QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE MITTING
| THE QUEEN ON THE APPLICATION OF HAROON ASWAT
|- and -
|SECRETARY OF STATE FOR HOME DEPARTMENT
THE UNITED STATES OF AMERICA
(instructed by BIRNBERG PEIRCE AND PARTNERS) for the Claimant
MR JAMES EADIE QC AND MR BEN WATSON
(instructed by THE TREASURY SOLICITOR)
for the Defendant
MISS CLAIR DOBBIN (instructed by THE CROWN PROSECUTION SERVICE) for the Interested Party
Hearing dates: 1st and 2nd April 2014
Crown Copyright ©
MR JUSTICE MITTING :
His detention for extradition in 2005
His admission to Broadmoor in March 2008
The proceedings in Strasbourg: 2007-2013
"For the second applicant, who is no longer at HMP Long Lartin but is being cared for at Broadmoor Hospital, the court does not doubt that the United States Authorities would allow transfer to an equivalent high security hospital should that need arise after extradition".
"1. In determining whether detention at ADX Florence would be compatible with Article 3, what relevance, if any, is to be attached to the fact that Mr. Aswat's mental health has necessitated his transfer from HMP Long Lartin to Broadmoor Hospital?
2. Prior to Mr. Aswat's surrender to the United States, would details of his mental health condition be provided to the United States' authorities?
3. After surrender, what steps would be taken by the United States' authorities:
(i) to assess whether Mr. Aswat would be fit to stand trial; and
(ii) to ensure that, in the event of conviction, his mental health condition would properly be taken into account in determining where he would be detained?"
With the assistance of a detailed letter dated 8 May 2012 from the United States Government, the United Kingdom responded in time.
"There would be a violation of Article 3 of the Convention in the event of the applicant's extradition solely on account of the current severity of his mental condition."
and decided to continue its Rule 39 indication until such time as the judgment became final. Its reasons for doing so are set out in paragraphs 51, 52 and 55 57 of its judgment:
"51. The medical evidence in the present case indicates that the applicant is suffering from an enduring mental disorder, namely paranoid schizophrenia, which has been characterised by auditiory hallucination, thought disorder, delusions of reference, grandeur and guarded and suspicious behaviour. The last forensic psychiatrist report submitted to the Court indicated that his condition was well controlled on anti-psychotic medication and that participation in occupational and vocational activities at Broadmoor, including attendance at the mosque, had helped prevent any significant deterioration in his mood. However, the applicant had only limited insight into his illness and would be likely to relapse if he ceased taking his medication. In giving evidence to the First Tier Tribunal (Health, Education and Social Care Chamber) Mental Health, a consultant forensic psychiatrist stated that if he were to be returned to prison, his compliance with medication would be uncertain, particularly in the medium to long term, and this would likely lead to a relapse. The Tribunal subsequently concluded that detention and treatment in a medical hospital were necessary for the applicant's own health and safety.
52 Whether or not the applicant's extradition to the United States would breach art.3 of the Convention very much depends upon the conditions in which he would be detained and the medical services that would be made available to him there. However, any assessment of those detention conditions is hindered by the fact that it cannot be said with any certainty in which detention facility or facilities the applicant would be housed, either before or after trial. This is particularly the case with respect to the pre-trial period, about which very little information has been provided. The US Department of Justice has given no indication of where the applicant would or could be held, although it has advised that if he consents to his medical records being provided to the US authorities on extradition, those authorities would be able to take his mental health concerns into account in deciding where to house him while on remand. It is also unclear how long the applicant might expect to remain on remand pending trial. If extradited the applicant's representatives would be entitled to contend that he was not fit to stand trial in the United States on account of his mental disorder. A district judge would then have to assess his competency and, if the applicant was found to be competent, he could appeal to the Court of Appeals. There is no information before the Court concerning the potential length of a competency assessment or any subsequent appeals procedure, but it is reasonable to assume that the length of pre-trial detention might be prolonged if the applicant were to assert these rights. Finally, the Court notes with concern the complete absence of any information about the consequences for the applicant if the district judge were to find that he was not fit to stand trial.
