QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
Mr Justice Simon
| (1) Paul Dunham
(2) Sandra Dunham
Government of the United States
Rachel Barnes (instructed by Kaim Todner) for Mrs Dunham
Peter Caldwell (instructed by CPS Extradition Unit) for the Respondent
Hearing date: 6 February 2014
Crown Copyright ©
Mr Justice Simon:
Introduction and background
(1) The question is always whether the interference with the private and family lives of the Requested Party and other members of his or her family is outweighed by the public interest in extradition (sub-§3).
(2) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial, and that there should not be safe havens to which people can flee in the belief that they will not be sent back (sub-§4).
(3) That public interest always carries great weight, although the weight attached to it varies according to the nature and seriousness of the crimes involved (sub-§5).
(4) The delay between the time the crimes have been committed and the request for extradition may both diminish the weight to be attached to the public interest and increase the impact upon private and family life (sub-§6).
(5) It is likely that the public interest in extradition will outweigh the article 8 rights of the Requested Person and the family unless the consequence of the interference with the article 8 rights will be exceptionally severe (sub-§7).
The rule in Henderson v Henderson (1843) 3 Hare 100 is very well known. It requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided (subject, of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise. The rule is not based on the doctrine of res judicata in a narrow sense, nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on for ever and that a defendant should not be oppressed by successive suits when one would do. That is the abuse at which the rule is directed.
It is normally incumbent on litigants in first instance courts or tribunals in which evidence is adduced to advance their whole case at first instance and to adduce all the evidence on which they want or need to rely. In most cases, the purpose and function of an appeal is to review the decision of the lower court upon the evidence which was adduced before the lower court. An appeal court is not generally there to enable a litigant who has lost in the lower court to advance their case upon new and enlarged evidence which they failed to adduce in the lower court ...
The discretion to admit fresh evidence afforded by statute and rule in criminal and civil appeals respectively, although it remains a discretion, is not unregulated. Intrinsically the principles of justice would expect the court to ask why the evidence was not adduced at first instance, and whether there is a good reason or excuse for not doing so – for the policy is that litigants should normally adduce their whole case and evidence at first instance ...
First, the observations of Collins J in R (Adedeji) v. Public Prosecutor's Office Germany  EWHC 3237 (Admin) at ,
It would be in my judgment wrong to say simply because a point was not spotted below it cannot now be raised.
Secondly, the observations of Sir John Thomas PQBD in Jones v, Government of the USA  EWHC 2332 at ,
This court cannot but emphasise yet again that arguments on extradition are to be properly advanced before the District Judge.
The public interest
The focus of this implied jurisdiction is the abuse of the requested state's duty to extradite those who are properly requested, and who are unable to raise any of the statutory bars to extradition. The residual abuse jurisdiction identified in Bermingham and Tollman concerns abuse of the extradition process by the prosecuting authority. We emphasise those latter two words. That is the language of those cases. It is the good faith of the requesting authorities which is at issue because it is their request coupled with their perverted intent and purpose which constitutes the abuse. If the authorities of the requesting state seek the extradition of someone for a collateral purpose, or when they know that the trial cannot succeed, they abuse the extradition processes of the requested state.
The Appellants' article 8 rights
In my opinion Mr Dunham fulfils the International Classification of Diseases 10th version (ICD-10) criteria for Adjustment Disorder (ICD-10 code F43.28). This in his case has been brought on by a significant life change (namely that of extradition) leading to continued unpleasant circumstances. This continued trauma is the direct cause through which this disorder has arisen. As further stipulated by the ICD-10, in Mr Dunham's case, these unpleasant circumstances are 'the primary and over-riding causal factor, and the disorder would not have occurred without the impact'. This disorder can thus be regarded as a maladaptive response to the continued stress and it interferes with successful coping mechanisms, leading to problems of social functioning.
The Disorder has been perpetuated by the ongoing legal process of extradition. It has been made 'unbearable' by (as Mr Dunham alleges) the contacting of his relatives, friends and business contacts by Mr Siegel and/or his associates. Ongoing financial difficulties and health complaints have also contributed significantly in the perpetuation of Mr Dunham's disorder. In turn, the anxiety perpetuates his physical health complaints and Mr Dunham remains stuck in this vicious cycle.
His relationships with his clinicians have also been hugely positive for Mr Dunham: he has been able to receive timely advice and support from Changing Minds as well as frequently attending to see his GP (and hospital physicians and surgeons). Accessing physical and mental health services with relative ease has helped to protect against deterioration in his mental state, limiting his anxiety and improving his insight regarding his mental and physical health complaints.
Treatment and Prognosis
The single most effective treatment recommendation would be to remove the 'stressor'. As long as Mr Dunham remains under this stress his chances of recovery are limited. If the extradition proceedings were discontinued then he is likely to begin to recover.
Effects of Extradition/Detention at CDF
Given the description of the conditions under which Mr Dunham is likely to be detained in the United States, I have significant concerns about how they will affect Mr Dunham, including his physical and mental health as well as the risk of him committing suicide. With the increased stress, lack of support (including lack of visits from his family (especially wife) and friends), isolation and legal uncertainties, Mr Dunham's level of anxiety will certainly increase. This in turn will likely worsen his physical health and psychological complaints.
Were Mr Dunham to find himself at CDF (or a similar facility), not only would he have lost his 'protective' factors but the 'perpetuating' factors would also have increased in their number frequency and intensity. Mr Dunham already has a plan to end his life; I fear that attempted suicide would be a likely scenario; he will have a high chance of succeeding in killing himself, unless he is placed under continuous observation.
... their issues are related to the current legal and financial situation rather than any underlying psychiatric or mental health problems.
Evidence as to the conditions of detention in the United States
(1) The inevitability of remand in custody in the United States pending trial, notwithstanding the Appellants' good character, age and mental fragility, and (in the case of Mrs Dunham) the limited allegations against her.
(2) The conditions of custody, most likely in CDF.
(3) The lack of access to counselling and psychological therapy in CDF, as opposed to pharmaceutical treatment for diagnosed depressive illness.
That evidence was not available before the District Judge because the issue of the conditions of custody on remand was not apparent, nor was the fact that detention is most likely to be in a state run, rather than federal, detention facility, and further, one with such a poor reputation (CDF). That evidence has brought to the fore the question of mental health of both Mr and Mrs Dunham since it is now apparent that the medical facilities at CDF for those with psychological and psychiatric healthcare requirements are inadequate.
That said, I have never had a client suffer a serious medical episode while at CFD, but I have to say this seems more attributable to luck than anything else. I have never heard of mental health counselling or anything like that. The jail says they have a psychiatrist on staff, but clients describe to me that they have meetings that last than 10 minutes and at the end of it each is invariably prescribed some generic anti-depression medication regardless of symptoms. A priest that visits occasionally is as close as it gets to counselling.
He added that there are suicide watches for those thought to be at risk and he had never heard of any suicide occurring.
The submissions on article 8
The grant of bail would ordinarily be a significant safeguard which would operate to protect an individual from unnecessary and disproportionate interference [with article 8 rights] pending resolution of the issue at trial, but bail would not be granted here.
Interference with private and family life is a sad, but justified, consequence of many extradition cases. Exceptionally serious aspects or consequences of such interference may however outweigh the force of the public interest in extradition on a particular case
Lord Justice Beatson: