Alan Cogan v The Provincial Court of Almería
| Jurisdiction | England & Wales |
| Judge | Lord Justice Burnett,Mr Justice Goss |
| Judgment Date | 22 January 2015 |
| Neutral Citation | [2015] EWHC 89 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5306/2014 |
| Date | 22 January 2015 |
[2015] EWHC 89 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Rt Hon Lord Justice Burnett The Hon Mr Justice Goss
Case No: CO/5306/2014
Daniel Jones (instructed by Hodge Jones & Allen) for the Appellant
Saoirse Townshend (instructed by CPS) for the Respondent
Hearing date: 16 January 2015
Introduction
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.
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.
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
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
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...
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...upon which Mr Grandison founds this submission appears in Wolkowicz at [10(iii)]. In Cogan v The Provincial Court of Almeria [2015] EWHC 89 (Admin), I said this of a similar submission: "19. That reference was not designed to subvert the principle identified in the same sub-paragraph that ......
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...to establish that measures to prevent a substantial risk of suicide will not be effective." 25 In Cogan v Provincial Court of Almeria [2015] EWHC 89 (Admin) further information was provided by the Spanish authorities. The appellant in that case suffered from severe depression and psychosis ......