55. The Court therefore accepts that if convicted the applicant would have access to medical facilities and, more importantly, mental health services, regardless of which institution he was detained in. Indeed, it recalls that in Ahmad it was not argued that psychiatric care in the US federal prisons was substantially different from that which was available at HMP Long Lartin. However, the mental disorder suffered by the present applicant was of sufficient severity to necessitate his transfer from HMP Long Lartin to a high-security psychiatric hospital and the medical evidence, which was accepted by the First Tier Tribunal, clearly indicated that it continued to be appropriate for him to remain there "for his own heath and safety".
56. The question in the present case is not whether the applicant can be returned to HMP Long Lartin but whether he can be extradited to the United States of America, a country where he has no ties and where he will face an uncertain future in an as-yet-undetermined institution. Moreover, if there is no guarantee that, if tried and convicted, he would not be detained in ADX Florence, where he would be exposed to a "highly restrictive" regime with long periods of social isolation. In this regard, the Court notes that the applicant's case can be distinguished from that of Mustafa (Abu Hamza). While no "diplomatic assurances" were given that Abu Hamza would not be detained in ADX Florence, the High Court found on the evidence before it that his medical condition was such that, at most, he would only spend a short period of time there. The Court notes, however, that there is no evidence to indicate the length of time that the present applicant would spend in ADX Florence.
57. Whild the Court in Ahmad did not accept that the conditions in ADX Florence would reach the art.3 threshold for persons in good health or with less serous mental health problems, the applicant's case can be distinguished on account of the severity of his mental condition. The applicant's case can also be distinguished from that of Bensaid v. United Kingdom as he is facing not expulsion but extradition to a country where he has no ties, where he will be detained and where he will not have the support of family and friends. Therefore, in the light of the current medical evidence, the Court finds that there is a real risk that the applicant's extradition to a different country and to a different and potentially more hostile, prison environment would result in a significant deterioration in his mental and physical health and that such a detention would be capable of reaching the art.3 threshold."
The decision of the Secretary of State in 2013 and the further proceedings
i) The Secretary of State was obliged to, but deliberately did not, afford to the claimant an opportunity to make representations about her proposed decision before she made it.
ii) The further information provided by the U.S. Department of Justice added nothing material to the information which the Strasbourg Court had, so that it is impermissible to depart from its conclusion that there would be a violation of Article 3 if the claimant was now extradited to the United States.
Subsidiary grounds were also advanced to which it is unnecessary for me to refer.
The common ground
i) Notwithstanding the mandatory words of Section 118(2), the Secretary of State has, as applicable to these proceedings, a residual discretion not to extradite the claimant in circumstances in which, since the conclusion of the domestic extradition proceedings, an event has occurred which would make extradition of the requested person incompatible with his Convention rights the so-called McKinnon jurisdiction: McKinnon v. Government of USA  EWHC 762 (Admin). An amendment to the Extradition Act 2003 has removed this jurisdiction from the Secretary of State; any such claim will in the future have to be raised before the courts.
ii) That discretion is engaged on the facts of this case. (Although not the subject of an express concession, I do not understand it to be controversial that the decision of the Strasbourg Court is a subsequent event which gives rise to the occasion for the exercise of the discretion).
iii) Our task is to determine, objectively, whether or not the evidence before the Secretary of State and us establishes a real risk that the claimant's extradition would infringe the claimant's rights under Article 3: McKinnon paragraph 66. (This is a modest extension of the principle established in McKinnon, impliedly conceded by Mr. Eadie QC when answering the claimant's first ground of challenge; and by his acceptance of the propriety of our considering the evidence of Dr. Dillon in her report of 26 March 2014, a report that was not before the Secretary of State when she made her decision).
iv) Despite the non-standard words used by the Strasbourg Court in paragraph 57 of its judgment, it was in fact applying the standard Article 3 test in a foreign case: are there substantial grounds for believing that the extradition of the claimant to the United States would give rise to a real risk of inhuman or degrading treatment in the United States of such severity as to put the United Kingdom in breach of its obligations to the claimant under Article 3?
v) The approach which we should adopt is the same as that in fact adopted by the Strasbourg Court. Our task is to discern whether or not the new information would, applying the reasoning adopted by the Strasbourg Court, have produced a different result if it had been before that court.
vi) The claimant suffers from an enduring mental disorder, paranoid schizophrenia, which is well controlled by the medication and treatment regime currently available to him at Broadmoor Hospital.
vii) If the claimant were to relapse into the acute psychotic state which he experienced in 2008, the consequences would be of such severity for him as potentially to engage Article 3 ("Such a deterioration would be capable of reaching the Article 3 threshold" in the words used in paragraph 57 of the judgment of the Strasbourg Court).
