Molloy v High Court of Dublin, Ireland (First Respondent) Westminster Magistrates' Court (Second Respondent)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon,Mr Justice Ouseley |
| Judgment Date | 22 July 2016 |
| Neutral Citation | [2016] EWHC 2199 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 July 2016 |
| Docket Number | CO/1931/2016 & CO/2094/2016 |
[2016] EWHC 2199 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Simon
Mr Justice Ouseley
CO/1931/2016 & CO/2094/2016
Mr B Keith (instructed by Kaim Todner) appeared on behalf of the Appellant
Mr J Tyler (instructed by CPS Extradition Unit) appeared on behalf of the Respondent
Introduction
This is an application for permission to appeal from the decision of District Judge Grant, made on 8 April 2016, under s.26 of the Extradition Act 2003, ('the Act').
On 7 July 2015, the High Court in Dublin ('the Judicial Authority') issued a European Arrest Warrant, ('EAW'), seeking the applicant's extradition to stand trial for four offences of possession and supply of controlled drugs, and permitting the distribution of controlled drugs on his premises in August 2002. The EAW was certified by the National Crime Agency on 24 July 2015.
Ireland is a designated category 1 territory and the proceedings are therefore governed by Part 1 of the Act.
The applicant (now aged 44) was arrested on the EAW on 28 January 2016, and appeared in court for an initial hearing the following day. He indicated that he did not consent to his extradition and the hearing was opened and adjourned with the applicant remanded in custody. Directions were made for service of evidence. Those directions, subsequently amended, were not complied with by those acting on the applicant's behalf at the time.
The full hearing took place on 29 March, when an application was made to adjourn the proceedings.
The first reason advanced was that the applicant had lost confidence in his previous solicitors and had applied to transfer his representation to Kaim Todner on 13 March. That transfer had been effected on 24 March, and this had presented Kaim Todner with difficulties in adequately preparing for the hearing.
The second reason was that his new solicitors now had authority to instruct a psychiatrist to examine the applicant and that this would happen "in the very near future". The District Judge was told that an appointment with a Psychiatrist had been made, but then cancelled with the transfer of Legal Aid.
The District Judge refused the application to adjourn the hearing. He could see no good reason why the appointment with the psychiatrist had been cancelled in the course of the transfer of Legal Aid; and the court would (in any event) be assisted by the mental health summary prepared by the Court Liaison Service at the first hearing on 29 January.
Although he refused the application, the District Judge said he would keep the matter under review. Kaim Todner's representative then indicated that in the light of the ruling he was not in a position to represent the applicant in view of the lack of time available, and withdrew.
In any event, the applicant represented himself for the rest of the hearing and gave evidence.
He described being afraid for his life (if he were returned) from what he perceived to be threats from those involved in the original alleged offences.
He also described trying to take his own life when his partner told him she was going to report him as a fugitive. This we know from other evidence was in August 2014.
The Judge noted at, page 5, of the judgment: "He has not made any attempt on his life since then."
At page 6, he added: "If he was returned to Ireland he has no evidence that he would not receive treatment for his mental health."
When considering whether it be an infringement of the applicant's rights under article 3 of the European Convention on Human Rights, ('the ECHR'), the District Judge concluded at page 7: "There is no evidence before me either that there is a substantial risk to Mr Molloy if he is returned to Ireland or that the police or prison authorities will not be able to provide him with adequate protection. I am not assisted by the press cuttings he has handed in which report the activities of high profile criminals in Ireland. Mr Molloy has happily not received any specific threats either Ireland or the United Kingdom since his arrest and he is not able to report any threats made to his family in Ireland. I reject the Article 3 challenge."
On the issue as to his mental health, which fell to be considered under s.25 of the Act, the District Judge considered the case of Polish Judicial Authority v Wolkowicz and others [2013] EWHC 102 Admin, and the principles set out in that judgment. He set out the conclusions he had reached prior to the hearing on 1 April: "There is no dispute that Mr Molloy has experienced mental health difficulties for some years and is likely to continue to require treatment. The mental health assessment dated 29 January 2016 was carried out by a Senior Forensic Mental Health Practitioner as Westminster Magistrates' Court. It was based on a brief assessment interview prior to the appearance of Mr Molloy in court on that day.
The report concluded that he was "fit to plead" and take part in the process of the court. He did not at that stage require diversion to hospital. She concludes that: "If the court is minded to remand Mr Molloy in custody, then I will notify the primary care team to highlight our concerns about his mental health so they can offer additional support. I have also opened an ACCT which will be taken to prison and I will notify safer custody in HMP Wandsworth about his ongoing concerns about his safety relating to reproductions ( repercussions) in connection to the alleged offence."
Whilst I accept there is a risk of suicide, there does not appear at present to be a high risk of suicide. There is no evidence before me that the Irish authorities will not be able to put in place proper procedures to protect Mr Molloy from the risk of suicide. I concluded prior to the hearing on 1 April that it would be neither unjust nor oppressive to extradite Mr Molloy under this section.
I considered again the application for an adjournment of the substantive hearing but concluded I had sufficient information on which to make a decision in this case and that I was able to proceed without the benefit of a full psychiatric report on Mr Molloy."
He then considered the events which occurred following the hearing on 29 March, and the information he received on 1 April. He was told (by the representative of Kaim Todner) that, following the 29 March hearing, the applicant had attempted to take his own life by hanging himself from a ligature. He had been cut down, but not taken to the hospital wing and did not require my medical attention. The court had a document in which the applicant said: "I don't feel mentally fit enough to attend. However, I would via video link accept the Court's decision."
The Judge adjourned the case to 8 April to obtain an update on the applicant's medical condition.
On 8 April, the applicant was not produced and nor was there any medical evidence from the prison. The Judge made enquiries as to why he had not attended and (after some equivocation from the prison) was told that he refused to attend. It appears that Kaim Todner had asked the prison medical department for a report and was told it would take 40 days for one to be prepared.
In any event, in the light of these developments, the Judge said at page 11 of the judgment: "I reconsidered the s.25 argument. I have no doubt that Mr Molloy is determined to frustrate his extradition from this country. Equally, I am certain that the stress of undergoing extradition is considerable."
He later added at page 12: "I have no evidence before me that the prison authorities in this country or the authorities in Ireland are not able to provide the continuous risk assessment and management that Mr Molloy needs. It is important that the Irish authorities are provided with a copy of this judgment and that all possible efforts are made to ensure that Mr Molloy's prison medical records accompany him to Ireland if he is extradited.
Although I am very concerned to hear Mr Molloy made an attempt on his life on Tuesday 29 March, I have decided not to further adjourn the case for up to date psychiatric evidence, partly in the light of my previous findings and partly in the light of Mr Molloy's specific decisions not to attend court at the last two hearings and co-operate with the court process."
The District Judge then ordered his extradition to Ireland, and remanded him in custody.
The applicant seeks permission to appeal against that decision (under s.26 of the 2013 Act) and permission to bring judicial proceedings challenging the Judge's refusal to adjourn the hearing on 29 March. The Administrative Court ordered that the two sets of proceedings be heard together in a 'rolled up' hearing once the psychiatric report had been obtained.
There is no issue as to the validity of the EAW. The questions which arise on this application relate to the applicant's rights under article 3 of the ECHR and to his mental condition.
Section 21A(1) of the Act provides: "Person not convicted: human rights and proportionality.
(1) If the judge is required to proceed under this section (…) the judge must decide both of the following questions in respect of the extradition of the person ("D") -
(a) whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998;
(b) whether the extradition would be disproportionate.
(2) In deciding...
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