R (Andrew Warren) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MOSES,LADY JUSTICE HALE |
| Judgment Date | 14 March 2003 |
| Neutral Citation | [2003] EWHC 1177 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5405/2002 |
| Date | 14 March 2003 |
[2003] EWHC 1177 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand London WC2
Lady Justice Hale
Mr Justice Moses
CO/5405/2002
MR DAVID PERRY (instructed by Barker Gillette Solicitors, Cavendish Street, London, W1G 8TF) appeared on behalf of the CLAIMANT
MR JAMES EADIE (instructed by The Treasury Solicitor) appeared on behalf of the DEFENDANT
MS HELEN MALCOLM appeared on behalf of the INTERESTED PARTY
The claimant seeks judicially to review a decision of the Secretary of State for the Home Department given by letter dated 4th November 2002 ordering the claimant, Mr Warren, to surrender to the United States pursuant to the Extradition Act 1989. The claimant contends in this application that it would be wrong, unjust or oppressive for the Secretary of State to order his return to the United States.
The claimant is 56 years old. He is married with three children. Tragically, one of his children, his son Joshua, now aged seven, suffered brain damage at birth and now suffers from what are described as "autistic tendencies". The claimant is unwell. He suffers from depression, described as "reactive depression" to the prospects of being sent to and tried in New York. The opinion of four psychiatrists who have examined him is that he is currently unfit to plead, and that if he were to be surrendered to the United States, his condition would deteriorate and it would not be possible for him to be tried.
The claimant faces charges in New York in the United States. Those charges relate to share transactions under which stock, it is alleged, was sold at discount to foreign based investors. It is said that he participated in the production of documents purporting to show that off-shore companies owned by three citizens in the United States were, in fact, not connected with any person resident in the United States. I should add that the claimant is a solicitor resident in the United Kingdom. On 3rd May 1999 a grand jury in the New York County filed a 77 count indictment charging the claimant with a variety of crimes, such as enterprise corruption, falsifying business records and securities fraud. The arrest warrant in relation to those charges was issued on the same day, 3rd May 1999. On 25th June 1999 the Office of the District Attorney in New York filed a request for the claimant's extradition from the United Kingdom.
He surrendered by prior arrangement to the extradition squad on 10th April 2000 and, having appeared at Bow Street Magistrates' Court, was admitted to bail by a High Court judge on 6th July 2000. He made it clear that he was not seeking an application for habeas corpus, but proposed to submit written representations to the Secretary of State as to why he should not be surrendered to the United States. He made those representations in a detailed letter dated 20th October 2000. In short, he relied upon his current mental health, the effect on his wife's health, the effect on the welfare of his children, particularly the health of his son Joshua, and his other personal circumstances.
The history of this matter discloses a number of detailed reports by psychiatrists as to his mental health, particularly in relation to what was shown in those reports to be a serious risk of self harm. The representations of 20th October 2000 enclosed a number of medical reports. There were two reports from Dr Gayford, the first dated 30th November 1999. In that report, Dr Gayford, a consultant psychiatrist and honorary senior lecturer, stated that the claimant was faced with a crisis that he was unable to deal with and was determined that he was not going to face. Dr Gayford said:
"I can well understand that it produced depressive symptoms, which are clearly not persistent."
He continued:
"Judging by the emotional outburst that I have seen I think that any attempt to enforce this [his return to America] will result in dramatic symptoms and I think there is a strong possibility that he could even do as he is threatening, to end his life as he would see that there was no future."
In a later report dated 26th June 2000, Dr Gayford says that the claimant:
"… has a vulnerable personality and when subjected to stresses with which he feels he cannot cope, he acts in a dramatic way which is depressive and could be self-destructive."
The representations also included a report from Dr Hallström dated 15th August 2002. Dr Hallström is the Medical Director of the Florence Nightingale Clinic at Chelsea and an honorary consultant psychiatrist at Charing Cross Hospital. Dr Hallström took the view that the claimant was genuine in his distress and that his suicidal threats should be taken seriously. He said that he had been unwell for two years and his condition was worse by the time of this report. He said that on the balance of probabilities the claimant was not fit to stand trial to defend himself in American court proceedings; he would have trouble dealing with substantial amounts of evidence. He said he was not emotionally robust, and would not cope well with rigorous and extensive cross-examination.
There was a further report relating to Mrs Warren from a community psychiatric nurse, which described her panic attacks, sleeplessness, feelings that she wanted to withdraw from others, and poor concentration. A report from a family services manager dated 16th October 2000 described the situation of Joshua, now aged seven, who suffered from brain damage and exhibited some autistic tendencies.
Subsequent to that report, the Secretary of State arranged for his own medical report. A report was obtained from a psychiatrist, Dr Shetty, dated 19th December 2000. In that report, Dr Shetty concluded that the claimant was suffering a mixed anxiety and depressive reaction which started off as an adjustment disorder consequent to the police investigation and threat of deportation. He took the view that the claimant was under disability, as he put it, in relation to his trial, and that his mental health would deteriorate further should he be separated from his family. It would increase what he described as "his suicidal ideation". He took the view that it would be unlikely that there could be a conclusive trial, even on removal to the United States.
Dr Hallström signified his agreement with that view in a further report dated 10th January 2001. Further representations were made on the claimant's behalf on 19th January 2001. On 4th May 2001 a further consultant psychiatrist, Dr Crook, gave his opinion that the claimant was unfit to plead and under disability by English legal criteria. He said:
"In my opinion extradition would result in a deterioration of Mr Warren's mental state. I would consider that he would pose a high suicidal risk. On the balance of probabilities I would anticipate that he would require constant observation and probable hospitalisation if extradition were to proceed."
Dr Crook provided a further report dated 25th March 2002 which demonstrated that his opinion was unchanged since his earlier report of 4th May 2001.
Dr Shetty provided a second report on 4th July 2002, obtained on behalf of the Secretary of State. He said that the claimant's overall health had deteriorated since his previous interview. He was more anxious, pessimistic and less able to deal with legal matters. Dr Shetty remained of the view that he was unlikely to be able to withstand a trial, and was under disability. He continued to be concerned about his mental health and the prolonged wait, which he thought had contributed to his overall deterioration.
As a result of requests from the Secretary of State, the Supreme Court of New York intervened by appointing a psychiatric social worker, but not a qualified psychiatrist, Mr Hillel Bodek, as a mental health expert and special master in the claimant's case. I shall return later to the precise terms of his appointment. Mr Bodek gave a report dated 12th June 2001. In that report he said:
"I do not doubt that Mr Warren is suffering from adjustment disorder with mixed anxiety and depressed mood. He has his good days and bad days, as do virtually all patients who suffer from such a disorder. He has not required psychiatric hospitalization and has been managed with relatively limited outpatient treatment … However, I do believe that Mr Warren is likely to be exaggerating his symptoms at times in order to further his goal of convincing the Home Office to grant him what is in effect clemency."
He continued by pointing out that if Mr Warren's adjustment disorder was of such severity as to render him unfit for trial, he ought to have had inpatient psychiatric care or far more intensive outpatient treatment. That failure to provide more intensive treatment indicated to Mr Bodek that Mr Warren's overall mental condition was not so severe as to render him incompetent to proceed at this time. He repeated that he would have expected more intensive treatment. He concluded that it was far more likely that he was exaggerating his real symptoms in an attempt to affect the Home Office's determination in this matter.
Mr Bodek then continued by pointing out the arrangements that would be available for Mr Warren should he be extradited. He would be placed at the Bellevue Hospital Center Forensic Psychiatry Service for a period of inpatient evaluation. An appropriate treatment plan would be developed for him so that the full...
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