England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/01/2015

LORD JUSTICE BURNETT:

Introduction

1. On 11 November 2014 at Westminster Magistrates' Court District Judge Bayne ordered the appellant's extradition to Spain. This is his appeal against that order pursuant to Section 26(1) of the Extradition Act 2003 ("the 2003 Act"). There is one ground of appeal. The appellant suggests that it would be unjust or oppressive to extradite him and so, by virtue of Section 25 of the 2003 Act, the District Judge should have discharged him. The basis upon which he argued before the District Judge and argues before this court that it would be unjust or oppressive to extradite him is found in the psychiatric illness from which he suffers, which gives rise to a risk of suicide should he be extradited. Mr Jones submits that a combination of three factors takes this appeal out of the run of most extradition cases involving Category 1 requesting states. They are:

i) That the appellant's mental illness has resulted for the most part in his being held on remand during the extradition proceedings in a secure hospital rather than a prison and in need of focussed care;

ii) That there is concern about the availability and quality of interpreters to help him communicate with medical staff in Spain given that he speaks little Spanish;

iii) Separation from his wife, who because of her own medical and financial problems would be unable to travel to Spain, would have more than the usual and inevitable adverse impact upon him. That is because he has a history of being more candid with her about his anxieties than with medical staff. As a result she has been able to pass on concerns which would otherwise have been missed.

2. The appellant is sought pursuant to an accusation European Arrest Warrant. His surrender is sought in order to face trial in Almería, Spain for rape and attempted murder. The offences are alleged to have occurred on 3 April 2006. The appellant, who is now 59 years old, lived in Spain with his wife between 2004 and 2006. He continued to travel to and from Spain thereafter. On 24 February 2009 he was arrested in Spain and remanded in custody until April 2010, when he was released on conditional bail. One of the conditions of his release was that he was required to remain in Spain. In breach of that condition he returned to the United Kingdom.
3. The warrant was issued by the Provincial Court of Almería on 3 June 2013. The appellant was arrested in October 2013 and taken promptly before the Magistrates' Court. He was remanded in custody to HMP Wandsworth. He was admitted to the psychiatric health care wing of the prison on 14 November 2013 and then transferred to Farmfield Secure Hospital on 26 November 2013. He has remained there ever since. The extradition proceedings before the Magistrates' Court were adjourned on countless occasions in the year that followed the appellant's arrest, sometimes on account of his psychiatric condition and concerns about whether he was fit to attend a hearing and on other occasions to enable him to secure evidence. It was in those circumstances that the matter was heard by the District Judge on 24 and 28 October 2014 with judgment being handed down on 11 November 2014 when the order for extradition was made.

Applicable Legal Principles

4. The legal principles to be applied to cases raising an argument under Section 25 of the 2003 Act in the context of suicide risk connected to extradition to a Category 1 European Union ("EU") territory were comprehensively stated in the Judgment of the Court given by the President of the Queen's Bench Division given in Wolkowicz v Polish Judicial Authority [2013] EWHC 102 (Admin). The material paragraphs bear repetition:

"7. There have been a large number of cases in which the question as to whether the mental condition of a requested person who poses a substantial risk of suicide amounts to his extradition being unjust or oppressive or in breach of Article 3 of the Convention. …

8. In a recent suicide case, Turner v Government of the USA [2012] EWHC 2426 (Admin), Aikens LJ summarised the propositions which could be derived from these cases at paragraph 28:

(1) The court has to form an overall judgment on the facts of the particular case.

(2) A high threshold has to be reached in order to satisfy the court that a requested person's physical or mental condition is such that it would be unjust or oppressive to extradite him.

(3) The court must assess the mental condition of the person threatened with extradition and determine if it is linked to a risk of a suicide attempt if the extradition order were to be made. There has to be a "substantial risk that [the appellant] will commit suicide". The question is whether, on the evidence the risk of the appellant succeeding in committing suicide, whatever steps are taken is sufficiently great to result in a finding of oppression.

(4) The mental condition of the person must be such that it removes his capacity to resist the impulse to commit suicide, otherwise it will not be his mental condition but his own voluntary act which puts him at risk of dying and if that is the case there is no oppression in ordering extradition.

(5) On the evidence, is the risk that the person will succeed in committing suicide, whatever steps are taken, sufficiently great to result in a finding of oppression?

