R (Prosser) v Secretary of State for the Home Department
Jurisdiction | England & Wales |
Judge | Foskett J,Sir Anthony May P |
Judgment Date | 21 April 2010 |
Neutral Citation | [2010] EWHC 845 (Admin) |
Court | Queen's Bench Division (Administrative Court) |
Date | 21 April 2010 |
Docket Number | CO/7847/2009,Case No: CO/7847/2009 |
[2010] EWHC 845 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: President Of The Queen's Bench Division
The Honourable Mr Justice Foskett
Case No: CO/7847/2009
Hugh Southey QC (instructed by Birnberg Peirce & Partners) for the Claimant
Hugo Keith QC (instructed by TSol) for the Defendant
Hearing dates: 23 rd March 2010
This is the judgment of the Court
Introduction:
Before the inception of the Extradition Act 2003, the Secretary of State had a general discretion to make an order for the return of an alleged offender to a foreign state. The discretion was circumscribed by section 12(2)(a) of the Extradition Act 1989, which provided that the Secretary of State should not make an order if it appears to him that it would, having regard to all the circumstances, be unjust or oppressive to do so by reason of the trivial nature of the relevant offences or by reason of the passage of time since the person is alleged to have committed the offences.
Elizabeth Prosser challenges in these judicial review proceedings decisions of the Secretary of State of 19 th December 2008 and 2 nd July 2009 to extradite her to the United States. Her extradition is sought for offences alleged to have been committed there in 1997 and 1998. In August and November 1997, she is alleged to have procured $6,750 from a former employer by fraud. She is alleged to have accepted money for fictitious advertisements placed in a magazine. She denies these offences. She is also charged with the unlawful abduction of her daughter in contravention of a child custody order in favour of the daughter's father. She accepts that she did unlawfully abduct her daughter on 10 th March 1998. She claims to have done this because she believed that she was about to be arrested for lack of necessary immigration status enabling her to work. She believed that she would then be deported without her young daughter.
These are not trivial offences. But the passage of time since they were committed is 12 years or so since the warrant for her arrest on 11 th March 1998 and her arrest in this jurisdiction on 2 nd September 1998, following which she spent 4 1/2 months in custody. The long delay is not her fault. Some of it, between 2002 and 2004, is accepted to be the fault of the Secretary of State. Much of the time has been spent in a laboriously slow process of obtaining medical reports. On one view, the delay has taken the edge off the seriousness of the offences. The daughter is now aged 18 or so. She lives in the United States with her father, who is reconciled with Mrs Prosser. The daughter is planning to come to Wales for university education. The unlawful abduction does not appear to have had enduring ill effects. Counsel for both parties tended to suppose at the hearing of this application that convictions in the United States were unlikely to result in custodial sentences.
The main burden of Mrs Prosser's case is that the Secretary of State was wrong to order her extradition in that she suffers from such a combination of physical and psychiatric illnesses that extradition would compromise her rights under Articles 3 and 8 of the European Convention on Human Rights so that it would be unjust and oppressive to extradite her.
On 25 th January 2000 representations were submitted to the Secretary of State to the effect that Mrs Prosser should not be extradited. Further representations were made by invitation on 23 rd October 2002. There was further correspondence in 2004. On 12 th October 2004, the Secretary of State made an order for Mrs Prosser's extradition to the United States. She challenged this in judicial review proceedings. The Secretary of State's decision was quashed by consent on 18 th March 2006, the Secretary of State accepting that further medical evidence required a reappraisal of the decision.
There were delays while the Secretary of State obtained expert medical reports. The reports thus obtained included a report from Dr Moyles, a consultant psychiatrist, and a report from Dr Hollingworth, a consultant rheumatologist. Thereafter further assurances were sought from the United States authorities. On 1 st July 2008, the US Department of Justice gave a number of assurances which included that the Pennsylvanian authorities would provide Mrs Prosser with appropriate medical care and treatment. On 19 th December 2008, the Secretary of State wrote stating that a decision had been taken to proceed with Mrs Prosser's extradition and giving reasons. On 20 th January 2009, Mrs Prosser's solicitors wrote sending a report from Mr Shafi Ahmed, a consultant general, laparoscopic and colorectal surgeon, and a report from Mrs Prosser's General Practitioner, Dr Keith Thomas. Subsequently, Mrs Prosser's solicitors obtained a report from a consultant psychiatrist, Dr Wilhelm Skogstad. On 2 nd July 2009, the Secretary of State wrote confirming the decision to extradite Mrs Prosser. These proceedings were then started. Langstaff J gave permission on 2 nd October 2009.
