John O'Donnell v High Court of the Republic of Ireland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 03 March 2022 |
| Neutral Citation | [2022] EWHC 458 (Admin) |
| Docket Number | Case No: CO/160/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 458 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Fordham
Case No: CO/160/2021
Ania Grudzinska (instructed by Hollingsworth Edward) for the Appellant
Nicholas Hearn (instructed by CPS) for the Respondent
Hearing date: 15/2/22
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Introduction
This is an appeal in an extradition case. Permission to appeal was granted by Griffiths J on 28 July 2021 and the hearing was in-person. The Appellant is aged 58 and is wanted for extradition to Ireland. That is in conjunction with an accusation Extradition Arrest Warrant issued on 15 June 2020 and certified on 2 July 2020. It relates to 17 counts (each described as a sample count to cover a distinct two month period) of alleged sexual assault by the Appellant on his stepdaughter between May 2016 and January 2019, when she was aged 12 to 14. The maximum sentence, if the Appellant were convicted in Ireland, is 14 years imprisonment. The Appellant denies the allegations and says they are malicious. Extradition was ordered by DJ Jabbitt (“the Judge”) on 12 January 2021, after an oral hearing on 12 November 2020 which resumed on 21 December 2020. In this appeal, two grounds are relied on to resist extradition: section 25 of the Extradition Act 2003; and Article 8 ECHR.
Fresh evidence and a fresh evaluation
At the first of the two hearing dates (12.11.20) the Judge heard evidence and submissions. He then decided to adjourn the case to resume on the second date (21.12.20). That was so that the Appellant would have the opportunity to instruct a psychiatrist to give expert evidence about his mental health condition and the impact of his extradition in terms of his mental health. In the event, the Appellant was unable to instruct a psychiatrist (I was told this was due to unaffordability of such a report) and the hearing resumed. In the context of the application for permission to appeal which was filed with this Court (18.1.21), an order was made (12.2.21) for an extension of the legal aid representation order so as to allow an expert psychiatrist to be instructed within the legal aid arrangements for this appeal. Dr Jeremy Berman, consultant forensic psychiatrist, duly provided the Court with an expert report dated 8 June 2021 (“Dr Berman's Report”), to the contents of which I will need to come. Mentioned within Dr Berman's Report is a press article from the Irish Times, dated 23 March 2021, entitled “Gardai in three-hour standoff with staff at gates of Central Mental Hospital” (“the Irish Times Article”). Also provided by him to the Appellant's solicitors (as Ms Grudzinska told me), and also placed before this Court, is a paper by G. Gulati and B.D. Kelly from the Irish Medical Journal, published (as Mr Hearn told me) on 14 March 2018, entitled “Diversion of Mentally Ill Offenders from the Criminal Justice System in Ireland: Comparison with England and Wales” (“the IMJ Paper”). In granting permission to appeal, Griffiths J gave the Appellant permission to adduce, as fresh evidence on this appeal: (i) Dr Berman's Report; (ii) the Irish Times Article; and (iii) the IMJ Paper. Griffiths J made clear, in giving permission, that the “weight” to be placed on those materials would be a matter for the Judge hearing this substantive appeal. It is common ground, in the light of that fresh evidence and in light of the permission to adduce it, that it is appropriate for this Court to conduct a ‘fresh assessment’ of both grounds of appeal, in which the mental health implications of extradition for the Appellant serve as a central feature. That is what I have done.
Dr Berman's Report: the Appellant's fitness to plead and stand trial
One discrete topic addressed in Dr Berman's Report is the Appellant (“Mr O'Donnell”)'s fitness to plead and stand trial. Dr Berman's Report says this:
Assessment of Fitness to Plead and Stand Trial
Mr O'Donnell confirmed he is charged with multiple child sex offences and the alleged victim is the daughter of his former partner. She was 12 when the alleged offences were first committed. He was aware that each offence could attract a maximum sentence of 14 years. He also confirmed that he was aware the police were investigating the alleged offences and he moved to the UK in April 2019 and was not arrested and charged until December 2019. Although Mr O'Donnell told me he was unfamiliar with the Irish court system, or the UK Crown Court trial process, he understood that by entering not guilty pleas then there would be a trial. He also understood that the prosecution would rely on the evidence of the complainant. He was able to retain and understand my explanation of the roles of the key courtroom personnel in a crown court trial .