(6) Are there appropriate arrangements in place in the prison system of the country to which extradition is sought so that those authorities can cope properly with the person's mental condition and the risk of suicide?

(7) There is a public interest in giving effect to treaty obligations and this is an important factor to have in mind."

9. We agree with counsel that this is a succinct and useful summary of the approach a court should adopt to s.25 and s.91 of the 2003 Act.

(c) The importance of preventative measures

10. The key issue, as is apparent from propositions (3), (5) and (6), will in almost every case be the measures that are in place to prevent any attempt at suicide by a requested person with a mental illness being successful. As Mr Watson correctly submitted on behalf of the respondent judicial authorities, it is helpful to examine the measures in relation to three stages:

i) First, the position whilst the requested person is being held in custody in the United Kingdom is clear. As Jackson LJ observed in Mazurkiewicz at paragraph 45, a person does not escape a sentence of imprisonment in the UK simply by pointing to the high risk of suicide. The court relies on the Executive branch of the state to implement measures to care for the prisoner under the arrangements explained in R v Quazi [2010] EWCA Crim 2759, [2011] Crim LR 159.

ii) Second, when the requested person is being transferred to the requesting state, arrangements are made by the Serious Organised Crime Agency (SOCA) with the authorities of the requesting state to ensure that during the transfer proper arrangements are in place to prevent suicide in appropriate cases. As Collins J helpfully mentioned in Griffin at paragraph 52, steps should ordinarily be taken in such cases to ensure that no attempt is made at suicide and proper preventative measures are in place. Medical records should be sent with the requested person and delivered to those who will have custody during transfer and in subsequent detention.

iii) Third, when the requested person is received by the requesting state in the custodial institution in which he is to be held, it will ordinarily be presumed that the receiving state within the European Union will discharge its responsibilities to prevent the requested person committing suicide, in the absence of strong evidence to the contrary: see the authorities set out at paragraphs 3-7 of Krolick and others v Several Judicial Authorities of Poland [2012] EWHC 2357 and paragraphs 10-11 of Rot. In the absence of evidence to the necessary standard that calls into question the ability of the receiving state to discharge its responsibilities or a specific matter that gives cause for concern, it should not be necessary to require any assurances from requesting states within the European Union. It will therefore ordinarily be sufficient to rely on the presumption.

It is therefore only in a very rare case that a requested person will be likely to establish that measures to prevent a substantial risk of suicide will not be effective."

The Appellant's Evidence

5. The District Judge had before her three medical reports prepared by Dr. Aslam Bhatti, an associate specialist in forensic psychiatry who is part of the team which has been looking after the appellant since he was admitted to Farmfield Hospital. Those reports establish that the appellant suffers from severe depression and psychosis. He has expressed suicidal thoughts and has suicidal ideation. On one occasion he harmed himself by cutting his arms superficially. The appellant has stated that he lacks the courage to act on such ideas. Nonetheless, Dr. Bhatti's view, recorded in his main report of May 2014, was that if extradited the appellant would be "at risk of suicide." That conclusion was founded on two essential propositions identified in paragraph 13.7 of that report:

"If the language barrier is not overcome properly and medical support is limited in Spain, it is highly likely that Mr Cogan will deteriorate in his mental state and be at risk of suicide."

6. The language barrier is a reference to the fact that the appellant does not speak Spanish and has expressed concern about his ability to communicate adequately with medical staff in Spain. In an addendum report of 22 October 2014 Dr. Bhatti described the detailed support which the appellant had been receiving in his facility. He concluded that extradition to Spain would risk a further deterioration in the appellant's condition leading to an increased risk of suicide. He referred to the position of the appellant's wife. She suffers from a serious heart condition and would be unlikely to travel to Spain to visit him. The separation would add to the appellant's stress. There is also reference in the medical reports to Mrs Cogan passing on things said by the appellant to her indicating that he had suicidal ideation.
7. A more up to date report has been produced since the extradition order was made by Dr. Doreen Attard, consultant forensic psychiatrist, who has been the appellant's responsible clinician since the beginning of 2014. She describes the adverse reaction the appellant had after his appeal was dismissed in October, the support package that was put in place and how in due course he returned to his pre-existing state. She expects the same thing would happen were he to lose his appeal to this Court. She further explained that if the appellant were removed to a prison in Spain the risk of suicide would be likely to increase. The overall picture painted by the medical evidence is of a man who has been in need of considerable psychiatric support during the period on which he has been on remand in custody in connection with these proceedings and with a strong expectation that such support would be necessary in Spain.
8. There is no doubt that the appellant suffers from mental illness and is very disturbed at the prospect of being extradited to Spain. He has suicidal thoughts and is a suicide risk. He is very likely to need significant support in Spain. The psychiatrists believe that support should be provided in a hospital, rather than prison, environment as it has been in this country for over a year.
9. In the statement which the appellant prepared for the purposes of the extradition hearing he touched briefly on his time in custody in Spain before release on bail on 14^th April 2010. He said this