Mrs Prosser's medical and psychiatric problems
The Secretary of State considered the medical evidence at length in the decision letters of 19 th December 2008 and 2 nd July 2009. Mrs Prosser suffers from a combination of a number of conditions which appear to be interrelated and have stress as an important component. She suffers from (a) severe depression, with possible post traumatic stress disorder; (b) fibromyalgia; (c) Crohn's disease; and (d) shingles. Fibromyalgia is one of a spectrum of disorders which include chronic fatigue syndrome, ME, irritable bowel syndrome and learned breathlessness which do not appear to have an organic cause. It is associated with musculoskeletal pain. She is recorded as being severely disabled, requiring a stair lift, a bath lift, a special motor vehicle and a specialist wheelchair.
Mrs Prosser's Crohn's disease required a subtotal colectomy in December 2007 and a permanent ileostomy. Mr Ahmed's opinion, following the surgery, is that there is a 70% risk of Mrs Prosser developing further Crohn's disease in the next 15 years, and a 25% risk of further surgery in the next 10 years. He also notes the link between stress and Crohn's disease and points out that the symptoms of the disease are aggravated by stress. He concludes that Mrs Prosser's condition will require intensive surveillance. If she does not obtain appropriate medical care, she will undoubtedly suffer more stress and it is quite likely that her condition may be exacerbated and that this will further affect her quality of life and treatment options.
Since the Secretary of State's extradition order, Mrs Prosser has been admitted for further management and it appears that the Crohn's disease has flared up with multiple fistulas around the stomal area. She was due to be seen by a consultant colorectal surgeon on 13 th July for further refashioning and appropriate surgery as needed. On 11 th March 2010, the Secretary of State was informed that Mrs Prosser had recently entered hospital for a period on account of the exacerbation of her Crohn's disease. It appears that her oral pain relief had also been ineffective and she started on a new treatment of weekly injections of methrotrexate, which is a standard medication given to sufferers of Crohn's disease, and which controls the prognosis of the disease and thus the associated pain.
As to the fibromyalgia, Dr Hollingworth reported widespread body pain and related impairment of function which appears to have no organic pathology. He reported that fibromyalgia is part of a spectrum of related disorders which include chronic fatigue syndrome, ME, irritable bowel syndrome, learned breathlessness and many others. The features common to these conditions are pain, fatigue, emotional distress and a poor sleep pattern. Since these symptoms have no discernable organic pathology, they are manifest solely as symptoms reported by an individual. There are no absolute confirmatory signs. Standard laboratory investigations exclude other causes. Dr Hollingworth explained that the management of fibromyalgia is difficult, although cognitive behaviour therapy has proved to be effective as well as the use of small doses of amitriptyline, an anti-depressant, as a sleep modifier, as well as pacing the patient's activities.
Considering the necessary travel arrangements for surrender, Dr Hollingworth stated that, if Mrs Prosser's assertions are correct that travel for more than 20 miles in a car is painful, then the journey to a major airport and the transfer to America, even if she is escorted, would cause extreme pain. If her account is to be believed, she would require a stretcher. She would require an increased dose of morphine, which might carry with it the risk of affecting her breathing, so that any medical attendant escorting her would need to be able to cope with this possibility. Apart from causing her pain and worsening of her symptoms for some days afterwards, travel to the United States would cause no long term consequences.
Dr Hollingworth stated that he could not know absolutely if Mrs Prosser was telling him the truth. He was well aware that she would escape extradition and imprisonment should the Secretary of State accept his opinion. She had every reason to mislead deliberately. He had carefully considered all the issues in the case and had concluded that, on the balance of probabilities, Mrs Prosser's symptoms were...
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