England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		10 October 2014

1. MR JUSTICE HICKINBOTTOM: The Appellant, the Government of India, seeks the extradition of the Respondent, Martin Ashley, formerly known as Raymond Varley, who is accused of various sexual offences against children in the period 1989 to 1991. India is a Category 2 territory, and thus Part 2 of the Extradition Act 2003 applies to this case. On 8 May 2014, following an extradition hearing, District Judge Purdy discharged the Respondent under Section 91 of the 2003 Act, finding that his mental health would be such that it would be unjust and oppressive to extradite him. The Appellant Government now appeals on the single ground that the judge's finding in that regard was wrong.
2. The background to the charges against the Respondent is briefly as follows.
3. Dr Freddie Peats ran a boys' home in Goa, India. In 1991, he was arrested following complaints of serious sexual abuse of boys in his care, including allegations that he permitted or facilitated children being taken by visiting European and Australasian men to nearby hostels where sexual abuse occurred and indecent photographs taken. It is the prosecution case that the Respondent was one such man.
4. The Respondent was charged with criminal conspiracy for the commission of various sexual offences on children, the period of conduct involving him being between 1989 and 1991, identified by reference to dates that he stayed at a particular hostel in Goa, as well as the evidence of the children. It is said that photographs discovered during the investigation into Dr Peats' activities show the Respondent with a number of the children who allege they were abused. It is the prosecution case that those photographs implicate the Respondent: and the conduct alleged against the Respondent was in the form of serious sexual abuse of four young boys and a girl. The Respondent denies the photographs are of him, and he denies any wrongdoing.
5. On 21 March 1996, Dr Peats was convicted of various offences at the Additional Sessions Court in Margao, Goa; and was sentenced to life imprisonment. A number of others involved have been extradited from their various countries of residence, and several are now serving sentences of imprisonment following conviction in India.
6. The Respondent was born on 7 September 1947, and was in his early forties at the time of these alleged offences. A domestic warrant for his arrest was issued in India on 15 October 1996. At that time he was living in Thailand – where he had been living since 2000 – but it appears that, in early 2012, he was deported or otherwise removed from Thailand to the United Kingdom in circumstances that are not entirely clear but which in any event have no relevance to this appeal.
7. A request for extradition was made by the Appellant Government to the United Kingdom Government on 25 April 2012, and the case was certified as a Category 2 case on 15 May 2012. The Respondent was arrested at his home in Halifax on 29 May 2012.
8. The extradition proceedings have had an unfortunately protracted course, particulars of which are set out in paragraph 6 of the District Judge's judgment. It is unnecessary here to refer to the details of the delay, much of which was concerned with investigations of prison conditions in India. By April 2013, the Respondent was threatening to commit suicide if extradited to India; and, at a hearing on 9 April 2013, it appeared the Respondent had been referred by his doctor to the local mental health team. That hearing in April 2013 was adjourned for a variety of reasons, including to give time for any medical report to be prepared and filed.
9. In the meantime, in a clinical context, the Respondent was referred by his doctor to a clinical psychologist, Dr Sarah Canning, whom he saw on 1 October 2013. She indicated that he would need further tests for a full assessment of his dementia which was by this stage (in the words of the District Judge) a "tentative diagnosis." On 14 November, the Respondent had a head scan, but was told that the results would not be available to Dr Canning for some weeks. The results of that scan were not before the District Judge and, as I understand it, have never been disclosed.
10. Meanwhile in the extradition proceedings, on 19 November 2013, the District Judge heard submissions on all remaining issues, including those concerning the Respondent's mental health; and he adjourned the matter to 14 (later moved to 22) January 2014 for a full and final ruling. By this time, the Respondent had filed a statement indicating that he believed he suffered from dementia, and he wanted further time to obtain medical evidence. That application was opposed, but the judge granted it. He adjourned the hearing again on 22 January, to 28 March 2014, for that purpose.
11. The Respondent then took matters into his own hands. Believing he was suffering from some sort of dementia, without reference to his solicitors he self-referred to another clinical psychologist, Ms Linda Atterton, a Chartered Clinical Psychologist specializing in neuropsychology, whom a friend of the Respondent had identified on the internet.
