The Government of India v Martin Ashley (also known as Raymond Ashley)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom,Lord Judge Elias |
| Judgment Date | 10 October 2014 |
| Neutral Citation | [2014] EWHC 3505 (Admin) |
| Docket Number | CO/2291/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 October 2014 |
[2014] EWHC 3505 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Elias
Mr Justice Hickinbottom
CO/2291/2014
Mr P Caldwell (instructed by CPS Extradition Unit) appeared on behalf of the Appellant
Mr M Butt (instructed by Bullivants & Partners) appeared on behalf of the Respondent
The Appellant, the Government of India, seeks the extradition of the Respondent, Martin Ashle, formerly known as Raymond Varley, who is accused of various sexual offences against children in the period 1989 to 1991. India is a Category 2 territory, and thus Part 2 of the Extradition Act 2003 applies to this case. On 8 May 2014, following an extradition hearing, District Judge Purdy discharged the Respondent under Section 91 of the 2003 Act, finding that his mental health would be such that it would be unjust and oppressive to extradite him. The Appellant Government now appeals on the single ground that the judge's finding in that regard was wrong.
The background to the charges against the Respondent is briefly as follows.
Dr Freddie Peats ran a boys' home in Goa, India. In 1991, he was arrested following complaints of serious sexual abuse of boys in his care, including allegations that he permitted or facilitated children being taken by visiting European and Australasian men to nearby hostels where sexual abuse occurred and indecent photographs taken. It is the prosecution case that the Respondent was one such man.
The Respondent was charged with criminal conspiracy for the commission of various sexual offences on children, the period of conduct involving him being between 1989 and 1991, identified by reference to dates that he stayed at a particular hostel in Goa, as well as the evidence of the children. It is said that photographs discovered during the investigation into Dr Peats' activities show the Respondent with a number of the children who allege they were abused. It is the prosecution case that those photographs implicate the Respondent: and the conduct alleged against the Respondent was in the form of serious sexual abuse of four young boys and a girl. The Respondent denies the photographs are of him, and he denies any wrongdoing.
On 21 March 1996, Dr Peats was convicted of various offences at the Additional Sessions Court in Margao, Goa; and was sentenced to life imprisonment. A number of others involved have been extradited from their various countries of residence, and several are now serving sentences of imprisonment following conviction in India.
The Respondent was born on 7 September 1947, and was in his early forties at the time of these alleged offences. A domestic warrant for his arrest was issued in India on 15 October 1996. At that time he was living in Thailand – where he had been living since 2000 – but it appears that, in early 2012, he was deported or otherwise removed from Thailand to the United Kingdom in circumstances that are not entirely clear but which in any event have no relevance to this appeal.
A request for extradition was made by the Appellant Government to the United Kingdom Government on 25 April 2012, and the case was certified as a Category 2 case on 15 May 2012. The Respondent was arrested at his home in Halifax on 29 May 2012.
The extradition proceedings have had an unfortunately protracted course, particulars of which are set out in paragraph 6 of the District Judge's judgment. It is unnecessary here to refer to the details of the delay, much of which was concerned with investigations of prison conditions in India. By April 2013, the Respondent was threatening to commit suicide if extradited to India; and, at a hearing on 9 April 2013, it appeared the Respondent had been referred by his doctor to the local mental health team. That hearing in April 2013 was adjourned for a variety of reasons, including to give time for any medical report to be prepared and filed.
In the meantime, in a clinical context, the Respondent was referred by his doctor to a clinical psychologist, Dr Sarah Canning, whom he saw on 1 October 2013. She indicated that he would need further tests for a full assessment of his dementia which was by this stage (in the words of the District Judge) a "tentative diagnosis." On 14 November, the Respondent had a head scan, but was told that the results would not be available to Dr Canning for some weeks. The results of that scan were not before the District Judge and, as I understand it, have never been disclosed.
