Richen Turner v Government of the USA
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens,Mr Justice Globe |
| Judgment Date | 28 August 2012 |
| Neutral Citation | [2012] EWHC 2426 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/6556/2011,Case No: CO/6556/2011 |
| Date | 28 August 2012 |
[2012] EWHC 2426 (Admin)
Lord Justice Aikens
Mr Justice Globe
Case No: CO/6556/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Ben Lloyd (instructed by Lawrence & Co) for the Appellant
Mr Peter Caldwell (instructed by CPS Extradition Unit) for the Respondent
Hearing dates: 12 th January; 4 th, 17 th, 26 th, and 30 th July 2012
A. The Background to the appeal
Richen Turner is a UK citizen aged 42. She is a Requested Person by virtue of a US Government extradition request for trial in respect of a charge of causing death by dangerous driving while under the influence of drink or drugs following a fatal accident in Florida on 9 October 2005. A car being driven by Ms Turner collided with a car driven by the deceased, Mr Peter Cambra, at a cross-roads controlled by traffic lights. The allegation is that Ms Turner went through red lights and so caused the death of Mr Cambra, who was not wearing a seat-belt at the time.
Ms Turner was arrested in the UK on 8 November 2010 following a US extradition request. Ms Turner challenged the request. The USA is a Category 2 territory so Part 2 of the Extradition Act 2003 (the Act) applies. Ms Turner argued before District Judge Purdy that her case should not be sent to the Secretary of State because her extradition should be barred through passage of time (section 82 of the Act) or because of her ill-health.
There was a hearing before Judge Purdy on 12 April 2011 at which the appellant gave evidence and was cross-examined. Judge Purdy reserved his judgment, which was given on 5 May 2011. He rejected the appellant's arguments and sent her case to the Secretary of State pursuant to section 87(3) of the Act. On 28 June 2011 the Secretary of State made an order for Ms Turner's extradition.
B. The basis of the appeal
Ms Turner now appeals the decision of Judge Purdy pursuant to section 103(1) of the Act. An appeal under section 103 can be brought on a question of law or fact: section 103(4). The court's powers on an appeal under section 103 of the Act are set out in section 104. A court may only allow an appeal if either the conditions in section 104( 3) or (4) are satisfied. Under section 104(4):
"(4) The conditions are that—
(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;
(b) the issue or evidence would have resulted in the judge deciding a question before him at the extradition hearing differently;
(c) if he had decided the question in that way, he would have been required to order the person's discharge".
The sole ground advanced as the basis of the appeal was and remains one that was not before the District Judge in its current evidential form. It is that there is a substantial risk that Ms Turner would successfully commit suicide if her extradition were to be ordered. Therefore, it is said, her extradition should be barred by reason of her ill-health such that it would be oppressive to extradite her within the terms of section 91(2) of the Act. Accordingly, pursuant to section 91(3), this court should order her discharge.
Section 91 of the Act provides:
"Physical or mental condition
(1) This section applies if at any time in the extradition hearing it appears to the judge that the condition in subsection (2) is satisfied.
(2) The condition is that the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him.
(3) The judge must—
(a) order the person's discharge, or
(b) adjourn the extradition hearing until it appears to him that the condition in subsection (2) is no longer satisfied".
C. The history of the appeal hearings
This appeal first came on before a court consisting of me and Maddison J on 13 January 2012. At that time the evidence relied on by Ms Turner in support of her section 91 defence was a report of a consultant forensic psychiatrist, Dr Gwilym Hayes, dated 28 December 2011. That report was not, therefore, before the District Judge. It was submitted on behalf of Ms Turner by Mr Ben Lloyd at that hearing that this report constituted evidence that was not available before the District Judge at the extradition hearing and was now available and so could be considered by this court pursuant to section 104(4)(a) of the Act, with the consequence that, if this report had been before the District Judge, he would have decided the question before him, i.e. whether to send Ms Turner's case to the Secretary of State, differently: see section 104(4)(b) of the Act.
