Neutral Citation Number: [2009] EWHC 564 (Admin)
Case No: C0/8319/2008
IN THE HIGH COURT OF JUSTICE
QEEEN’S BENCH DIVISION
DIVISIONAL COURT
FROM THE CITY OF WESTMINSTER MAGISTRATES COURT
District Judge Purdy
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20/03/2009

Before:

LORD JUSTICE SCOTT BAKER
-and-
MR JUSTICE SILBER

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Between:

	STEPHEN ALBERT HUTTON	Appellant	
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	THE GOVERNMENT OF AUSTRALIA	Respondent	
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(Transcript of the Handed Down Judgment of
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John Jones (instructed by PPG Criminal Law) for the Appellant
Melanie Cumberland (instructed by Crown Prosecution Service) for the Respondent

Hearing date: 4 February 2009
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Judgment
Lord Justice Scott Baker:
This is the judgment of the court.
1.	The Australian Government seeks the extradition of Stephen Albert Hutton for the murder of his former partner Sandra Teresa White in August 1985.  The central issue is whether it would be unjust or oppressive to extradite him in the light of (i) the passage of time and (ii) Mr Hutton’s mental health.  He suffers, and indeed has suffered for many years, from paranoid schizophrenia.
2.	This is an appeal from two decisions of District Judge Purdy in the City of Westminster Magistrates Court. The first was on 8 February 2008. The district judge decided under s.91 of the Extradition Act 2003 (“the 2003 Act”) that it would not be unjust or oppressive to extradite the appellant to the State of Victoria in Australia in the light of his mental health. The second was on 11 July 2008 when he decided:
(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
3.	The relevant facts are that the appellant, who is a British citizen aged 55, has a long history of mental illness. He has suffered for many years from paranoid schizophrenia with hospital admissions both in Australia and in the United Kingdom. He has on occasion been compulsorily detained in the United Kingdom.
4.	The Australian authorities seek his extradition to face trial for murder by strangling Sandra Teresa White on the night of 11/12 August 1985 i.e. over 23 years ago. Ms White's burnt remains were discovered on 12 August 1985. The appellant was suspected of the crime at the time and spoken to under caution on 16 August and 25 September 1985, but he declined to be formally interviewed.
5.	On 25 October 1986 he left Brisbane on a Thai Airlines flight for Thailand and he has not returned to Australia since. He was perfectly entitled to leave Australia and, absent any order for extradition, is under no obligation to return.  An inquest in Australia recorded the cause of death as unresolved.
6.	In 1990, following a road accident, the appellant was sectioned and admitted to St Luke's Psychiatric Hospital London. Whilst detained he is said to have confessed to killing Ms White. This information was passed first to the United Kingdom police and then the Australian police. On 21 December 1991 he declined to answer questions to the British police, and the Australian police filed the case as unresolved.  However, Ms White’s son, Tim White, persuaded the Australian police to reopen the case in February 2005.
7.	Following a request to this country for mutual legal assistance the appellant was interviewed on 17/18 May 2007 under caution at a Hampshire police station. The admissions he made in these interviews resulted, so it is said, in Victoria's law enforcement authority having for the first time sufficient evidence to establish a prima facie case against him, and they accordingly commenced extradition proceedings.
Sections 82 and 91 of the 2003 Act
8.	Sections 82 and 91 of the 2003 Act lie at the heart of this appeal.
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.”
9.	While the judge dealt with the s.91 issue as a discrete issue on 8 February 2008, he made it clear that he was aware that s.91 remained applicable throughout the whole of the extradition hearing. However, the appellant's condition for practical purposes remained unchanged in July 2008. At both hearings he was in remission and stable.  Both sections 82 and 91 focus on whether it would be unjust or oppressive to extradite the accused person but for different reasons, passage of time in the case of s.82 and physical or mental condition in the case of s.91.  In practice, however, in the present case the reasons are interlinked.
10.	The appellant's case before the district judge was, in summary, that if extradited there was a 60-65% chance his mental condition would relapse and that this risk made it unjust or oppressive to extradite him to face a trial after so many years. The respondent’s answer was that whether the risk of relapse became a reality was speculative and, even if it did, Australia was as well equipped as the United Kingdom to provide the necessary psychiatric treatment. Further, Australia has similar safeguards to those in this country relating to fitness to plead and the trial process for ensuring that he has a fair trial.