Dr Berman returned to this topic, in the “Opinion” section of the report:
8. I have been asked the hypothetical question whether Mr O'Donnell would meet the Pritchard criteria were the criminal proceedings to be held in England and Wales. In my clinical opinion, based on the balance of probabilities, Mr O'Donnell is fit to enter a plea and stand trial according to R v Pritchard (1836) and subsequent case law. The most recent relevant case law with respect to his fitness to enter a plea is ( R v M (John) EWCA Crim 3452 [2003]) in which the defendant on the balance of probability has to be capable of the following six things: (1) Understanding the charges; (2) Deciding whether to plead guilty or not; (3) Exercising his right to challenge a juror; (4) Instructing solicitors and counsel; (5) Following the course of proceedings; (6) Giving evidence in his own defence.
9. I was satisfied he was capable of all six things .
10. Were the case to be tried in England or Wales, Mr O'Donnell would be considered as a vulnerable defendant, as set out in Criminal Practice Directions – October 2015 (as amended April 2016, November 2016, April 2018, and May 2020) on the account of him suffering from a mental disorder, as defined by the Mental Health Act 1983 as amended. He would require regular and frequent breaks, given his reported history of impaired concentration and he is likely to be distressed by the nature of the prosecution's evidence against him and being cross examined .
The IMJ Paper and Irish Times Article: ‘diversion’ to a secure hospital
A distinct strand within the fresh evidence concerns capacity within secure hospital units in Ireland, for a remand prisoner or sentenced prisoner whose mental health condition (including suicide risk) is such that they are assessed as needing to be ‘diverted’ from prison to such a secure hospital. What emerges from the IMJ Paper, the Irish Times Article, and that part of Dr Berman's Report which references the Irish Times Article, is this. As the IMJ Paper recognises, for both remand prisoners and convicted prisoners within an Irish custodial setting there are arrangements so that a prisoner with a mental health condition can be the subject of “assessment by visiting psychiatrist and prison in-reach team”, with the “potential for diversion if the prisoner is very unwell”. “Diversion”, as Dr Berman explains, is something that would happen to a prisoner already on “a prison healthcare wing”, whom the “prison in-reach team would consider diverting … to a secure hospital”. An example, discussed by Dr Berman, is the situation of a prisoner who – notwithstanding “enhanced observations” on the prison healthcare wing “to minimise the risk of him attempting to take his own life” – presented a “suicide risk” which “could not be managed within a prison setting”. As Dr Berman also explains: “As in the UK, Irish mental health law makes provisions for the diversion of remand prisoners to hospital for urgent treatment”. The IMJ Paper describes the “Central Mental Hospital” (“CMH”) as the sole secure hospital to which remand prisoners can, legally and directly, be diverted from an Irish prison. In relation to diversion and sentenced prisoners, the IMJ Paper describes the “limited access to secure beds in Ireland” which “impacts on the availability of treatment”, observing that “a lack of Intensive Care Regional Units (ICRU) in Ireland … impacts negatively on psychiatric diversion from … custody in Ireland”. The “three-hour standoff” described in the Irish Times Article involved a remand prisoner suffering from paranoid schizophrenia, whom a court (in mid-June 2021) had ordered be taken to CMH for treatment. The Irish Times reported that the “lack of beds in the CMH has been a serious issue for many years”, that there was a typical waiting list of “20–30 prisoners waiting on a bed there at any time”, and that the CMH had said it was at “100 per cent bed occupancy” and that “ Covid-19 had negatively impacted capacity”. In relation to this topic, the relevant paragraphs within the “opinion” section in Dr Berman's Report are these:
14. Were Mr O'Donnell to be remanded and extradited, then it is likely this would maintain or exacerbate his depression. He would also be deemed to be a vulnerable prisoner and given his reported intention to commit suicide, it is very likely that he will require to be transferred to a prison healthcare wing and placed on enhanced observations to minimise the risk of him attempting to take his own life. A prison in-reach team would consider diverting him to a secure hospital in Eire pre-trial, if the suicide risk could not be managed within a prison setting .
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18. As in the UK, Irish mental health law makes provisions for the diversion of remand...
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