R Haroon Aswat v Secretary of State for Home Department The United States of America (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mitting |
| Judgment Date | 16 April 2014 |
| Neutral Citation | [2014] EWHC 1216 (Admin) |
| Docket Number | Case No: CO/13747/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 April 2014 |
and
[2014] EWHC 1216 (Admin)
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
and
Mr Justice Mitting
Case No: CO/13747/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Edward Fitzgerald QC CBE AND Mr Ben Cooper (instructed by BIRNBERG PEIRCE AND PARTNERS) for the Claimant
Mr James Eadie QC AND Mr Ben Watson (instructed by THE TREASURY SOLICITOR) for the Defendant
Miss Clair Dobbin (instructed by THE CROWN PROSECUTION SERVICE) for the Interested Party
Hearing dates: 1st and 2nd April 2014
Background
The claimant was born in Batley, West Yorkshire on 22 September 1974. His parents are alive and live in Batley. He has four sisters and five brothers. He had an unremarkable childhood. In about 1997, he moved to London. He is a British citizen.
On 26 November 1999 he arrived with another man at John F Kennedy Airport, New York. The two men then travelled by Greyhound bus to Seattle. The U.S. Government alleges that they then went by car to Bly, Oregon, to help set up and run a jihadi training camp, overseen by a U.S. citizen, James Ujaama. The claimant is said to have been at the camp for four to six weeks, during which time, weapons, including rifles and a replica AK47 were fired. The object of the training, according to the U.S. Government, was to equip recruits to go to Afghanistan to receive further training and then to fight there or elsewhere. The claimant's trip to Bly is said to have been organised by Mustafa Kamel Mustafa ("Abu Hamza").
According to the claimant, he undertook a pilgrimage to Mecca in 2000 and then spent time in Afghanistan, Pakistan and South Africa.
On 20 June 2005, a criminal complaint was filed against the claimant and a warrant issued for his arrest at the U.S. District Court, Southern District of New York.
His detention for extradition in 2005
On 20 July 2005 the claimant was arrested in Zambia. On 7 August 2005, he was deported from Zambia to the United Kingdom. On arrival, he was arrested on a provisional warrant issued pursuant to a request made by the U.S. Government.
On 12 September 2005, a Federal Grand Jury returned a "superseder" (i.e. amended) indictment against the claimant, charging him with four counts of criminal conduct arising out of his participation in the activities of the training camp, punishable on conviction with a maximum sentence of 35 years imprisonment.
On 29 September 2005 the United States Government requested the extradition of the claimant to stand trial on that indictment in the U.S. District Court, Southern District of New York.
On 5 January 2006 the Senior District Judge decided that there were no bars to the claimant's extradition and sent the case to the Secretary of State for his decision on whether or not the claimant should be extradited. On 1 March 2006, the Secretary of State ordered extradition. The claimant appealed to the High Court. On 30 November 2006, the Divisional Court (Laws LJ and Walker J) dismissed his appeal: [2006] EWHC 2927 (Admin). It certified a point of general public importance, but on 6 June 2007, the House of Lords refused permission to appeal.
By virtue of Section 118(2) Extradition Act 2003, the Secretary of State was then obliged to extradite the claimant to the United States within 28 days. If the Secretary of State did not, a District Judge would have been obliged to order his discharge, unless reasonable cause was shown for the delay: s118(7).
On 10 June 2007 the claimant and Babar Ahmad lodged applications with the Strasbourg Court. On 12 June 2007, the Court made Rule 39 indications in both cases, with which the United Kingdom has complied.
The claimant has been detained since his arrest on 7 August 2005 – a period of over eight and a half years. Until 27 March 2008, he was detained within the prison estate in HMPs Belmarsh, Woodhill and, after 2 October 2007, Long Lartin. Until March 2008, neither his mental state nor behaviour gave rise to significant concern.
His admission to Broadmoor in March 2008
In March 2008, both deteriorated markedly. He began to shout and chant and may have had auditory and visual hallucinations. He kicked a prison officer; and on 13 March 2008 was placed in a segregation cell. From 14 March 2008, he refused to eat. He was seen by Dr. Kenney-Herbert, who made an urgent referral to Broadmoor on 17 March 2008. He was seen by Dr. Payne on 21 March 2008. His diagnosis was that the claimant was suffering from an acute psychotic episode. Arrangements were made for his urgent admission to Broadmoor on 27 March 2008.