Meanwhile in the extradition proceedings, on 19 November 2013, the District Judge heard submissions on all remaining issues, including those concerning the Respondent's mental health; and he adjourned the matter to 14 (later moved to 22) January 2014 for a full and final ruling. By this time, the Respondent had filed a statement indicating that he believed he suffered from dementia, and he wanted further time to obtain medical evidence. That application was opposed, but the judge granted it. He adjourned the hearing again on 22 January, to 28 March 2014, for that purpose.
The Respondent then took matters into his own hands. Believing he was suffering from some sort of dementia, without reference to his solicitors he self-referred to another clinical psychologist, Ms Linda Atterton, a Chartered Clinical Psychologist specializing in neuropsychology, whom a friend of the Respondent had identified on the internet.
Ms Atterton prepared two reports dated 10 February and 19 March 2014, which were served on the Appellant on 18 and 19 March 2014 respectively. On 25 March, the Appellant sent the Respondent and the court an email indicating that Ms Atterton's evidence was disputed, and she would be required to give evidence. At the 28 March hearing, the District Judge specifically asked the Appellant Government whether it intended to seek a medical examination of the Respondent or call evidence in rebuttal, and was told that it did not; but the hearing was adjourned, yet again, to 25 April 2014 to enable Ms Atterton to attend. She duly attended that hearing, at which she gave evidence and was cross-examined. The Respondent did not give evidence himself.
At the time of her first report (10 February 2014), Ms Atterton did not know that the Respondent was facing extradition. That report included the following:
(i) Ms Atterton set out her qualifications and experience, which included regular instructions to conduct assessments to pinpoint type and extent of neuropsychological impairment. She said she was routinely asked to see patients with a view to assessing mental capacity, fitness to plead and capacity to manage their own affairs, including instructing a solicitor. In her second report, she confirmed that she regularly makes assessments of mental capacity and fitness to plead and to instruct a solicitor, having received appropriate training to do so. She has assessed well over 100 patients at various stages of dementia.
(ii) Ms Atterton first spoke to the Respondent by telephone. In just trying to arrange an appointment, she said he lost track of what he was saying and in finding words, so it was difficult to have a coherent conversation with him. She said it was apparent to her from the beginning that he was suffering from some type of dementia.
(iii) At their first meeting, the Respondent told her that he believed he was suffering from some type of dementia. He had been advised by the Alzheimer's Society and a friend to keep a diary detailing his difficulties, which he had done for three months. That diary suggested that he suffered severe disorientation with regard to time and place – he would, for example, arrive somewhere having forgotten his reason for going there – and also difficulties with concentration, word-finding and problem-solving.
(iv) She conducted an assessment of the Respondent, shortened because of the severity of his difficulties in doing it. She carried out psychological tests of attention, concentration, visual spatial functioning, verbal fluency, problem solving and language, including confrontational naming. She found his concentration, attention, working memory, short-term memory, semantic memory and verbal fluency all severely impaired. His writing, visual spatial function and long-term memory were also impaired. She found him to suffer from disassociation, a state in which a person feels removed from himself and watching himself, besides or above – which, in her judgment, was highly likely to be neurological.
(v) She concluded that "there [was] widespread, moderate-severe impairment, affecting everyday life, self-care and capacity to look after his own affairs and be safe at home and in the community". She said she could not pinpoint the type of dementia, but it might be Alzheimer's, and irrespective of label, it would deteriorate.
Ms Atterton's second report (dated 19 March 2014) was specifically prepared to assess the likely impact of extradition. She said as follows:
(i) Her diagnosis of the Respondent's condition was "without any doubt" dementia.
(ii) She considered there was absolutely no evidence of malingering or simulation of deficit. The Respondent's presentation was severe and typical, and it would be almost impossible to simulate in neuropsychological assessment.
(iii) The Respondent was severely impaired in terms of both comprehension and expression of language. He found it very difficult to remember the...
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