11.	The district judge heard evidence from Dr Alfonso Ceccherini-Nelli, the lead consultant in general adult psychiatry at Ridgewood Centre, Surrey and Borders Partnership NHS Trust based in Frimley. He is approved for the purposes of s.12 of the Mental Health Act 1983. The district judge said of his evidence:
“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.”
12.	The district judge also had a letter from the appellant's general practitioner, Dr Alison Thomas, who said he continued to be compliant with medication and remained stable and well on his drug regime. The district judge summarised the medical position as follows. The emphasis is that of the district judge:
“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.”
13.	The district judge’s references to Davies and Warren were to Re Davies [1998] COD 1.83 (30 July 1991) and R (Warren) v Secretary of State for the Home Department [2003] EWHC 1177 (Admin). The divisional court held in Davies that it must be assumed that due process in Canada would lead to a finding that the applicant was unfit to plead (as he was at the time of the hearing) and that he would have to remain in Canada for an indeterminate period, a period when it was not possible to know whether he might recover. Importantly, it would not be possible for his wife or child to visit him, save perhaps on very limited occasions. In those circumstances the hardship to him was such that it would be an oppressive to return him. In Warren Hale LJ, as she then was, said at para 42:
“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.”
14.	Hale L.J here touches on what we regard as an important consideration in deciding whether in the particular case extradition would be oppressive. Oppression cannot be considered in isolation from the nature of the offence or offences for which extradition is sought.  The more serious the offence, the greater public interest there is likely to be in extradition taking place.  In Davies the offence was causing death by dangerous driving. In Warren the applicant was a solicitor wanted for numerous offences which could loosely be described as “white collar fraud”.  In the present case it is of great importance that the offence is murder, which is an extremely serious offence and carries a mandatory sentence of life imprisonment in this country. 
15.	The medical evidence has been updated in the form of a report from Dr Ceccherini-Nelli following a lengthy interview with the appellant on 27 November 2008. He reports that the appellant's capacity to stand trial is slightly worse compared to last year. Whereas the appellant was previously fit to plead that is no longer the position. The likelihood of a relapse should he be extradited to Australia has become almost a certainty. His mental state has shifted from ‘moderately severe’ to ‘markedly severe’, the most likely cause being the stress in relation to the extradition proceedings. He speculates on what damage a relapse might do saying it could involve suicide or require admission to hospital.  This evidence has not been challenged by the Respondent and is, for present purposes at least, accepted.
16.	Mr John Jones for the appellant submits the judge erred because:
(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.
17.	The second decision of District Judge Purdy was given on 11 July 2008 when he dealt with the passage of time, abuse of process and human rights.
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.”
18.	Mr Jones complains that the judge set the threshold too high. The appellant had only to show that the passage of time was not due to him (which was not contested). He was free to leave Australia, travel and return to England in 1990. He was not subject any warrant. He did not evade the police. In short, he was fully entitled to rely on the passage of 23 years to establish injustice or oppression.
19.	It is alleged that the judge effectively found that there was no inexcusable delay on the part of the Australian government and that he was in error in so finding. In my view, however, the reality is that there was no purpose in seeking the appellant's extradition unless and until the Australian authorities had enough evidence against him to establish a prima facie case. They only had this following the May 2007 interviews.
20.	The suggestion that blame for the delay attaches to the Australian authorities can be quite shortly dealt with. The information given by Anna Harmer, the Assistant Secretary of the Mutual Assistance and Extradition Branch of the Attorney General’s Department is that:
“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.
21.	It follows that in 1990 there did not exist a prima facie case against the appellant for the offence of murder, being the offence for which his extradition is now sought from the United Kingdom. It was only following the admissions made by him to investigators on 17 May 2007 that the Victorian law enforcement authorities had sufficient evidence to establish a prima facie case against him for this offence and seek his extradition.
22.	Absent any suggestion of bad faith there is, in our judgment, not the slightest reason why Ms Harmer’s statement should not be taken at face value. Mr Jones submits that it was incumbent on the Australian authorities to make other enquiries in 1990 to find out what the appellant may already have said to members of his family and others. But their judgment that without admissions in a formal interview there was no prima facie case seems to us an entirely reasonable one and certainly not one that should attract culpability for the lapse of the next 17 years.