In his first few weeks in Broadmoor, he displayed florid symptoms of what came to be diagnosed as schizophrenia, including delusional and grandiose beliefs. These were successfully treated by medication. Since early 2009, he has been prescribed 400 mg per day of amisulpride and, more recently, an anti-depressant. He mixes freely with other patients and is allowed "green ground access" (i.e. access to the secure grounds of Broadmoor Hospital). He receives regular visits from his family.
Dr. Claire Dillon, a Consultant Forensic Psychiatrist, has been the claimant's responsible clinician since June 2011. She has prepared a detailed report dated 26 March 2014 for the purpose of these proceedings. On 11 November 2011 the First Tier Tribunal (Health, Education and Social Care Chamber) reviewed the claimant's continued detention under Section 41 Mental Health Act 1983. It decided that he was not entitled to be discharged, on the basis that it was necessary for his health and safety or for the protection of other persons that he should continue to receive medical treatment for his mental disorder while detained in a hospital. The Tribunal heard evidence from Dr. Dillon and considered a written report dated 6 May 2011 by Dr. Payne. It accepted Dr. Dillon's opinion that the claimant suffered from an enduring mental disorder, paranoid schizophrenia, "of a nature although not currently of a degree, which makes it appropriate for him to continue to be liable to be detained in a hospital for medical treatment for his own health and safety". The Tribunal, which heard evidence from the claimant, considered that he lacked insight into his condition and noted Dr. Dillon's opinion that, given freedom of choice, he would be unlikely to accept his medication. The Tribunal also accepted her opinion that it would be detrimental to the claimant's mental health for him to be returned to prison – i.e., to Long Lartin.
Dr. Payne's report also addressed the only other plausible hypothesis for the treatment of his condition – in a hospital other than Broadmoor or Rampton. He considered that his mental disorder and risk could be managed by general adult psychiatric services in a local psychiatric hospital, in conditions of medium security.
The proceedings in Strasbourg: 2007–2013
On 6 July 2010 the Fourth Section of the Strasbourg Court giving judgment on the admissibility of applications by four individuals, including the claimant, ruled two grounds of application admissible – that the length of sentence likely to be imposed by a U.S. Court (wrongly stated to be 50 years in the case of the claimant) and the conditions in which the applicants would be likely to be detained after conviction – raised questions under Article 3 which required consideration on the merits; but ruled the remaining grounds of application, including pre-trial conditions of detention, manifestly ill-founded and so inadmissible: (2010) 51 EHRR SE6 p 97. The court knew that the claimant had been diagnosed with schizophrenia and transferred to Broadmoor: paragraph 123. Even so, it reached the same decision in his case:
"For the second applicant, who is no longer at HMP Long Lartin but is being cared for at Broadmoor Hospital, the court does not doubt that the United States Authorities would allow transfer to an equivalent high security hospital should that need arise after extradition".
By the time that the Fourth Section determined the applications on their merits, the First Tier Tribunal had reached its decision; and that decision together with its reasons must have been reported to the Court, because it ruled at (2013) 56 EHRR 1 paragraph 256 that it was not in a position to rule on the merits of his complaints, particularly in respect of ADX Florence (where it was contended that he would be detained after conviction) but required further submissions from the parties.
The Court asked the Government to address the following three questions by 9 May 2012:
"1. In determining whether detention at ADX Florence would be compatible with Article 3, what relevance, if any, is to be attached to the fact that Mr. Aswat's mental health has necessitated his transfer from HMP Long Lartin to Broadmoor Hospital?
2. Prior to Mr. Aswat's surrender to the United States, would details of his mental health condition be provided to the United States' authorities?
3. After surrender, what steps would be taken by the United States' authorities:
(i) to assess whether Mr. Aswat would be fit to stand trial; and
(ii) to ensure that, in the event of conviction, his mental health condition would properly be taken into account in determining where he would be detained?"
With the assistance of a detailed letter dated 8 May 2012 from the United States Government, the United Kingdom responded in time.
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