12. Ms Atterton prepared two reports dated 10 February and 19 March 2014, which were served on the Appellant on 18 and 19 March 2014 respectively. On 25 March, the Appellant sent the Respondent and the court an email indicating that Ms Atterton's evidence was disputed, and she would be required to give evidence. At the 28 March hearing ,the District Judge specifically asked the Appellant Government whether it intended to seek a medical examination of the Respondent or call evidence in rebuttal, and was told that it did not; but the hearing was adjourned, yet again, to 25 April 2014 to enable Ms Atterton to attend. She duly attended that hearing, at which she gave evidence and was cross-examined. The Respondent did not give evidence himself.
13. At the time of her first report (10 February 2014), Ms Atterton did not know that the Respondent was facing extradition. That report included the following:
14. (i) Ms Atterton set out her qualifications and experience, which included regular instructions to conduct assessments to pinpoint type and extent of neuropsychological impairment. She said she was routinely asked to see patients with a view to assessing mental capacity, fitness to plead and capacity to manage their own affairs, including instructing a solicitor. In her second report, she confirmed that she regularly makes assessments of mental capacity and fitness to plead and to instruct a solicitor, having received appropriate training to do so. She has assessed well over 100 patients at various stages of dementia.
15. (ii) Ms Atterton first spoke to the Respondent by telephone. In just trying to arrange an appointment, she said he lost track of what he was saying and in finding words, so it was difficult to have a coherent conversation with him. She said it was apparent to her from the beginning that he was suffering from some type of dementia.
16. (iii) At their first meeting, the Respondent told her that he believed he was suffering from some type of dementia. He had been advised by the Alzheimer's Society and a friend to keep a diary detailing his difficulties, which he had done for three months. That diary suggested that he suffered severe disorientation with regard to time and place – he would, for example, arrive somewhere having forgotten his reason for going there – and also difficulties with concentration, word-finding and problem- solving.
17. (iv) She conducted an assessment of the Respondent, shortened because of the severity of his difficulties in doing it. She carried out psychological tests of attention, concentration, visual spatial functioning, verbal fluency, problem solving and language, including confrontational naming. She found his concentration, attention, working memory, short-term memory, semantic memory and verbal fluency all severely impaired. His writing, visual spatial function and long-term memory were also impaired. She found him to suffer from disassociation, a state in which a person feels removed from himself and watching himself, besides or above – which, in her judgment, was highly likely to be neurological.
18. (v) She concluded that "there [was] widespread, moderate-severe impairment, affecting everyday life, self-care and capacity to look after his own affairs and be safe at home and in the community". She said she could not pinpoint the type of dementia, but it might be Alzheimer's, and irrespective of label, it would deteriorate.
19. Ms Atterton's second report (dated 19 March 2014) was specifically prepared to assess the likely impact of extradition. She said as follows:
20. (i) Her diagnosis of the Respondent's condition was "without any doubt" dementia.
21. (ii) She considered there was absolutely no evidence of malingering or simulation of deficit. The Respondent's presentation was severe and typical, and it would be almost impossible to simulate in neuropsychological assessment.
22. (iii) The Respondent was severely impaired in terms of both comprehension and expression of language. He found it very difficult to remember the meaning of words.
23. (iv) That deficit interacted with and compounded severe memory problems with the result that he is unable to represent himself to others coherently, and he had limited capacity to instruct a solicitor without substantial support. If he were to have to change solicitors, he would quite likely lack capacity to instruct new solicitors appropriately.
24. (v) His level of functioning was dependent upon familiarity of surroundings, so that extradition would result in a severe drop in functioning. She was concerned about the effect of likely extradition on his physical and mental well-being, saying:

"I... do not believe he is well enough in any respect to be currently facing proceedings. It would be impossible for his functioning to improve to a level where this would not be the case. Deterioration is almost inevitable and there is no medication that will significantly improve his functioning or any other means of doing so."

25. Ms Atterton gave evidence oral evidence, and was cross-examined, at the hearing. She said she understood that a friend of the Respondent had identified her as an expert through the internet. At one stage, she appears to have accepted that she could not give a formal or pathological diagnosis of dementia; but she said she was able to give an opinion based on her training and expertise. She had previously assessed the fitness to plead of individuals, although she had not given evidence before a criminal court on fitness to plead.