"I received no psychiatric help while I was on remand in Spain. There were only a few occasions where an interpreter was available to translate at Court and with my solicitor. I only had a limited understanding of what was happening in my case. I was frequently told that the case would be concluded soon and I just needed to be patient."

In the medical evidence there are many references to his underlying concern about his ability to understand the proceedings in Spain and thus effectively take part in them. He has repeatedly expressed doubts about the quality of the interpreter or interpreters that he had at court. The medical evidence records a reference to his difficulty in communicating with a doctor in the prison in Spain, who apparently did not speak English. Dr Bhatti reports:

"He also believes that he will not be able to ask for help for his mental health problems in Spain because of the language barrier. He has said that in the past when he was in prison, he did feel low in his mood but could not ask for psychiatric help. According to him, the prison doctor was unable to speak to him in English and he had to use dictionary to find Spanish version of the English words and write on a piece of paper when he asked for help for his physical health problems."

We understand the sometime during his remand in custody in Spain the appellant had a back problem for which he received some treatment. Having heard oral evidence on this matter, the judge found that the appellant did not seek any treatment for his low mood. There is no evidence that the appellant sought help in communicating with this single doctor, still less that he was denied it.

The Evidence from Spain

10. From the outset the question of how the appellant's psychiatric illness and suicide risk would be managed if he were extradited was at the heart of his appeal. His concern about the language barrier was also apparent. Dr Bhatti's medical reports have been translated into Spanish and sent to the Almería authorities.
11. Despite the strong presumption that operates in this environment, as confirmed in Wolkowicz, the President of the Provincial Court of Almería provided information in a "ruling" of 1 July 2014. Its formal nature was such that the appellant could have appealed it. The ruling confirmed that psychiatric units exist within Spanish prisons and, furthermore, that there are "psychiatric penitentiary centres" to which those detained in prisons may be sent. It referred to the programme for the provision of the care to inmates at risk of committing suicide. It provided a website address where details of that could be found. A copy of the content was provided to the Judge at the extradition hearing. The ruling continued by indicating that the provision of interpreters for any foreign inmate unable to speak any of the official languages of Spain is guaranteed, to the extent that, if necessary, another inmate might be employed for that purpose. The ruling dealt with a number of other matters which are not in issue.

The Decision Below

12. The Judge applied the tests set out in Wolkovicz. The core of her conclusions is found in the following paragraphs:

"30) The most recent Report dated 22/10/14 (para 11) shows that, although there has been no improvement in his condition as a result of ECT, there have been no further attempts at suicide and the risk continues to be managed through medication and close observation.

31) The RP's greatest fears appear to be an inability to communicate in Spain because of language problems and the removal of the support he gets from his family. His wife is able to speak to him every day at the moment and she visits regularly.

32) The JA has provided the court with a great deal of evidence of what support there is in general in Spain for those who suffer from mental illness. I give weight to the contents of the document dated 1/7/14 and the contents of the additional material entitled "Prevention of Suicides" which is taken from a Spanish Ministry of Interior website.

33) In this particular RP's case there now exists a full picture of what his difficulties are and a clear treatment plan has been in place for the past year. The risk has been clearly identified by Dr Bhatti and all of his Reports have been translated into Spanish and will follow the RP to Spain if his extradition is ordered. He will be in a very different position to the one he was in when he was last in prison in Spain because the Spanish authorities will be well aware of his mental condition.

34) There is no evidence to satisfy me to the requisite standard that Spain, as a Part 1 country, does not have the facilities adequately to manage the risk that exists in this RP's case.

35) There is no evidence to show that, where a specific risk has been identified such as is the case here, the requesting state, Spain, will not ensure that the RP is placed in an appropriate custodial environment with access to an appropriate interpreter and appropriate treatment in order to address the risk of suicide.