23.	The root authority on passage of time is Kakis v The Government of the Republic of Cyprus [1978] 1WLR 779. That case concerned s.8(3) of the Fugitive Offenders Act 1967 rather than s.82 of the 2003 Act, but the material words are the same. Lord Diplock said at 782H:
“‘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 ...”
24.	Now it seems to us clear that the 23 years that have elapsed since the death of Ms White are not attributable on the evidence to the fault of either the appellant or the Australian authorities; they are simply part of the material facts. Lord Keith of Kinkel, who dissented in the result, concluded that it would not be unjust or oppressive to extradite Mr Kakis and observed that the interests of justice ordinarily require that persons accused of serious crimes should be brought to trial. Lord Scarman, who was in the majority, in a passage relied on by Mr Jones, said at 790C that the oppressiveness in returning Mr Kakis for trial would arise because during the years that had elapsed events had conspired to produce in him a sense of security from prosecution. Like the appellant, Mr Kakis had not led the life of a fugitive from justice but had settled openly in this country.
25.	In La Torre v The Republic of Italy [2007] EWHC 1370 (Admin) Laws LJ regarded the proper approach in this area of the law as relatively straightforward and said there was a danger in straying too far from the simple words of the statute “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.” He said that (para 37) “all the circumstances must be considered in order to judge whether the unjust/oppressive test is met.”  He added that culpable delay (which does not in my view exist in the present case) is often associated with other factors such as the possibility of a false sense of security. He concluded that an overall judgment on the merits was required unshackled by rules with too sharp edges.
26.	We were referred to Woodcock v The Government of New Zealand [2004] 1 WLR 1979 in which Simon Brown LJ, as he then was, said at para 20 that the court’s decision was required not on whether having regard to the passage of time it would be unjust to try the accused but whether it would be unjust to return him (albeit of course return him for trial). This means that the court must have regard to the safeguards that exist in the domestic law of the requesting state to ensure that the accused would not be subjected to an unjust trial there. That court is likely to have a clearer picture of what evidence is available and the issues likely to arise. It was suggested that Woodcock was a sex abuse case and therefore in a special category because delay was less likely to be relevant. For our part, we think the same principles are to be applied whatever the type of case although their application will necessarily depend on the particular facts.
27.	It is to be noted, as Silber J pointed out in argument, that our criminal law, unlike our civil law, provides for no limitation period.
28.	We turn therefore to the application of s.82 to the facts of this case. ‘Unjust’, as Lord Diplock said in Kakis, is directed primarily to the fairness of the trial.  The appellant did not give evidence in the magistrates’ court and it is not clear what his defence, if any, is to the charge of murder. What is clear is that during a series of lengthy interviews in May 2007 he admitted the killing, taking Ms White's body to a caravan, setting fire to it and then driving to Melbourne. He described the circumstances in a good deal of detail. He had also earlier, so it is said, confessed to the murder to a psychiatrist and to his parents. Mr Jones submits that the district judge was wrong to exclude the possibility that the appellant might have an alibi defence which it would now be impossible to substantiate. However, there is no evidential basis for this submission and there has never been the slightest hint that the appellant has an alibi.
29.	Next it is said that the appellant will be prejudiced by the lack of medical records. This again seems to us to be entirely speculative. There is no evidence one way or the other about the extent of the appellant's medical records or how far back they go. Further, it is argued that the appellant's confessions may be the result of delusional memories linked to his illness.  The fact that his mental health has deteriorated will, submits Mr Jones, make it now more difficult to defend himself. The question, it has to be noted once again, is whether it would be unjust by reason of the passage of time to return him to Australia for trial, not whether it would be unjust to try him. In our view the trial court in Victoria will be in the best position to assess all these matters and to assess any prejudice in the context of whatever procedural safeguards are appropriate. There is evidence from the Attorney General’s Department of the Australian Government in the form of a letter of 15 May 2008. It explains that under Victorian law an accused person can apply for a permanent stay of proceedings on the basis that the prosecution would be an abuse of process by reason of delay. It is for the party alleging abuse of process to prove its existence and the two tests applicable are:
(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.