26. When Counsel for the Appellant suggested in his closing submissions that the Respondent might have been exaggerating his symptoms, the District Judge said, "Why not have your own report then?". However, no adjournment for any further evidence was requested; and no further medical evidence provided.
27. The District Judge delivered his judgment on 8 May 2014. He rejected the Respondent's submissions that the warrant ought to be discharged because the evidence did not disclose a prima facie case, or because of passage of time, or because extradition risked breaching article 3 of the European Convention on Human Rights because of prison conditions in India. However, he did discharge the warrant under Section 91 of the 2003 Act on the basis of the Respondent's mental health.

Section 91 provides:

"Physical or mental condition

(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."

28. In respect of those provisions, we have been referred to a number of authorities, particularly two cases in which this court considered the extradition of Shrien Dewani, namely Dewani v Government of South Africa [2012] EWHC 842 (Admin) ("Dewani No 1"), and Government of South Africa v Dewani [2014] EWHC 153 (Admin) ("Dewani No 2"). In those cases, this court emphasized the public interest in seeing that persons accused of crimes are brought to trial, and thus, to account (see Dewani No 1 at [77]); and stated that the only situation in which a court is likely to say it would be oppressive and unjust to return a requested person is where it is clear that he would be found to be unfit to plead in the requesting state, bearing in mind his health and age, and taking into account such factors as the time that might be taken to bring him to trial in the requesting state – because in those circumstances a fair trial would be impossible (see, particularly, Dewani No 2 at [51] and following).
29. Mr Caldwell for the Appellant submitted before us that the District Judge's reliance on the evidence of Ms Atterton was misplaced. Not being a medical doctor, she was not qualified to make a clinical or pathological diagnosis of dementia; and her report lacked "rigour", as evidenced by her inability to recall the date of her appointment with the Respondent, her lack of notes of meeting with him, the absence of record of responses from him, and her evaluation of his dementia as "moderate-severe" which lacked precision. The District Judge did not approach her evidence with caution, as he should have done, given the curious manner in which she was instructed, direct by the Respondent; and the fact that, at the time of her first report, she was unaware of the extradition request, and thus not aware of a good reason on the Respondent's part for exaggerating his symptoms. Although venturing an opinion as to the Respondent's inability to participate in a trial, she failed to consider his capacity to recall events from the past, and her opinion on the severity of the Respondent's condition was inconsistent with the degree of his participation in the then-recent stages of the proceedings, including his apparently clear and lucid account of his case to his legal representatives in his proof of evidence in November 2013.
30. In short, Mr Caldwell submitted Ms Atterton was insufficiently qualified to give the expert evidence that she purported to give; and, in any event, that evidence was insufficient for the District Judge properly to conclude that the Respondent's mental condition was such that it would be unjust and oppressive to extradite him.
31. However, lucidly as those submissions were made, I am unable to accept them.
32. In respect of Ms Atterton's expertise, that was directly challenged by the Appellant Government before the District Judge, Ms Atterton being cross-examined on it. The judge referred to that specific challenge in paragraph 1 of his judgment. As it was put to that judge, Mr Caldwell submitted to this court that Ms Atterton was insufficiently qualified to make a pathological diagnosis of dementia, not being a medical practitioner or a psychiatrist. However, she said that, as a psychologist, she had a specialism in neuropsychology in which she has an academic diploma. She said she had "experience of dementia on a daily basis over many years"; and saw patients like the Respondent "daily." She said that "it is quite frequent that a person is not referred to a psychiatrist within the NHS", but reliance is instead placed on a psychologist like her.
33. Looking at the District Judge's judgment as a whole, it is quite clear that, on the basis of the evidence before him which was tested by way of cross-examination, he considered Ms Atterton was competent to give the evidence that she did give as to the Respondent's current functional deficit and the prognosis in respect of that deficit. On the evidence before him, in my view he was clearly entitled to come to that conclusion; and, as this court reviews that conclusion, it is to be noted that he was in a far better position than this court is to make that judgment because he heard the evidence, including the cross-examination. Particularly given that advantage in the judge, the conclusion cannot be said to be wrong.
34. I also note, as did the judge, that the Respondent's NHS GP referred the Respondent to a clinical psychologist for consideration of the extent of his dementia, which was apparently the doctor's provisional diagnosis.