The issue in the proceedings: what will happen to him if extradited?
"There would be a violation of Article 3 in the event of the appellant's extradition solely on account of the current severity of his mental condition" (my emphasis).
It is the likely impact of extradition and all that it entails on that condition which was central to the Strasbourg Court's decision and must be to ours.
The present regime for treating the claimant
"In my opinion, the improvement in Mr. Aswat's mental state, and the reduction in the risk to his own health and safety, is due to the care that he receives within hospital, and this cannot be provided within the prison estate within the UK.
Mr. Aswat's current treatment includes amisulpride (an oral anti-psychotic medication) 400 mg daily and sertraline 50 mg (an anti-depressant). Mr. Aswat has previously completed the Understanding Mental Illness Group and is provided with ongoing one-to-one psychology sessions by the ward psychologist each month. Mr. Aswat occupies his time by attending off ward areas, including the workshops within the hospital and the Education Department, where he is undertaking an Open University Degree. Mr. Aswat holds green ground access which allows him to access the terrace, an area within the secure perimeter of the hospital where patients can walk, gain fresh air and socialise. With regard to social support Mr. Aswat currently receives regular visits from his family which he values. Mr. Aswat cites his family and religion as positive factors in ensuring that he does not feel hopeless about the future."
These views are consistent with those which she expressed to the First Tier Tribunal, who accepted her evidence in its decision of 11 November 2011.
"Without all of the interventions described above, [i.e. those cited above] I believe it would be very likely that Mr. Aswat would experience a relapse in his mental state and as a result his health and safety could be significantly at risk."
She also addressed, as she did before the First Tier Tribunal, the risks to the claimant's mental condition if removed to a prison such as Long Lartin,
"When considering the likely consequences of a transfer to prison the best evidence comes from his previous response to being in a prison environment, which resulted in his first psychotic episode. This occurred within an environment where there was a Mental Heath In-reach Team, with professionals who could assess and treat his mental state, if he were willing to engage."
As a result of overnight research on the internet, Mr. Eadie has sought to establish that the facilities for the diagnosis and treatment of severe mental health conditions at Long Lartin may be inferior to those available within detention facilities in the United States. I will deal later with the latter; but I can see no reason to doubt or depart from Dr. Dillon's description of the environment at Long Lartin an environment which, in her view, clearly included significant mental health provision.
The likely treatment of the claimant in the United States
"I am guided by the information provided by Mr. Aswat's legal team about the conditions within MCC and how they are vastly different to those that he is used to within Broadmoor Hospital. I understand he would largely be held in solitary confinement, with little access to items or contact with others. The function of the facility is of course very different to the therapeutic milieu provided by a hospital, but it is precisely the environment that is provided by a hospital, in conjunction with the medication and therapeutic inputs that are essential to preventing a relapse.
Social isolation was a feature of Mr. Aswat's illness while in HMP Long Lartin and this preceded the development of florid psychotic symptoms and therefore it is possible that this contributed to his further deterioration. One of the treatment focuses within Broadmoor Hospital has been to ensure Mr. Aswat is occupied and engaged in activities, as this is known to be an important part of rehabilitation for patients with a severe and enduring mental illness, such as schizophrenia. I would be concerned that the sudden experience of being isolated with a lack of stimulation could prompt a relapse at a time that he would already be stressed due to his legal predicament and without mental health service support. Ordinarily, if a patient were to be transferred under the care of a new team there would be a detailed multi-disciplinary handover process and careful planning, which would include developing contingency plans for managing a future relapse."
Lord Thomas of Cwmgiedd, CJ:
The effect on this court of the decision of the Strasbourg Court
Dealing with the mental illness of a requested person
i) The clinician in such a requesting State who will be responsible for the requested person if extradited should liaise with the clinician responsible for the requested person in England and Wales to attempt to resolve the issues as to the appropriate treatment if extradited.
ii) As the disputes in such cases generally relate to the appropriate nature and location of the treatment of the requested person, if extradited, a great deal of the factual dispute should be capable of agreement between responsible clinicians.
iii) If such issues cannot be resolved between the clinicians, they should be able to identify the points of difference so that the court can receive the necessary evidence and itself resolve the issues. This is the process followed in relation to expert evidence. It should be followed in cases where it is common ground that the requested person is suffering from a serious mental illness.
Provision of assurances