30.	There is no evidence that the appellant has been lulled into a false sense of security or indeed into any sense of security at all. At the first interview on 17 May 2007 he told the officers he guessed what they wanted to see him about. He then proceeded openly to confess to the murder without wishing to have any legal advice, which he was offered at the start of each interview. He was fit to be interviewed and detained and the evidence was he did not require an appropriate adult to be present. He had been stable mentally at this point for the previous 10 years. There was nothing in the interviews to suggest he was confused or delusional or that the officers were not proceeding in good faith.
31.	Thus, it seems to us, the criteria specified by this court in Woodcock are met. It is not for this court to try and second-guess what conclusion the Victorian court might reach when it explores all the facts and arguments. This is an approach that is entirely consistent with that in Beresford v The Government of the Commonwealth of Australia [2005] EWHC 2175 (Admin), see Smith LJ at para 24.
The appellant’s mental health – the present position
32.	As we mentioned earlier we have a recent psychiatric report that was not before the district judge. The position has moved on since the hearing before him and it is necessary to reconsider the case in the light of the up to date medical evidence and ask ourselves whether in the light of that evidence the district judge would have decided the question under s.91(2) differently.
33.	The critical provision in s.91 is whether the appellant's mental condition is such that it would be unjust or oppressive to extradite him. If it is, the judge must either order his discharge or adjourn the extradition hearing until it appears to him it would no longer be unjust or oppressive so to do. The adjournment option was never in play and the question then was as it is now whether the appellant should be discharged or his extradition should go ahead.
34.	 The issue of injustice, it seems to us, is relatively straightforward.  For the reasons we have explained the Victorian court is well able to ensure the appellant has a fair trial and that a trial does not go ahead if he is unfit to stand trial.  It is appropriately equipped to deal with issues that may arise in that regard from the long delay since 1985 and the appellant’s ill health.  The much more difficult issue is whether the appellant’s mental health would make it oppressive to extradite him.  In this regard the recent report of Dr Ceccherini-Nelli must be examined in some detail.  His evidence is uncontradicted; no other psychiatric evidence was adduced and nor was he cross-examined.
35.	Although it is necessary to consider the position in the light of the most recent report, we should point that in our judgment the judge was in error in concentrating solely on the appellant's current condition to the exclusion of the then assessed 60-65% risk of relapse in the event of removal from his existing treatment regime. It seems to us that with a condition like paranoid schizophrenia where the patient's condition is liable to relapse and fluctuate it is necessary to pay regard to what is likely to happen to the appellant's health in the event that he is extradited. As Dr Ceccereni-Nelli put it in his October 2007 report:
“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.
36.	Before considering in detail the up to date evidence, we turn to the authorities on s.91. As Smith LJ stated in Boudhiba v Central Examining Court No5 of the National Court of Justice, Madrid [2007] 1 WLR 124, 144 para 65, the court should keep its eye firmly on the statutory question. “The question is not whether the defendant is suffering from a psychiatric disorder with or without the additional disadvantage of low intelligence; it is whether it would be unjust or oppressive to extradite him”.
37.	In Warren, on which the district judge relied, and to which we have already referred at paras 14 and 15, the claimant was suffering from a severe psychiatric illness. He relied on medical practitioners in the United Kingdom who agreed he was not fit to stand trial, but the divisional court rejected the submission that he should not be extradited to the United States to be tried on charges relating to share transactions. Moses J, as he then was, said at para 26 that the starting point was the proposition that fitness to plead was part of the trial process and should be decided by the court of trial. He said at para 27:
“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.
38.	Hale LJ in a concurring judgment said at para 40:
“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 (....)”
39.	In The United States v Tollman and Tollman [2008] EWHC 184 (Admin) Moses LJ giving the judgment of the court said at para 163:
“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.
40.	In Tajik v The Government of the United States [2008] EWHC 666 (Admin) Richards LJ, having considered the earlier authorities, said that whilst a judgment has to be made on the facts of each case it was clear that a high threshold has to be reached to satisfy the court that the requested person's physical or mental condition is such that it would be unjust or oppressive to extradite him.
