Guy Savage v United States of America
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kenneth Parker,Lady Justice Rafferty |
| Judgment Date | 28 November 2012 |
| Neutral Citation | [2012] EWHC 3317 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 November 2012 |
| Docket Number | Case No: CO/12092/2011 |
[2012] EWHC 3317 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Rafferty
Mr Justice Kenneth Parker
Case No: CO/12092/2011
Mr Edward Fitzgerald QC and Mr Ben Cooper (instructed by Kingsley Napley LLP) for the Appellant
Mr Peter Caldwell (instructed by The Crown Prosecution Service) for the Respondent
Hearing date: 16 November 2012
Introduction
The United States of America seeks the extradition of the Appellant, Guy Savage, as an accused person for conduct which would constitute offences of fraudulent evasion of a restriction on the import and export of firearms and firearms components. The United States is a Category 2 territory and Part 2 of the Extradition Act 2003 ("the Act") applies.
On 30 November 2011 District Judge Nicholas Evans sent the Appellant's case to the Secretary of State for the Home Department for her decision whether to order the Appellant's extradition. This is an appeal against the decision of the District Judge.
Before the District Judge the Appellant was not represented, legal aid having been withdrawn. He pursued a number of arguments which were plainly hopeless and which have not been renewed in this Court, where he has been expertly represented by Mr Edward Fitzgerald QC and junior counsel. However, there was before the District Judge a report of Dr Susan Thompson, a consultant psychiatrist. She had concluded that the Appellant was suffering the effects of post traumatic stress disorder and from a severe depressive episode, ICD-10 code F32.2. In her opinion, he was at high risk of completed suicide, if he were extradited to the United States, especially if he lost regular contact with his daughters. Dr Thompson gave oral evidence and was cross-examined.
The District Judge rejected Dr Thompson's evidence in forthright terms. In his judgment, Dr Thompson had allowed herself to lose the dispassionate and professional approach to be expected of an expert psychiatric witness in extradition proceedings. The District Judge found her unconvincing and he neither trusted her judgment nor her conclusions.
On this appeal I do not believe that it would serve any useful purpose to examine closely the circumstances of the proceedings before the District Judge, exploring, for example, why the Appellant pursued arguments that were plainly without merit, or why he had come to represent himself. Nor do I believe that it would be appropriate critically to seek to assess the validity of the District Judge's rejection of Dr Thompson's evidence. Mr Fitzgerald frankly accepted in argument that he could not realistically expect to persuade this Court that, as the case was presented to him, the District Judge "ought to have decided a question before him at the extradition hearing differently" (section 104(3) of the Act). The Appellant can succeed only if the Court is satisfied that there is now evidence available that was not available at the extradition hearing which "would have resulted in the judge deciding a question before him at the extradition hearing differently" (section 104(4) of the Act).
Mr Fitzgerald submits that there is such evidence now available and that, in the light of that evidence, it would be unjust or oppressive to extradite the Appellant (section 91 of the Act) and/or a breach of his rights under Article 8 ECHR. The term "unjust or oppressive" requires regard to be had to all the relevant circumstances, including the fact that extradition is ordinarily likely to cause stress and hardship; neither of these is sufficient. It is not necessary to enumerate these circumstances, as they will inevitably vary from case to case. The citation of decisions which do no more than restate the test under section 91 or apply the test to facts is strongly to be discouraged (see the President of the Queen's Bench Division, giving the judgment of the Court, in The Government of the Republic of South Africa v Dewani [2012] EWHC 842 (Admin), at paragraph 73).
The Issues
There are, therefore, three issues on this appeal:
i) is the evidence upon which the Appellant now seeks to rely admissible?
ii) if so, would it be unjust or oppressive to extradite the Appellant, and/or
iii) would it be a breach of his rights under Article 8 ECHR to extradite him?
For reasons that will become apparent, the first issue is not independent but merges with the second and third issues.