35. Similarly, the judge was fully able and entitled to find Ms Atterton's evidence "compelling", which he did. Again, that cannot be said to be wrong.
36. The judge frankly accepted that the medical evidence before him was "relatively limited"; but the Appellant had been given more than a fair opportunity to examine the Respondent and put in medical evidence of its own if it wished to do so and, even at the end of the lengthy extradition process, expressly declined to do so. Before the District Judge, there was the fact that the Respondent had been referred to Dr Canning and the evidence of the Respondent himself in his statement, as well as that of Ms Atterton – although, of course, Ms Atterton's evidence was clearly crucial. The judge recited the important elements of that evidence as he saw them, including her opinion that the Respondent's "concentration, attention and working memory are all severely impaired", "his short-term memory was extremely poor", and he suffered from "widespread, moderate-severe impairment, severely affecting everyday life", with the result that he needed "immediate daily support, both practical and emotional to keep him safe". The judge noted, and clearly accepted, Ms Atterton's rejection of any suggestion of malingering, as (she said) to manipulate the test results one would need to know the tests she would use – and she herself did not know beforehand the tests she would ultimately use. He noted that Ms Atterton considered that nearly every aspect of the Respondent's intellectual function was affected, he had moderate to severe mental dementia already and, if standing trial in the United Kingdom in just a few weeks from her report, she said: "I do not think he could follow even with breaks... [He] lacks capacity to give evidence or face cross-examination", and this would be "...magnified several times if a few years on". On the basis of that evidence, the judge found that "any suggestion of meaningful participation [by the Respondent] in the trial process, [in India after extradition] is simply preposterous" (paragraph 15 of the District Judge's judgment).
37. Mr Caldwell submitted that the judge's approach was in error in a number of ways. For example, he said that the judge did not express any caution as to the underlying basis of Ms Atterton's instructions, i.e. having found her on the internet, the Respondent instructed her himself and initially without any indication that he faced extradition. In my view, the fact that the Respondent did not indicate to Miss Atterton at the outset that he faced extradition cuts both ways, because it cannot be suggested that Ms Atterton could have been influenced in her first report by any knowledge that he was facing extradition. However, by the time he delivered his judgment, the judge well knew the circumstances of Ms Atterton being instructed: she had been cross-examined about them with some vigour by Mr Caldwell. There is no basis for suggesting that the judge failed to take them into account.
38. Similarly, Mr Caldwell submitted Ms Atterton's report was "lacking in vigour", because she could not recall the date of her examination and assessment of the Respondent, she had no notes of the meeting and she was not qualified to make any clinical diagnosis of dementia, not being medically qualified. As to the absence of notes from her meeting with the Respondent and her inability to recall the date of that meeting, I accept that Ms Atterton's evidence may well have been the stronger if she had made notes but, again, the District Judge was well aware of that as an issue – as it too had been pursued by Mr Caldwell – and, in assessing Ms Atterton's evidence he (the judge) was able to give the absence of notes etc the weight that he considered appropriate.
39. Mr Caldwell also submits before us that Ms Atterton's report made no proper assessment on the so-called Pritchard criteria, i.e. the criteria for fitness to plead and to conduct a trial originally set out by Alderson B in R v Pritchard (1836) 7 Car & P 303; but, with respect to that submission, I consider the criticism unfair. Those criteria (which are helpfully set out in Archbold 2014, paragraph 4-235) focus, not only on fitness to plead, but also on whether the individual is able to instruct legal representatives, plead to charges, challenge jurors and understand and give evidence; and, in my view, Ms Atterton did in substance cover these matters in her evidence, certainly sufficiently to enable the judge to conclude, as he did, that the Respondent was not fit to plead now and there was no likelihood of his ever being fit to plead in the reasonably foreseeable future. The evidence of Ms Atterton had been firmly that the Respondent's functional deficit would only deteriorate.
40. Mr Caldwell specifically relied upon a passage in Ms Atterton's second report, namely paragraph (III), in which she indicated that the Respondent was then unable coherently to represent himself to others, and she said: "I believe he is therefore limited in his capacity to instruct a solicitor currently without substantial facilitation by the solicitor or those supporting him in this respect". Mr Caldwell submitted that that is not the same as being unable to instruct a solicitor; but that passage has to be read in context, including paragraph (VI), where Ms Atterton said that she did not believe the Respondent was well enough in any respect to be currently facing these proceedings – let alone the possible consequences of the proceedings – and that it would be impossible for his functioning to improve to a level where this would not be the case.