41.	The evidence establishes that the medication taken by the appellant will be available to him in the event of extradition, whether he is in custody pending trial or following conviction. Further medication or treatment will be available on assessment. Thus, if his condition relapses, he will be adequately assessed and treated just as he would in this country. Likewise the issue of fitness to stand trial will be no less fairly and comprehensively considered in Victoria than it would be in this country.
42.	Against the background of the authorities, we turn now to consider the recent medical evidence. As we have said, Dr Ceccherini-Nelli assessed the appellant’s capacity to stand trial as “slightly worse compared to last year.” This assessment was based on the results of the Competency to Stand Trial Assessment instrument (“CAI”) which he sets out in appendix 1 to his report and how they compared with the results of a similar test 13 months earlier. Of the 13 CAI yardsticks some are worse than before, but others are better. We note that the CAI is “not intended to predict a defendant's performance in a future trial because with the passage of time and variations in clinical status, even from day to day, a given defendant will vary in scores obtained.” The CAI is used by American forensic professionals in order to “standardise objectify and quantify relevant criteria for competency to stand trial.” Dr Ceccerini-Nelli points out that criteria to decide competency to stand trial adopted in the USA and in England are largely overlapping.  
43.	In respect of yardstick 10 – the capacity to disclose to his attorney available pertinent facts surrounding the offence – the doctor had previously left this item without any score noting that his account, at least on the surface, appeared consistent rational and adequately detailed.  On the recent occasion he recorded a score of 2 (marked lack of capacity) in a range of 2 to 5 because the appellant told him: “Feels like my memory has faded…..I am not dwelling on it. It is all rather confused.  It is not clear in my mind any longer.”  In comparing this result with the earlier test the doctor had recorded 2 against the earlier score of ?(5). This difference largely accounts for the reduced overall score in the November 2008 test.  The score on this yardstick does however seem to me to depend to a significant extent upon the reliability of what the appellant told the doctor.
44.	Dr Ceccherini-Nelli says that the recent deterioration in the appellant’s mental state is probably due to the stress of the court proceedings, that extradition to Australia would represent a much more stressful event and that this would almost certainly cause a further deterioration of his condition.  He then speculates – and it seems to me that this can only be speculation – on the damage that a relapse might do.  He makes the point, that we accept, that essentially all symptoms of schizophrenia are likely to get worse during a relapse.  What the doctor did not say in his recent report was anything to qualify what he had earlier said in evidence about the prospect of recovery in the event of relapse.  In evidence he had spoken of 3 – 12 months to “obtain adequate remission.”  The position realistically appears to be this.  It will be stressful for the appellant to be extradited and there is a high probability his condition will deteriorate if he is.  However, the extent of his deterioration is uncertain, as is the extent and speed of any recovery.
45.	In our judgment it cannot at this stage be predicted with certainty that the appellant will be unfit to stand trial if extradited to Australia, or if he is unfit for how long he will remain so.  The issue of his fitness for trial in a matter that, in accordance with the authorities we have cited, should be left to be decided by the court of trial.
46.	We return to the question whether it would be oppressive to extradite the appellant.  Whilst it is true that there is some prospect he will not be fit for trial in Australia in the foreseeable future, the issue of fitness for trial is, as we have said, a matter for the Australian court.  There is no doubt that extraditing him will place additional stress on him and is likely to cause a further deterioration in his mental health, at least in the short term.  But on the other side of the scales the offence for which he is sought is murder.  Lord Diplock in Kakis at P784 H was in no doubt that the gravity of the offence was a relevant factor when considering oppression in lapse of time cases and in my view it is no less relevant when considering oppression in the context of mental health. 
Abuse of process
47.	The appellant's arguments on abuse of process can be dealt with quite shortly. The argument in essence is that the confessions made in the interviews of 17 and 18 May 2007, which constituted the only real evidence against him, were improperly obtained in that the appropriate Mutual Legal Assistance (MLA) procedures were not followed. An Australian police officer simply sat in an adjacent room and listened in when the interviews were being conducted. Given his schizophrenic state, the appellant could not possibly have appreciated the significance of the fact that an Australian police officer was be listening in to his interview. In the circumstances, so it is argued, the district judge was wrong effectively to conclude that the Australian authorities interviewed the appellant pursuant to a MLA request. The Australian authorities never expressly claimed that to be the case and the district judge erred in not requiring some proof, or at least an assertion on the part of the requesting state, that they had used MLA to interview the appellant.
