Arshad v Court of Magistrates Malta
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone,Lord Justice Treacy |
| Judgment Date | 01 July 2014 |
| Neutral Citation | [2014] EWHC 2515 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/119/2013 |
| Date | 01 July 2014 |
[2014] EWHC 2515 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Treacy
Mr Justice Supperstone
CO/119/2013
Mr D Sternberg (instructed by ABV) appeared on behalf of the Appellant
Mr N Hearn (instructed by CPS) appeared on behalf of the Respondent
This is an appeal by Mr Mohammed Arshad against an order of District Judge Purdy made on 2 January 2013 for his extradition to Malta. He is sought under a European Arrest Warrant to stand trial in relation to an allegation of being involved in the importation of cannabis into that country. Part 1 of the Extradition Act 2003 applies to these proceedings.
The appeal revolves primarily around the Appellant's mental health. It came on for hearing before a Divisional Court (Toulson LJ and Underhill J) on 11 March 2013, but was adjourned for further medical reports. Following receipt of those reports, there was a hearing on 9 July before a differently constituted Divisional Court (Gross LJ and Cranston J). In the light of the recommendations contained in those reports for a further assessment some months hence, the court felt they had no choice but to adjourn the matter. They ordered that further reports should assess the Appellant's progress and suicide risk, proffer a prognosis and, in particular, address the Appellant's fitness to plead at trial given his compulsory detention under section 3 of the Mental Health Act 1983. At the adjourned hearing on 14 November, the court (of the same constitution) considered those further reports. The judgment of the court was delivered on 20 November 2013.
The decision of the District Judge is challenged on three grounds. First, it is said that the judge was in error in finding that the Appellant's extradition was not unjust or oppressive within the meaning of section 25 of the 2003 Act by reason of the condition of his mental health. The second ground is related to the first. It is that the judge erred in finding that the Appellant's extradition was compatible with his rights under Article 3 of the European Convention on Human Rights due to conditions for mentally ill and suicidal prisoners in Malta. The third ground of appeal is that extradition would be incompatible with the Appellant's rights under Article 8 of the Convention because of his unusually close bond with his mother who is in a poor state of health and suffers from cancer.
At the hearing on 9 July, the court stated that it would dismiss the appeal on the grounds of Articles 3 and 8 of the Convention. At the hearing on 14 November, the Appellant's arguments in respect of Articles 3 and 8 were renewed and the court was invited to revisit their conclusions. However, there was nothing in the further material that persuaded the court to do so. The court did, however, differ from the District Judge on the issue as to whether the Appellant's extradition would be unjust or oppressive by reason of the condition of his mental health. They did so on the basis that there was material before the court that was significantly different to that which was before the District Judge.
In accordance with the court's order of 9 July, Dr Horne, a psychiatrist instructed by the Appellant's representatives, and Dr Johns, a psychiatrist instructed by the CPS for the Respondent, prepared a joint report on 31 October 2013. The court (at paragraph 28) notes that unlike the previous joint report in June 2013, there are no areas of disagreement in this report.
The report states that the Appellant suffers severe mental health conditions. He is suffering from a form of schizophrenia with a secondary depressive disorder and an unspecified personality disorder with emotionally unstable and histrionic traits. His condition has worsened since June 2013. He has made a serious and determined attempt at suicide. The risk of suicide remains high. His detention under section 3 of the Mental Health Act to allow for treatment is appropriate. He should not attend court for extradition now since this would interfere with his treatment.
The joint report states:
"6. The Appellant does not meet the Pritchard criteria and is not fit to plead.
7. If he were extradited now, the risk of suicide would be likely to increase further.
8. Even if he complies with [his medication], it is less likely than not that he would show a significant improvement in six months."
At paragraph 38, the court stated:
"The severe condition of the Appellant's mental health, the high risk of suicide assessed both doctors, his unfitness to plead and his current treatment and prognosis have led us to conclude that his extradition at this point would be oppressive."
The court continued:
"The prognosis is not good, but both doctors seem to agree that if he is to improve it should be evident in 6 to 12 months."
That being so, it was the view of the court that these various factors pointed to the appropriate course being to adjourn the proceedings under section 25(3)(b) of the 2003 Act so that the Appellant could continue to be treated at the Tindall Centre where he was detained to see if he would recover. The court ordered that a further joint report on the Appellant's state of mental health be drafted by Dr Horne and Dr Johns commenting on the Appellant's progress since the last joint report of 31 October, his current prognosis, suicide risk and his fitness to plead in the light of his compulsory admission to hospital under section 3 of the Mental Health Act.
The court further ordered that the appeal be re-listed before a Divisional Court on 20 May 2014 for a further hearing confined to the first ground of appeal, namely, the Appellant's mental health under section 25 in the light of the court's judgment of 20 November 2013.
There is before this court the joint expert psychiatric report that was requested, which was prepared on 4 June 2014. The report records (at paragraph ) that on 10 March 2014, the Appellant was formally discharged from the ward where he had resided on long term leave, but he remained and still remains under the provisions of section 3 of the Mental Health Act and can be recalled to the hospital in the event of that being necessary.
At paragraphs 38 to 46 of the report, Dr Horne and Dr Johns set out what they describe as "areas of agreement". They record, insofar as material, as follows:
"38.[The Appellant] continues to show signs of severe mental illness in the form of schizophrenia with a secondary depressive disorder and an unspecified personality disorder with emotionally unstable and histrionic traits.
39. His condition has not improved since discharge from hospital.
41. There continues to be a serious risk of suicide.
42. He does not meet the Pritchard criteria for fitness to plead. However, he is fit to attend court.
43. If in pursuit of his extradition he is parted from his mother, his mental state is likely to deteriorate further. Moreover, he has stated consistently that he would kill himself if he were separated from her in pursuit of his extradition.
44. We believe that if moves were made to extradite him, the risk of suicide is more likely than not.
45. The prognosis is now poorer, in that he has shown signs of a serious psychotic illness for at least three years with no or little response to admission and medication. The likelihood of any material improvement within the next six months is very low indeed. We see no grounds for predicting a significant improvement in the next two years."
There is, in addition, before the court, a third report prepared by Dr Horne dated 4 June 2014 in which he adds that the options that are likely to produce a substantial improvement in the treatment of the Appellant's mental illness have been exhausted. Cognitive behavioural therapy could be tried, but he would expect it to take at least two years, if the Appellant were able to engage with it. Even then, he would expect at best a moderate rather than a substantial improvement in his condition.
Following a hearing on 13 December 2013, the Divisional Court...
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