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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Edwards v Government of United States of America [2013] EWHC 1906 (Admin) (04 July 2013) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2013/1906.html Cite as: [2014] 1 WLR 1532, [2013] 4 All ER 871, [2014] ACD 9, [2013] EWHC 1906 (Admin), [2014] WLR 1532 |
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE WILKIE
____________________
JOHN MICHAEL EDWARDS |
Appellant |
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- and - |
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GOVERNMENT OF UNITED STATES OF AMERICA |
Respondent |
____________________
Mark Summers (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 20 June 2013
____________________
Crown Copyright ©
Mr Justice Wilkie:
Introduction
Factual and procedural background
The medical reports
"I am of the opinion that he has exhibited a substantial decline in his cognitive functioning, particularly over the last five months. Of the available possibilities, the most likely cause for this cognitive decline would be a progressive dementia. The white matter changes on neuroimaging, and the seemingly quite rapid cognitive decline over the last few months, would be most consistent with a dementing illness of vascular origin. This would be consistent with his history of maturity-onset diabetes and hypertension. I therefore consider that, on a balance of probabilities, Mr Edwards is now exhibiting a Vascular Dementia
In addition to a dementing illness, Mr Edwards may be suffering from generalised epilepsy although I cannot be sure about this. As a consequence of his cognitive impairment by reason of a dementing illness, I consider that Mr Edwards would now be unable to participate effectively in any trial process. In particular, he would lack sufficient powers of sustained concentration and sufficient cognitive capacity to recall relevant information from memory I do not think that these impairments could be improved through any form of external support.
Mr Edwards is currently being managed in a prison environment even though he is in cognitive decline and remains prone to episodic loss of consciousness It seems most unlikely that he could now live independently, as he would require considerable prompting or support to manage everyday tasks. I consider that his care needs are such that transfer to a Care Home would now be the most appropriate course of action
Given Mr Edwards' current presentation I consider that his impaired powers of sustained concentration and difficulties with recall from memory (particularly more recent memory) would effectively preclude him from participating effectively in any trial process."
"59. On mental state examination, he was muddled about some dates in his business chronology, but recalled other details apparently well. He shows no signs of current mental illness and is not depressed. I found that on brief testing that he showed no signs of cognitive impairment and in particular, he scored 30 out of 30 in the mini mental state examination. I found no evidence that he was malingering.
60. In my opinion, Mr Edwards does not show signs of a dementing illness. If this had first occurred say in 2005, I expect by now he would have shown a chronic irreversible deterioration and this is not the case.
61. I note the recent diagnosis of epilepsy by an experienced consultant neurologist. It is well recognised that following an epileptic episode, an individual can show what is called postictal confusion which usually lasts a few hours but can be a day or so. I believe that Mr Edwards is experiencing episodes of epilepsy leading to postictal confusion, which then resolves. I think it highly probable that these episodes of postical confusion, account for his apparent patchy impairments in memory. I think it entirely possible that he also experiences very minor episodes of epilepsy without falls, which could nevertheless lead to postictal confusion.
62. However, I have asked for the more recent prison records, which may demonstrate episodic impairment of memory after epileptic episodes. I also note that the results of a further MRI brain scan and EEG are not available to me.
63. I recommend review that his Consultant neurologist should be asked to review the above investigations and the dose of anti-convulsant medication.
64. With respect, I do not agree with the diagnosis of dementia made by Dr Campbell, nor do I agree that Mr Edwards' medical problems cannot be safely managed in prison.
Medico legal issues
65. He clearly meets the Pritchard Criteria. He is fit to discuss matters with his legal advisors and to attend court and to participate in a legal process. This is with the caveat that should he experience an episode of an epileptic attack then this may be followed by confusion, which may produce apparent occasional defects in memory."
The respective submissions on the state of the evidence
The Appellant's submissions
The Respondent's submissions
The Appellant's response to the Respondent's contentions on authority
The legislation and authorities
The Extradition Act 2003
"(1) If the judge is required to proceed under this section (by virtue of section 84, 85 or 86) he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of theHuman Rights Act 1998.
(2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge.
(3) If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited "
Section 91 provides:
"(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 "
Section 103 provides:
"(1) If the judge sends a case to the Secretary of State under this Part for his decision whether a person is to be extradited, the person may appeal to the High Court against the relevant decision.
(4) An appeal under this section may be brought on a question of law or fact "
Section 104 provides:
"(1) On an appeal under section 103 the High Court may
(a) allow the appeal
(b) direct the judge to decide again a question (or questions) which he decided at the extradition hearing
(c) dismiss the appeal.
(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied
(4) The conditions are that
(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing
(b) the issue or evidence would have resulted in the judge deciding a question before him at the extradition hearing differently
(c) If he had decided the question in that way, he would have been required to order the person's discharge "
"37. In those circumstances, without disagreeing with the views of the doctors in this country as to the Claimant's current condition, the Secretary of State, in my view, was entitled to conclude that there were genuine issues to be tried. This case is far removed, in my view, from the circumstances in the case of Re Davies. In that case there was no issue as to the Applicant's mental condition. There was no evidence suggesting that there was any possibility of recovery, and no evidence, in contrast to this case, as to how long it would take before he was tried in Canada.
