Hutton v The Government of Australia

JurisdictionEngland & Wales
JudgeLord Justice Scott Baker
Judgment Date20 March 2009
Neutral Citation[2009] EWHC 564 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: C0/8319/2008
Date20 March 2009

[2009] EWHC 564 (Admin)





District Judge Purdy

Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Scott Baker and

Mr Justice Silber

Case No: C0/8319/2008

Stephen Albert Hutton
The Government of Australia

John Jones (instructed by PPG Criminal Law) for the Appellant

Melanie Cumberland (instructed by Crown Prosecution Service) for the Respondent


Hearing date: 4 February 2009

Lord Justice Scott Baker

This is the judgment of the court.


1. The Australian Government seeks the extradition of Stephen Albert Hutton for the murder of his former partner Sandra Teresa White in August 1985. The central issue is whether it would be unjust or oppressive to extradite him in the light of (i) the passage of time and (ii) Mr Hutton's mental health. He suffers, and indeed has suffered for many years, from paranoid schizophrenia.


2. This is an appeal from two decisions of District Judge Purdy in the City of Westminster Magistrates Court. The first was on 8 February 2008. The district judge decided under s.91 of the Extradition Act 2003 (“the 2003 Act”) that it would not be unjust or oppressive to extradite the appellant to the State of Victoria in Australia in the light of his mental health. The second was on 11 July 2008 when he decided:

(i) extradition would not be an abuse of process;

(ii) his extradition was not barred by passage of time under s.82 of the Act;

(iii) his extradition would not be in breach of articles 3 or 5 of the European Convention on Human Rights under s.87 of the Act.


The material facts


3. The relevant facts are that the appellant, who is a British citizen aged 55, has a long history of mental illness. He has suffered for many years from paranoid schizophrenia with hospital admissions both in Australia and in the United Kingdom. He has on occasion been compulsorily detained in the United Kingdom.


4. The Australian authorities seek his extradition to face trial for murder by strangling Sandra Teresa White on the night of 11/12 August 1985 i.e. over 23 years ago. Ms White's burnt remains were discovered on 12 August 1985. The appellant was suspected of the crime at the time and spoken to under caution on 16 August and 25 September 1985, but he declined to be formally interviewed.


5. On 25 October 1986 he left Brisbane on a Thai Airlines flight for Thailand and he has not returned to Australia since. He was perfectly entitled to leave Australia and, absent any order for extradition, is under no obligation to return. An inquest in Australia recorded the cause of death as unresolved.


6. In 1990, following a road accident, the appellant was sectioned and admitted to St Luke's Psychiatric Hospital London. Whilst detained he is said to have confessed to killing Ms White. This information was passed first to the United Kingdom police and then the Australian police. On 21 December 1991 he declined to answer questions to the British police, and the Australian police filed the case as unresolved. However, Ms White's son, Tim White, persuaded the Australian police to reopen the case in February 2005.


7. Following a request to this country for mutual legal assistance the appellant was interviewed on 17/18 May 2007 under caution at a Hampshire police station. The admissions he made in these interviews resulted, so it is said, in Victoria's law enforcement authority having for the first time sufficient evidence to establish a prima facie case against him, and they accordingly commenced extradition proceedings.


Sections 82 and 91 of the 2003 Act


8. Sections 82 and 91 of the 2003 Act lie at the heart of this appeal.


Section 82, as amended, provides:

“A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have (a) committed the extradition offence (where he is accused of its commission) or (b) become unlawfully at large (where he is alleged to have been convicted of it)….”


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.”


9. While the judge dealt with the s.91 issue as a discrete issue on 8 February 2008, he made it clear that he was aware that s.91 remained applicable throughout the whole of the extradition hearing. However, the appellant's condition for practical purposes remained unchanged in July 2008. At both hearings he was in remission and stable. Both sections 82 and 91 focus on whether it would be unjust or oppressive to extradite the accused person but for different reasons, passage of time in the case of s.82 and physical or mental condition in the case of s.91. In practice, however, in the present case the reasons are interlinked.


10. The appellant's case before the district judge was, in summary, that if extradited there was a 60–65% chance his mental condition would relapse and that this risk made it unjust or oppressive to extradite him to face a trial after so many years. The respondent's answer was that whether the risk of relapse became a reality was speculative and, even if it did, Australia was as well equipped as the United Kingdom to provide the necessary psychiatric treatment. Further, Australia has similar safeguards to those in this country relating to fitness to plead and the trial process for ensuring that he has a fair trial.


11. The district judge heard evidence from Dr Alfonso Ceccherini-Nelli, the lead consultant in general adult psychiatry at Ridgewood Centre, Surrey and Borders Partnership NHS Trust based in Frimley. He is approved for the purposes of s.12 of the Mental Health Act 1983. The district judge said of his evidence:

“To my mind the evidence given live was a most welcome exposition of genuine expertise tempered with an acute awareness of the duty to provide impartial balanced material to assist the court. I was most impressed at his measured and considered stance in answering both counsel and me.”


12. The district judge also had a letter from the appellant's general practitioner, Dr Alison Thomas, who said he continued to be compliant with medication and remained stable and well on his drug regime. The district judge summarised the medical position as follows. The emphasis is that of the district judge:

“The more stress the more likely to relapse is a common trait and few patients make 100% recovery if they relapse. It is “impossible” to predict who will recover just as much as who may relapse. He put the risk of relapse, if the current successful treatment regime is disturbed, as “significant” quantified as 60–65% chance, taking in general terms 3–12 months to “obtain adequate remission”. At present Stephen Hutton is fit to plead but it is difficult to quantify how delicate that balance is. He was very emphatic in stressing the treatment regime is not simply drugs which could be increased to an extent to reduce the risk of remission. He said “it is not as simple as saying the treatment regime can be replicated as social environment cannot be even if drugs can”. Social environment is deemed very much part of treatment. “Extradition is obviously an unquestionable stress”. That said his current state is “relatively good well controlled and stable but we never know what is going to happen tomorrow it is really day by day”. To me he said the “current situation is almost ideal given the seriousness of the illness.”


The district judge's reasoning is in his conclusion at page 4 of his 8 February judgment. He said:

“There is no dispute Stephen Hutton is suffering from long established paranoid schizophrenia. However, his condition is stable and under control notwithstanding that these extradition proceedings have been running some months. Ms Spearing argues this case is unique in that Stephen Hutton, unlike Davies and Warren, is currently “fit” for trial. Her argument is the 60–65% risk of relapse if removed from his current treatment regime will be “unjust” and “oppressive” albeit involving a degree of speculation as to any relapse and if so its treatment. Such a position is in my judgment fatal to any discharge pursuant to S.91. I am being invited to discharge a stable “fit” person in respect of an allegation of murder fearing he might or even may risk a relapse. That does not, in my judgment, come within S.91 which requires an actual current state of affairs. If I'm wrong I must be entitled to acknowledge that Australia has medical facilities available and the trial process can accommodate the kind of speculative difficulties that may arise. If Warren was not discharged on the basis the New York Court was the proper forum to determine his fitness for trial I fail to see how I can deny the Australian Court in Victoria the same privilege, the more so as, at present, there is no condition causing concern. Accordingly I reject the application to discharge pursuant to S.91 (3) (a) Ex. Act 2003.”


13. The district judge's references to Davies and Warren were to Re Davies [1998] COD 1.83 (30 July 1991) and R (Warren) v Secretary of State for the Home...

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