In the admirably clear original Outline Argument in support of the appeal submitted by Mr Ben Lloyd for the appellant, he summarised the opinion of Dr Hayes, which is given at paragraph 14 of his report of 28 December 2011. I regard that summary as accurate and so I set it out now:
i) The Appellant is suffering from a recognised psychiatric condition. She has a recurrent depressive illness.
ii) There are some post-trauma symptoms although she does not satisfy the diagnostic criteria for PTSD as such.
iii) There is a suggestion of pre-existing vulnerability. Her depressive illness was precipitated by her involvement in the accident coupled with a fear of the consequences of her extradition to the United States.
iv) The Appellant is at a continuing risk of committing suicide. There is a previous history of deliberate self-harm.
v) There is a high risk of suicide.
vi) There is a causative link between the Appellant's worsening psychiatric condition and the extradition proceedings.
vii) Extradition would be likely to worsen the Appellant's depressive illness and heighten the suicide risk.
viii) There is a significant and substantial risk that the Appellant would successfully commit suicide.
ix) The Appellant is currently in receipt of antidepressant medication and psychotherapy. Previous therapeutic interventions have been of assistance in improving her condition somewhat although from her account she has not returned to pre-accident functioning. Therapy would be reasonably predicted to have an ongoing positive effect upon her depressive illness.
x) The threat of extradition is aggravating her condition and as long as the request remains active then her condition will be liable to deteriorate.
I should also note that in paragraph 12.5 of his report, Dr Hayes states that the appellant had told him that if she was extradited she would definitely kill herself in the 10 days that would elapse between the order being made and the extradition being carried out.
At the hearing on 13 January this year, the court took the view that it needed more assistance on the issues of what steps could be taken to minimise the risk of suicide by the appellant both in the UK and the USA. We made an order that further evidence on these issues be filed.
Subsequently, the appellant filed two further reports of Dr Hayes, dated 22 February and 25 April 2012. The respondent filed a report by Dr Ian Cummings, consultant Forensic Psychiatrist, dated 14 March 2012, on the steps that might be taken to minimise suicide risks in the UK, together with a statement from Jenny Rees, the Head of Safer Custody Casework in the Offender Safety, Rights and Responsibilities Group in the National Offender Management Service ("NOMS") within the Ministry of Justice. The respondent also filed an affidavit of Lieutenant George Rimel of the Compliance Unit of the Broward Sheriff's Office, Department of Detention and Community Control, Florida, sworn on 7 February 2012 and an affidavit of Dean Aufderheide MA PhD, the Director of Mental Health Services of the Florida Department of Corrections. Those affidavits deal with the procedure and facilities available for dealing with suicide risk detainees in Florida, where Ms Turner would be detained and tried if extradited.
At the renewed hearing on 4 July (before Globe J and me), Mr Lloyd submitted that the original and further evidence of Dr Hayes supported a conclusion that there was a real and significant risk of suicide by Ms Turner. He further submitted that it was not demonstrated that either the UK nor USA authorities could take, or had properly outlined, steps that would be sufficient to address this suicide risk. Accordingly, he submitted that Ms Turner's mental condition was such that it would be oppressive for her to be extradited.
For the government of the USA, Mr Caldwell submitted that, on the evidence put forward in Dr Hayes' three reports, it could not be said that the appellant had a general disposition to commit suicide, but Mr Caldwell accepted that, if the appeal were dismissed, there would be a danger period during the time after the dismissal of her appeal and her removal to the USA. He submitted that the risk of suicide by Ms Turner was not so great that it would be oppressive to order her extradition, or even if there was a sufficient risk, it could be coped with by authorities in both the UK and the USA so that it would not be oppressive to extradite her.
At the hearing on 4 July there was a discussion on about how the court should deliver its judgment, bearing in mind the possibility that it might dismiss the appeal and the fact that it was common ground that there could be a "danger period" between the dismissal of the appeal and the appellant's removal to the USA. The court emphasised that it was up to the respondent to decide how to deal with the practicalities, eg. by making an application to the...
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