for the courts of the requesting state to determine. Such a determination is not for the executive or for doctors, but are matters appropriate for judicial determination, just as other questions of fact are for the courts of the requesting state."
Then he added the proviso that there had, of course, to be proper procedures that were fair to the accused to determine such an issue. He went on to point out that if the evidence was the claimant was indisputably unfit to stand trial then it would be oppressive to return him. In the event the Secretary of State had been entitled to conclude that there were real issues as to the claimant's fitness to stand trial and as to his future treatment.
"The object of extradition is to return a person who is properly accused or has been convicted of an extradition crime in a foreign country to face trial or to serve his sentence there. This includes the determination of whether he is fit to be tried, an issue which, under the criminal justice systems of both this country and New York, is decided by the courts, and not by members of the executive or the medical profession. The extradition process is only available for return to friendly foreign states with whom this country has entered into either a multi or a bilateral treaty obligation involving mutually agreed and reciprocal commitments (....)"
"Of course, what actually happens in the country of trial over medical treatment, bail, the way in which fitness to plead is assessed, the way in which the ill may be tried are all factors relevant to answering the question posed within section 91. The closer the courts of that country are to applying the same test in the same way as the UK courts, the more potent is the argument that return and trial would not be unjust or oppressive because of the protections there available."
The Australian courts operate a system which is as close as any to the courts in this country and it has not been suggested that the appellant's trial will be other than fair.
Abuse of process
Trial in England