48.	By unlawfully monitoring the interviews in order to circumvent the proper procedures in place for MLA it is said that they were by-passing the proper extradition procedures in a manner analogous to Bozano v France (1986) 9 EHRR 297. The facts of that case were, however, far removed from those of the present case.
49.	We accept the submission of Ms Cumberland and agree with the district judge that this argument is misconceived. There is no evidence of abuse of process. The real complaint, if there is one, is a challenge to the admissibility of the confessions, a matter with which the Australian court is well equipped to deal.
50.	The other arm of the appellant's abuse argument is Mr Jones’ claim for disclosure of the Australian authorities’ file on the appellant so that the court can assess for itself the validity of the Australian government’s assertion that it did not have a prima facie case until 2007. It would in our judgment be quite wrong to question the Australian government's assertion in the absence of any evidence of bad faith and there is not a shred of such evidence.
Trial in England
51.	One issue raised by the appellant was that as a British citizen he could, by virtue of s.9 of the Offences against the Person Act 1861 be tried for the murder in this country. Other than that he is a British citizen the offence has no connection whatsoever with this country. Mr Jones referred us to the observations of Lord Hoffmann at paras 25 and 26 in R (Wellington) v The Secretary of State for the Home Department [2008] UKHL 72 in the context of Article 3 of the ECHR. We were also referred to R (Syed Talha Ashan) v Director of Public Prosecutions where the point was made that interference with article 8 rights could be avoided if it was possible for the individual to be prosecuted in the United Kingdom in respect of the conduct alleged against him.
52.	Although it may be theoretically possible to prosecute the appellant in England for the murder of Ms White none of the provisions of the ECHR is engaged in the present case and we do not regard prosecution in the United Kingdom as either realistic or relevant to the issues before the court which are passage of time under s.82 and mental condition under s.91.
Human rights
53.	The district judge was required by s.87 of the 2003 Act to decide whether the appellant’s extradition would be compatible with his Conventions rights within the meaning of the Human Rights Act 1998.  In our judgment he was correct to decide that question in the affirmative.  Article 3 adds nothing to the issue of oppression in this case. Anything that would have been possibly relevant under Article 3 will fall to have been taken into account in deciding whether it would be oppressive to extradite the appellant within the meaning of sections 82 and 91. We do not accept that there is a real risk that the appellant's Article 3 rights will be breached in the event of extradition. Whatever happens to his mental condition, and no one can predict the course of his illness with any certainty, the unchallenged evidence is that all appropriate medical treatment is available (a) to minimise the risk of relapse and (b) to deal with one if it occurs. In any event, wherever he is the risk of relapse exists. The district judge found no real risk of a breach of Article 3 and this finding is unassailable.
Conclusion
54.	In summary the position is this. The issue of whether it would be unjust or oppressive to extradite the appellant falls for consideration twice, first under s.82 in relation to the passage of time and then under s.91 in relation to the appellant's mental health. In practice the two are interrelated. If he is to be tried he is to be tried for a murder that occurred over 23 years ago. Murder is one of the gravest offences in the criminal calendar. There is a very strong public interest (an interest shared by the deceased's family) in a trial taking place even after this length of time. Whilst this public interest could not tip the scales if it were otherwise unjust to extradite the appellant, “unjust” as Lord Diplock pointed out in Kakis being largely directed to the trial process, we would regard the gravity of the offence as an important countervailing factor in deciding whether it would be oppressive to extradite him. It is true that there is a risk – indeed it was described to be almost a certainty – that extradition will cause some deterioration in the appellant’s mental health, but the extent and permanence of that deterioration are matters of speculation. The Australian authorities are as well-equipped as those in this country to meet his needs and we do not think it would be unjust or oppressive either due to the passage of time or the appellant's mental state or a combination of the two to extradite him. In the end the critical features in this case are the gravity of the alleged offence, the appellant’s admissions, the fact that he will have a fair trial in Victoria and that his paranoid schizophrenia will be treated as appropriately in Australia as in this country.  Accordingly the appeal is dismissed.