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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Melia v Dublin High Court Ireland [2013] EWHC 708 (Admin) (07 March 2013)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2013/708.html
Cite as: [2013] EWHC 708 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL |
||
B e f o r e :
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| MELIA | Claimant | |
| v | ||
| DUBLIN HIGH COURT IRELAND | Defendant |
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Mr A Harbinson (instructed by CPS) appeared on behalf of the Defendant
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- MR JUSTICE COLLINS: There is an application in this case for an adjournment to enable the appellant to obtain an up-to-date medical report from the Doctor who has been dealing with him for some time. The Doctor in question, Professor Brown, produced a report dated 28 September 2012 which was used before the District Judge in order to seek to persuade him that it would be oppressive to require the appellant to be returned to Ireland to face charges of possession of drugs with intent to supply. In fact, the situation was that he was tried in Ireland and convicted, but his conviction was quashed on appeal on the basis that the trial judge had apparently failed to deal with matters raised properly. But the Court of Appeal in Ireland directed that there should be a retrial.
- The appellant decided that he would leave Ireland and did so and came to this country. I am told that subsequently he went to Amsterdam in order to deal with the situation of someone who had died and to visit the family, but he was arrested when he arrived back in this country. He has been on bail pending the question as to whether he should go back to Ireland to face the retrial.
- It is submitted that, in those circumstances, albeit it cannot be said other than that he should be treated as a fugitive from justice it is a slightly different situation from the usual one in which that arises. I am afraid that I do not think that there is a great deal of merit in that particular contention.
- In fact, so far as the dates are concerned, the offences themselves, if committed, were committed in August 2004. In February 2006, the appellant was convicted at the Dublin circuit court and was sentenced to 15 years' imprisonment. As I have indicated, his appeal was allowed in October 2006 and he was granted bail pending retrial. A trial date of January 2008 was obtained for the retrial and that was amended to March 2008, but the matter was then adjourned because, apparently, some witness was ill. The appellant was still present. A new trial date was fixed for November 2008. The defence applied in November 2008 for that date trial to be vacated because the appellant was said to be too ill to travel and the adjournment was, it seems, granted.
- On 13 February 2009, the case was listed for mention and it was then noted that the appellant had received in-patient treatment in February 2009 at a hospital in London and there were further adjournments. Finally, in December 2009, when a bench warrant was issued because the appellant was not present. In due course, The appellant not being present and being in this country, the arrest warrant was issued in March of 2010.
- The medical condition from which the appellant who is some 59 years old was suffering was severe chronic obstructive pulmonary disease complicated by emphysema and what is described as mild bronchiectasis, largely as a result of smoking. He also has a frozen left shoulder causing pain and limited movement. Unfortunately, he also was addicted to drugs and he has what is described as a chronic hepatitis C infection, albeit that apparently is at the moment, or at least was in September, symptomless.
- His disabilities mean that he needs assistance in everyday living and that is provided by his partner and his children. The report from Professor Brown in dealing with the likely consequences of extradition stated that forced extradition would cause him severe psycho-social distress and remove him from his carers and present medical support and this was highly likely to cause a period of repeated exacerbations and would have a deleterious effect on his health. Any deterioration in his lung function would obviously be very dangerous. The Professor's view was that his extradition would produce a significant chance of causing deterioration in his health with possible fatal consequences.
- The very detailed information which was obtained from the Irish prosecuting authorities refers to the medical reports and the evidence submitted before the Irish court in the number of applications for adjournments of the retrial. It was the view of the doctor examining him in 2008 that he was advised not to travel on health grounds and was not, particularly, to take a cruise, which he was intending to take. That view, again repeated by another Doctor in November 2008, was that it would be extremely dangerous for him to travel in his current condition and he would not be able to fly in an aeroplane with such a level of oxygen. However, he did travel in an aeroplane as we know in his travels to and from Amsterdam. That was in 2012.
- Professor Brown was not aware of that but that was put to him and he indicated in an e-mail which was before the District Judge of 9 January that his opinion was not altered by the knowledge that he had taken that flight and that he still believed there was a significant chance for a major deterioration that could be life threatening. As I say, there is an application for an up-to-date report on the basis that the views of Professor Brown given in September of last year may be regarded as out of date. However, the e-mail of 9 January is recent and I am quite prepared to rely on that. What he says is that he believes that there is a significant chance of a major deterioration at some point that could be life threatening.
- The point that is being made essentially is that it is the mere fact of removal which could, and it is suggested, would be likely to give rise to the life threatening situation. It is clear - and it is not argued by Miss Hill to the contrary - that the Irish authorities have in place and would be able to provide all necessary medical care. But that is said to be insufficient, particularly as, if convicted, the likely result would be a substantial prison sentence as indeed was clear from the sentence that was imposed on the original trial, one of 15 years' imprisonment.
- No doubt that would be something which the appellant would want if possible to avoid and one can well understand that there is a real concern, so far as he is concerned, that his situation will deteriorate; he will not have the care that his partner gives him at the moment, and that there will be a real deterioration in his health.
- However, that is something which is a matter for the Irish authorities to deal with. All that I am concerned with as far as this appeal is concerned is whether the act of removal in itself would be such as to raise a real likelihood that his condition would deteriorate to such an extent as would be a threat to his life.
- Miss Hill recognises and accepts as I understand it, and Mr Harbinson agrees, that the approach of the court must be somewhat similar to the approach that is appropriate in dealing with suicide cases because that is the real concern that the deterioration in health will be, it is said, life threatening. The Irish authorities recognise and indeed the English authorities will also have to take all steps that are reasonable to ensure that the stress involved in the removal is as low as possible and that all steps are taken to ensure that the best possible care is taken of the appellant in the course of removal. Thus, it may be that a boat across to Ireland rather than a plane is the appropriate means. Indeed, from the report given by the Irish Doctor in 2008 that may well be the case because there was a real concern then, albeit the appellant took little notice of it, that it was dangerous for him to fly. One knows that it is not a great distance to cross the Irish sea to Dublin.
- In addition, his partner will be able to travel with him and to take care of him during the course of the travel. I appreciate that it is impossible to avoid the problem that he faces - if convicted - serious result. However, he remained in Ireland for a substantial time knowing that a retrial was going to take place but when the ability to adjourn that finally came to an end it seems that he decided that he would leave Ireland and try to avoid the result of his criminality if that is proved against him.
- In all the circumstances, having regard to the approach that this court has adopted to cases such as this, I am not persuaded, despite Professor Brown's views, that this is a case where it could properly be said that it would be so oppressive to remove him as to constitute a bar to that removal. As I say, all reasonable steps must be taken to ensure that proper care is taken of him in the course of his removal and that applies both to the authorities in this country and to the receiving authorities when he reaches Dublin. I am sure that, having seen the response from the Irish authorities, that that will be done.
- In those circumstances it seems to me that nothing is to be gained from allowing any further report. Accordingly, the application for an adjournment is refused and for the reasons that I have given, this appeal is dismissed.
- MISS HILL: My Lord, two things: firstly, just for the accuracy of the record, it is not right that Mr Melia came to the United Kingdom via Amsterdam. He came from Ireland to England and then last year took a flight to Amsterdam and was arrested on his return.
- MR JUSTICE COLLINS: So there were two journeys: one from Ireland to here and then from here to Amsterdam and back.
- MISS HILL: Yes.
- MR JUSTICE COLLINS: I will correct that.
- MISS HILL: Thank you very much. Secondly, may legal aid be assessed in the usual way?
- MR JUSTICE COLLINS: Yes of course, you can have the usual order.
- MISS HILL: Thank you.