36) A return to Spain will mean that it will be more difficult for the RP's wife to give him the support that she clearly does but this will no doubt be taken into consideration by the Spanish authorities and adequate steps put in place to ensure that the RP's increased vulnerability is monitored. There is clear evidence that contact with his family is an entitlement.

37) For all of the reasons I have set out I am not persuaded in this case that the high threshold has been reached to allow me to find that an order to extradite would be either unjust or oppressive. The RP's challenge under section 25 of the Act fails."

Subsequent Events

13. The appeal to this Court was listed for hearing on 28 November 2014. On that occasion, Sir Stephen Silber, sitting of a Judge of the High Court adjourned the appeal and directed the respondent to obtain further information. Counsel agreed two issues in respect of which the respondent should be invited to provide material:

i) Information that would assure the court that the appellant would be provided with appropriate interpretation facilities in order that he could communicate effectively with his doctors and others responsible for his care.

ii) Information that would assure the court either that the appellant would be placed in a psychiatric hospital following his extradition or that a decision in relation to this would be made and that a suitable place in a psychiatric hospital was likely to be available to him.

14. In these rather unusual circumstances two further pieces of information are before us. The first is a medical examiner's report and the second a report from the Director of the Penitentiary Centre of Almería. Those reports are dated respectively 10 and 12 December 2014 and were forwarded to the Crown Prosecution Service, who act for the respondent, on 18 December. There were difficulties in getting them translated over the Christmas holidays with the result that they were not provided to the appellant until 8 January 2015. Although Mr. Jones initially objected to the documents being relied upon that objection has not been maintained.
15. The medical examiner, Laura Ainoa Marquez Galindo, works for the Institute of Legal Medicine in Almería. Neither counsel knew what that was. Be that as it may, she was provided with translated copies of the medical reports in this case. She noted that the appellant's psychiatric condition should not prevent his transfer "provided that during this transfer continuity of care indicated by the specialist responsible is guaranteed." That is a distillation of matters discussed in the reports. In a paragraph which was not translated especially elegantly she added

"In regards to psychiatric treatment in the prison system which is most suited to the evolutionary status of his pathology at the time he arrives in Spain, the criteria of the medical consultants assigned to the corresponding prison must prevail, and a report may be requested concerning the possibilities of this particular case to the director of the prison… in Almería, given that the prison health consultants are the ones who can best describe the resources available in terms of dealing with the issues raised in the attached documentation."

I take that to be the unsurprising statement that the doctors responsible for the appellant's care would have to make the necessary judgements about his treatment on his arrival.

16. The report from the prison made seven material points;

i) The treatment currently received by the appellant is available in Spain;

ii) A multi disciplinary suicide prevention protocol is in place which deals with diagnosis, treatment, social rehabilitation and therapeutic activities;

iii) The prison has a 24 hour medical service and a consultant psychiatrist who works with the prison periodically;

iv) Special medical care needs are arranged with an outside hospital. There are arrangement with a local hospital which has a specialist psychiatric unit;

v) That hospital can deal with severe symptoms of mental disorder when necessary but if long term treatment for mental disorders is required, there are two prison psychiatric hospitals in Seville or Alicante;

vi) The prison has the necessary mechanisms so that an inmate who does not speak Spanish can communicate with the various professionals, including healthcare professional, and make requests, complaints and appeals to which he is entitled;

vii) There are arrangements for physical visits from friend and relatives, telephone communication and unlimited written communication.