38. In the light of the conclusion that there were genuine issues as to the Claimant's fitness to be tried, the Secretary of State then had to consider whether it was proportionate to order his return, particularly in the context of Article 8
39. In my judgment, once the Secretary of State had concluded, as he was entitled to do, that there were genuine issues as to the Claimant's fitness to stand trial, and as to his future treatment, he was entitled to conclude that those issues should be determined by the court in New York in the course of a fair process, and having been afforded fair and careful medical treatment within a limited period of time. In those circumstances the Secretary of State was entitled to conclude that the risk of deterioration did not outweigh the need for an accused to stand trial in respect of serious accusations. He was entitled, for those reasons, to conclude that it was not wrong, unjust or oppressive to order the Claimant to be returned for trial in New York "
"40. I wish only to emphasise my main reasons for doing so. The object of extradition is to return a person who is properly accused or has been convicted of an extradition crime in a foreign country to face trial or to serve his sentence there. This includes the determination of whether he is fit to be tried, an issue which, under criminal justice systems of both this country and New York, is decided by the court, and not by members of the executive or the medical profession. The extradition process is only available for return to friendly foreign states with whom this country has entered into either a multi or a bilateral treaty obligation involving mutually agreed and reciprocal commitments. Mr Perry, on behalf of the Claimant, accepts that there is a strong public interest in respecting such treaty obligations. Such international cooperation is all the more important in modern times, when cross border problems are becoming ever more common, and the need to provide international solutions for them is ever clearer.
42. It will not generally be unjust to send someone back to face a fair process of determining whether of not he is fit to face trial. I accept that it may be wrong or oppressive to do so if the inevitable result will be that he will found unfit. But even in those circumstances, there may be countervailing considerations. For example, if there is the counter part of our process in the other country, where a person may be found to have committed an act which would have otherwise been a serious crime, particularly if it were to be a crime of violence involving risk to the public, and if it would be then appropriate to detain the person for medical treatment, it could be in the public interest to enable that process to take place. That is not this case, but I would not wish to accept that it is inevitably going to be oppressive to return somebody in such circumstances."
" Normally, in circumstances where there is an issue as to whether the Appellant is fit to stand trial or not, the court will issue an order for extradition and takes the view that the issue of unfitness to stand trial is a matter to be dealt with by the requesting country. "
"No point is taken in this case that the procedures available in Spain for determining the issue of fitness to plead is any way unfair or disadvantageous to this Appellant. It is well to remember that the condition in Section 25 is not whether the Appellant is suffering from cognitive impairment or from a mental illness or even whether he is unfit to stand trial. It is whether his mental condition is such that it would be unjust or oppressive to extradite him."
"29. In this case, there is an issue in my judgment as to whether this Appellant is fit to stand trial or not. That is an issue which can be properly and fairly dealt with in the court of the requesting country. The allegation levelled against these Appellants, and for this particular purpose against Mr Hewitt is particularly serious. There is a very strong public interest in that matter being tried and dealt with appropriately in the Court of the requesting country.
30. For these reasons, I would dismiss Mr Hewitt's appeal "
"In relation to issues of unfitness to plead because of the physical or mental condition of the extraditee, that is a matter for the requesting court to determine in the normal course of things. However, if it is clear to the requested court that the extraditee would indisputably or inevitably be unfit to plead or to stand trial, then it would be oppressive to extradite that person "
"5 If one accepts the law that it is not a matter for this Court but a matter for the requesting State, namely the Court in Austria, to determine the issue of fitness to plead, then again one can see that there is no need to reopen the extradition. But both these questions the one of fact and the one of law are in issue
6. The issue of law arises because, by Section 25 of the Extradition Act, the court is required to order a requested person's discharge if the mental or physical condition of the person is such that it would be unjust or oppressive to extradite him The court in Lynch 2010 EWHC109 (Admin) took the view that it was a matter for the courts of the requesting State to consider fitness to plead unless the person requested would indisputably or inevitably be unfit to plead That was based upon an earlier decision of this court in Warren which itself took that view, although the court in the earlier case was not concerned with Section 25. It is not clear whether the issue was ever debated in Lynch. It seems to me, having regard to the purpose and context of the framework directive, that the decision of this court in L cannot be identified as being plainly wrong. Indeed I take the view that it is correct. There is no suggestion whatever that Austria would be incapable or would not have in place a system for determining whether (one doctor) is right and that this is merely a requested person's attempt, last ditch, to avoid extradition or whether (the other doctor) is correct."
" The second aspect of this ground of appeal is based on the evidence of Dr Grounds, consultant psychiatrist. In his judgment, the Recorder reviewed and evaluated this evidence with obvious care. In determining this issue, he referred to relevant authority - Boudhiva and Warren. He noted that the Appellant's mental condition could be canvassed in any application for bail and, further, that his fitness for trial would be a matter to be determined by the relevant Spanish judicial authority We find no error in the approach, assessment or conclusions of the Recorder as regards this ground of appeal."
"We do not consider that we should determine, as the position currently stands and in the light of our decision in relation to s.91, what conclusion on the issue of fitness for trial might be open to the court in South Africa at an appropriate time, given the limited nature of the respects in which the Appellant is unfit to stand trial and the prospects of the Appellant's recovery"
(The Court then referred to a number of cases including Davies, Warren and Lynch)
"It may be necessary for this to be done at a later stage in these proceedings, if there is disagreement as to the extent of the Appellant's recovery. If that question arises, then it may also be necessary to determine the merit of the argument advanced on behalf of the Appellant that fitness to plead proceedings in South Africa are not criminal proceedings and will not result in a conviction "
"Whether or not the applicant's extradition to the United States would breach Article 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-trail period, about which very little information has been provided It is also unclear how long the applicant might expect to remain or 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 order. 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.
57 Therefore, in 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 deterioration would be capable of reaching the Article 3 threshold "
Accordingly, the court held that there would be a violation of Article 3 in the event of the applicant's extradition but solely on account of the current severity of his mental condition. It decided to indicate, pursuant to Rule 39 of the Rules of the Court, that it was desirable not to extradite the Applicant until such time as the present judgment of the Court became final or until a further order.
The Appellant's submissions on the law
The Respondent's submissions as a matter of law
My conclusions on this issue
Conclusion
Lord Justice Laws: