QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
THE HONOURABLE MR JUSTICE FOSKETT
| THE QUEEN ON THE APPLICATION OF ELIZABETH PROSSER
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Hugo Keith QC (instructed by TSol) for the Defendant
Hearing dates: 23rd March 2010
Crown Copyright ©
This is the judgment of the Court
Mrs Prosser's medical and psychiatric problems
"17. Elizabeth Prosser suffers from a recurrent depressive disorder of varying severity and characterised by episodes of low mood, loss of self-esteem, poor appetite, poor concentration, disturbed sleep pattern and negative thoughts about the future. She also has thoughts of suicide and in the past has attempted it … At interview I felt at worst she was mildly depressed although this diagnosis was complicated by the fact that she had deteriorating physical health and was involved in the ongoing legal proceedings which she found very traumatising.
18. Elizabeth Prosser in my opinion shows features of post traumatic stress disorder in that she suffers from recurrent nightmares, intrusive distressing thoughts and intrusive distressing daytime imagery (flashbacks) on a recurrent basis and of variable frequency…
19. Given that Elizabeth Prosser in my opinion suffers from recurrent depression and possibly post traumatic stress disorder, combined with her failing physical health, means in my opinion that she is highly likely to suffer from further episodes of major depression. I would have serious concern for her mental health were she to be extradited and stand trial as I believe that this would be highly likely to result in a serious deterioration in her condition. She would certainly present a high risk of suicide given her diagnosis were this to occur.
20. Were she to be extradited then it would be imperative that those involved were fully aware of the risks and that these should be managed appropriately."
"5.4.1 In my opinion Mrs Prosser suffers from a serious mental and physical condition; she is at serious risk that a deterioration in her external situation will tip her current fragile balance in a disastrous way, towards a serious deterioration in her physical condition as well as towards suicide. She has two important factors that keep her going at the moment, a devoted and caring husband, and the renewed contact with her daughter with the hope to be reunited with her. But her limited well-being depends almost entirely on these factors.
5.4.2 A definitive and irreversible decision to extradite her to the United States would, in my view, be experienced by her as a complete catastrophe. It would mean that the only things that provide her with hope and meaning in her life now, would be lost and she would see nothing to live for anymore. I take her determination to kill herself, should this situation arise, absolutely seriously I am convinced that she would do everything in her power to prevent an extradition by ending her life.
5.4.3 If the extradition was managed in a way that Mrs Prosser would not be able to end her life and to prevent extradition, it is my opinion that her condition would deteriorate very significantly. Firstly, she would become even more severely depressed than she is now. Second, the severe emotional impact of the loss of significant relationships and meaning in her life, would have a serious impact on her already severe physical condition and would exacerbate it further.
5.4.4 The assurances given by the authorities in the United States are in my view completely inadequate … .
5.4.5 On the other hand, if the decision was made to stop the extradition process and give her the definite right to remain in this country, her mental state would, in my opinion, clearly improve. It is also likely that this would have a beneficial effect on her physical condition and at least prevent further exacerbations; it may even lead to a stabilisation, due to the effect of her improved psychosocial situation."
"It is clear that great weight should be accorded to the legitimate aim of honouring extradition treaties made with other states. Thus, although it is wrong to apply an exceptionality test, in an extradition case there will have to be striking and unusual facts to lead to the conclusion that it is disproportionate to interfere with an extraditee's Article 8 rights."
Lord Phillips also referred to Tajik v Government of the United States of America  EWHC 666 (Admin), where Richards LJ recognised the practical reality that Article 8 will only rarely provide a ground for refusing extradition; and to Wellington which underlines the weight that the desirability of extradition carries as an essential element in combating public disorder and crime.
"It is of critical importance in the prevention of disorder and crime that those reasonably suspected of crime are prosecuted and, if found guilty, duly sentenced. Extradition is part of the process for ensuring that this occurs, on a basis of international reciprocity. It is instructive to consider the approach of the Convention in dealing with criminals or suspected criminals in the domestic context. Article 5 includes in the exceptions to the right to liberty (i) the arrest of a suspect, (ii) his detention, where necessary, pending trial and (iii) his detention while serving his sentence if convicted. Such detention will necessarily interfere drastically with family and private life. In theory a question of proportionality could arise under Article 8(2). In practice it is only in the most exceptional circumstances that a defendant would consider even asserting his Article 8 rights by way of challenge to remand in custody or imprisonment: see R (P) v Secretary of State of the Home Department  1 WLR 2002, para 79, for discussion of such circumstances. Normally it is treated as axiomatic that the interference with Article 8 rights consequent upon detention is proportionate.
There is an analogy between the coercion involved in extradition and the coercion involved in remanding in custody a prisoner reasonably suspected of wishing to abscond. In either case the cohersion is necessary to ensure that the suspect stands his trial. Each is likely to involve a serious interference with Article 8 rights. The dislocation of family life that will frequently follow extradition will not necessarily be more significant, or even as significant, as the dislocation of family life of the defendant who is remanded in custody. It seems to me that, until recently, it has been treated as axiomatic that the dislocation to family life that normally follows extradition as a matter of course is proportionate. This perhaps explains why we have been referred to no reported case, whether in Strasbourg or in this jurisdiction, where extradition has been refused because of the interference that it would cause to family life."
He added at paragraph 55 that the interference with human rights will have to be extremely serious if the public interest is to be outweighed; and at paragraph 56 that the reality is that only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves.
"In a case such as this it is the exception that proves the rule. One has to consider the effect on the public interest in the prevention of crime if any defendant with family ties and dependencies such as those which bind Mr Norris and his wife was thereby rendered immune from being extradited to be tried for serious wrongdoing. The answer is that the public interest would be seriously damaged. It is for this reason that only the gravest effects of interference with family life will be capable of rendering extradition disproportionate to the public interest that it serves. This is not such a case. Unhappily the delay that has been caused by Mr Norris' efforts to avoid extradition to the United States has increased the severity of the consequences of that extradition for his family life. But those consequences do not undo the justification that exists for that interference."