41. It is not, in my view, to the point that Ms Atterton did not venture an opinion as to the type of dementia from which the Respondent suffered; as she was clear as to the functional deficit arising from the condition whatever its label; and she said that the prognosis and consequences would not vary, whatever the type.
42. Mr Caldwell, somewhat belatedly, relies upon an undertaking made by the relevant Under Secretary of State on behalf of the Appellant Government, dated 1 October 2014, to the effect that, if the Respondent were extradited to India and were there found to be of unsound mind within the meaning of sections 329 to 331 of the Indian Code of Criminal Procedure – and thus unfit to plead or participate in a trial "within a reasonable period of about 18 months of such finding by the trial court" – then he will be returned to the United Kingdom. However, whilst of course I accept that what will or may happen in the requesting state following any extradition may be a material circumstance for the purposes of Section 91, I do not consider that undertaking significantly assists Mr Caldwell's cause. First, of course, it was not before the District Judge. Second, where it is found that a requested person's physical or mental health is such that it would be unjust or oppressive to extradite him, section 91 of the Extradition Act 2003 requires the judge at an extradition hearing to order the requested person's discharge, or adjourn the hearing until it appears that his condition is not such that it would be wrong to extradite him. The words in section 91(3) are imperative: "The judge must...". Where a judge finds that the requested person is unfit to plead and participate in a trial, and there is no likelihood of that unfitness relenting within a period of reasonable time, the appropriate course is to discharge him; not to order his extradition for the authorities in the requesting state to consider again that fitness. Dewani is distinguishable; because, in that case, the relevant mental state was not thought to be permanent.
43. Those are the main matters relied upon by Mr Caldwell. In my view, they - together with the other matters to which he referred in his written and oral submissions (which I have considered; but which, in my respectful view, add nothing of force - in substance, amount to a submission that the weight the District Judge gave to the evidence of Ms Atterton was wrong. As I have described, the Appellant Government was given more than a fair opportunity to conduct its own medical, psychiatric and/or psychological examination of the Respondent, and prepare and rely upon its own evidence in relation to such examination. It steadfastly refused to do so. In those circumstances, the judge was in the best position to consider the appropriate weight to be given to the evidence before him, including that of Ms Atterton; and was, in my judgement, fully entitled to find the evidence of Miss Atterton compelling and, on the basis of it, conclude that the Respondent was not fit to plead or to conduct a trial in India and that he would be unlikely to be so fit in the reasonably foreseeable future. On the basis of Dewani, the conclusion that the Respondent had a mental condition such that it would be unjust or oppressive to extradite him was one which, in my view, the judge was fully entitled to make, for the reasons he gave; and, on the basis of his earlier findings, it was in my view, all but inevitable. Certainly, in my judgment, this court cannot say that he was wrong, there being no objective grounds on which this court could properly depart from the findings of the District Judge.
44. For those reasons, I do not consider the District Judge erred; and I would dismiss this appeal.
45. LORD JUDGE ELIAS: I agree. The substance of Mr Caldwell's submission, as my Lord has pointed out, was that the judge placed far too much weight on the evidence of Miss Atterton and that as a consequence the conclusion that Section 91 was satisfied was a perverse one, having regard to the evidence as a whole. That is an extremely difficult argument to advance, particularly since the judge had the benefit of hearing Miss Atterton give evidence orally and to assess her answers to what was, no doubt, robust cross-examination. Mr Caldwell has, indeed, identified various features of the evidence which point strongly against the judge's conclusion, and perhaps other judges would have given them greater weight than this judge did: but questions of weight are always for the judge. Here the district judge was no doubt conscious of the factors relied upon before us, because they were pressed before him too. He had regard to them, but nonetheless he considered, in the light of all the evidence, that Section 91 was satisfied. In my judgement, it cannot possibly be said that this conclusion was perverse or manifestly against the weight of the evidence.
46. Thank you, for your attractive and well-presented submissions, if I may say so. Thank you, for your written submissions.
47. MR BUTT: The only other matter is an order for assessment of the Respondent's legally aided costs.
48. LORD JUDGE ELIAS: You will get that.