Discussion

17. Mr Jones was critical of the reference in the 1 July 2014 material from the President of the Almería Court that there might be circumstances in which one prisoner could be called upon to act as interpreter for another. He submits that the Spanish authorities have not provided sufficient reassurance that the appellant would be able to communicate effectively and in confidence with medical staff. He submits that the appellant's medical condition is such that the Spanish authorities should be required to provide an assurance that on arrival in Spain he would be located swiftly in a hospital and not in the prison (whatever its medical facilities). He also invites us to draw an inference that the facilities for the treatment of psychiatric prisoners are inadequate because the evidence suggests there are only two dedicated hospitals and no information has been provided regarding the number of places in them, how readily a bed might be made available for the appellant or how his trial in Almería would be managed if he were, for example, on remand in the hospital in Alicante.
18. In support of all his submissions Mr Jones relies on part of a sentence in paragraph [10(iii)] of the judgment in Wolkowicz to suggest that when there is "a specific matter that gives cause for concern" it may be necessary to get an assurance from a requesting state within the EU.
19. That reference was not designed to subvert the principle identified in the same sub-paragraph that a presumption operates that an EU state will discharge its responsibilities to prevent suicide in the absence of strong evidence, by enabling an appellant to raise 'concerns' and then set off on a quest for information and assurances. A specific matter will not give cause for concern unless it has a strong evidential foundation. It is clear from the final sentence of paragraph 10 of the Judgment that an appellant has to establish that a substantial suicide risk will not be appropriately guarded against. The appellant has come nowhere near doing so in this appeal.
20. It is an inherent feature of any suicide prevention programme that there exist mechanisms for effective communication between a prisoner and those with responsibility for him, including medical staff if necessary. Whilst many cases of extradition between member states of the EU involve returning an EU national to his home state, which would give rise to no language concerns, many do not. In my judgment strong evidence would be needed of a likely inability of the receiving state to provide a mechanism to enable communication between foreign prisoners and medical staff before any concern could arise that might call for further information from the requesting state. The evidence relied upon by the appellant on this point is exiguous. His experience in custody in 2009 and 2010 appears to have involved contact with one doctor who did not speak English in circumstances where the appellant sought no assistance with language from anyone. Whilst I do not doubt that the appellant's worries about communication are genuine, there is no evidential basis for supposing that the difficulties he fears will materialise. His own evidence carries him nowhere. In my judgment, this is not a case in which the Spanish authorities needed to provide further information on this point.
21. However, they have recently provided the further information (see paragraph [16(vi)] above) in a context which includes a direct question (see paragraph [13(ii)] above) and the possession of medical reports, translated into Spanish, replete with references to the appellant's concerns about communication. This information is more focussed than that in the ruling of 1 July, which was to the same general effect.
22. Similarly, there is no basis for being concerned that in a general sense the Spanish authorities are unable to provide appropriate care for a prisoner with a diagnosis of psychiatric illness who is at risk of suicide. This court is familiar, in the context of extradition cases and others involving removal, with detailed reports from Human Rights organisations, the EU, the European Council, the US State Department, the Foreign Office, the United Nations (and others) which explore conditions of detention in countries across the globe. One aspect which invariably features in such reports is healthcare, including the care of those with psychiatric illness. There is no hint in this appeal of any problem in Spain. The Spanish authorities could have relied upon the presumption that their facilities are adequate to cope with the sort of problem which the appellant's detention will present.
23. Mr Jones submits that the information relating to the three stages for care identified in the material from the Spanish authorities (within the prison, at a local hospital and at the two dedicated detention hospitals) should itself lead us to conclude that the appellant's extradition would be oppressive because it does not condescend to further detail: how many beds, how soon one might be made available and the like. However, in my judgment there is no need to provide detail of the sort suggested.
24. In my judgment, there is no proper basis for supposing that the Spanish authorities will not discharge their obligations to take appropriate steps to protect the appellant from the risk of suicide. His condition is not such as calls for particular assurances, albeit that they have been given. This court in Wolkowicz endorsed the observation made by Collins J in Griffin that ordinarily in cases of suicide risk medical records should be provided to the receiving state to assist in providing protection for the requested person after his extradition. What is necessary in any particular case depends on the circumstances. No doubt, in this case a copy of the appellant's medical records would be provided, in addition to the medical reports that the Spanish authorities already have. It seems to me that a copy of Dr Attard's report should also be provided, and in translation if there is any doubt that the psychiatrist who would assume responsibility for the appellant's care on his return does not read English.
25. The Spanish authorities are alert to all of the potential difficulties that the appellant's care would entail on his extradition to Spain, including those which might flow from his being separated from his wife. In the material provided both in July 2014, and in answer to the questions prompted by Sir Stephen Silber when this appeal was first listed for hearing, the Spanish authorities have confirmed that which was to be presumed of an EU state.
26. I am satisfied that the conclusion reached by the Judge was correct on the information then available, for the reasons she gave in her judgment, and has been confirmed in the light of the further material available to us. In those circumstances I would dismiss the appeal.

MR JUSTICE GOSS:

27. I agree.