Issue 1: The Admissibility of the Evidence
As to the criteria for the admission of further evidence, in Three Hungarian Judicial Authorities v Roland Fenyvesi Kalman Fenyvesi [2009] EWHC 231 (Admin) (" Fenyvesi"), Sir Anthony May, at paragraphs 32 and 35 found:
"32. In our judgment, evidence which was "not available at the extradition hearing" means evidence which either did not exist at the time of the extradition hearing, or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained. If it was at the party's disposal or could have been so obtained, it was available. It may on occasions be material to consider whether or when the party knew the case he had to meet. But a party taken by surprise is able to ask for an adjournment. In addition, the court needs to decide that, if the evidence had been adduced, the result would have been different resulting in the person's discharge.
…
35. Even for defendants, the court will not readily admit fresh evidence which they should have adduced before the district judge and which is tendered to try to repair holes which should have been plugged before the district judge, simply because it has a Human Rights label attached to it. The threshold remains high. The court must still be satisfied that the evidence would have resulted in the judge deciding the relevant question differently, so that he would not have ordered the defendant's discharge. In short, the fresh evidence must be decisive."
In Fenyvesi, at paragraph 34, Sir Anthony May set out the effect of the Human Rights Act 1998 on the interpretation of the appeals provisions in the 2003 Act, referring to the judgment of Latham LJ in Miklis v Lithuania [2006] EWHC 1032 (Admin):
"34. Section 29(4) of the 2003 Act is not expressed in terms which appear to give the court a discretion; although a degree of latitude may need to be introduced from elsewhere. As Latham LJ said in Miklis, there may occasionally be cases where what might otherwise be a breach of the European Convention on Human Rights may be avoided by admitting fresh evidence, tendered on behalf of a defendant, which a strict application of the section would not permit. The justification for this would be a modulation of section 29(4) with reference to section 3 of the Human Rights Act 1998."
Fenyvesi is equally applicable to appeals under Section 104(4): see Richen Turner v Government of the United States of America [2012] EWHC 2426 (Admin) (" Turner "), by Aikens LJ at paragraph 31.
Mr Peter Caldwell, on behalf of the Respondent, contends that the further evidence was either available before the District Judge or at least could have been made available by the exercise of due diligence. In particular, the Appellant in this appeal has relied heavily on a further medical report from a second consultant psychiatrist, Dr Forrester. Dr Forrester states the same conclusions as that reached by Dr Susan Thompson regarding the Appellant's clinical depression and high risk of suicide, but the manner in which Dr Forrester has reached his conclusions makes his evidence significantly less vulnerable to the well founded criticisms made by the District Judge of Dr Thompson's evidence. Mr Caldwell submits that, with the exercise of reasonable diligence, Dr Forrester's evidence could have been put before the District Judge.
I see considerable force in Mr Caldwell's submission. It seems to me as a general rule that if a party to extradition proceedings relies upon an expert witness and the chosen expert is discredited or substantially undermined at the extradition hearing, the party in question cannot reasonably expect to repair the damage on appeal by calling a further expert, who would furthermore have the advantage of knowing what had happened below so as to appreciate how most effectively to shore up the deficiencies exposed in the earlier expert evidence. However, without wishing to give encouragement to parties in future appeals, I was ultimately persuaded that I should not exclude the further evidence by reason only of the circumstance that it might with reasonable diligence have been made available before the District Judge. I am prepared to accept that, given how matters had proceeded below and the Appellant's depressive condition, the further evidence might not reasonably have been available and that in any event the Court would be disinclined to rule out on the above basis up-to-date and competent medical opinion regarding the nature and extent of suicide risk in the context of an appeal under Section 91 of the Act. However, that leaves out of account the critical and necessary condition of whether the further evidence is "decisive", to which I now turn.
Issue 2: In the Light of the New Evidence, Would it be Unjust or Oppressive to Extradite the Appellant ?
The relevant principles where it is alleged that the risk of suicide would render extradition oppressive have been recently set out in Turner, by Aikens LJ, at paragraph 28.
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