Wei Miao v Government of the United States of America
| Jurisdiction | England & Wales |
| Judge | Lord Burnett of Maldon CJ |
| Judgment Date | 07 August 2020 |
| Neutral Citation | [2020] EWHC 2178 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3086/2019 |
| Date | 07 August 2020 |
[2020] EWHC 2178 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE RIGHT HONOURABLE The Lord Burnett of Maldon
LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE HONOURABLE Mr Justice Julian Knowles
Case No: CO/3086/2019
Mark Summers QC and Ben Cooper QC (instructed by Commons) for the Applicant
Helen Malcolm QC and Aaron Watkins (instructed by CPS) for the Respondent
Hearing date: 2 July 2020
Approved Judgment
Introduction
This is the judgment of the Court to which we have both contributed.
This is a ‘rolled-up’ application under section 103(1) of the Extradition Act 2003 (“the 2003 Act”) for permission to appeal against the decision of District Judge Richard Blake on 31 May 2019 to send the applicant's case to the Secretary of State under section 87(3) of that Act. The Government of the United States has requested the applicant's extradition.
For the reasons which follow we refuse permission to appeal.
The applicant is wanted in the County of Santa Barbara in California to stand trial for the murder of Chung Yu Ping, a former business associate. The charge is that on or about 6 June 1991, following a dispute involving the non-payment of $5,000, which Mr Ping had borrowed to pay medical bills, the applicant bludgeoned him to death with a hammer, strangled him, and then drove his body the best part of 200 miles before disposing of it in a roadside ditch. Mr Ping's body was found with his head in a plastic bag that had been secured with electrical wire.
The following month a warrant was issued for the applicant's arrest. The prosecution's complaint, filed with the Santa Barbara County Municipal Court on 28 July 1991, charges the applicant with one count of second-degree murder contrary to section 187(a) of the California State Penal Code.
The applicant is a fugitive from justice. He was contacted on the phone by detectives investigating Mr Ping's murder on 18 June 1991. He agreed to meet them but failed to attend. He then fled from the United States eventually arriving in the United Kingdom (via Mexico and Jamaica) where he obtained leave to remain under a false name. The Government made its extradition request on 25 February 2015. The request was certified by the Secretary of State pursuant to section 70 of the 2003 Act on 2 March 2015. An extradition warrant was issued by Westminster Magistrates' Court on 29 April 2015 on which the applicant was arrested on 20 August 2015. He initially denied being the person sought and denied ever having been in the United States. Eventually, he admitted disposing of Mr Ping's body but denied killing him. He also said, ‘It's totally accident. It's not something I did on purpose’. He appeared before Westminster Magistrates' Court on the same day, when the case was opened, and was remanded in custody.
Proceedings before the District Judge
The extradition proceedings have been protracted. Ms Malcolm QC, who appears for the Government, explained that there were 12 adjournments during the course of the hearing. There was some delay caused by the defence preparation and service of evidence but the principal cause was the applicant's mental health, which is at the heart of the argument to resist extradition.
The applicant resisted extradition on a number of grounds, including:
i) Extradition was barred under section 87 of the 2003 Act read with Articles 2 and Article 3 of the European Convention on Human Rights (the Convention). Section 87 prohibits extradition where it would be incompatible with the defendant's Convention rights The risk of suicide resulting from his mental illness would not be appropriately managed in the California prison estate (in the Santa Barbara County Jail pre-conviction, and an unknown Californian prison post-conviction).
ii) His extradition was barred by section 91 of the 2003 Act, which bars extradition where physical or mental health would render extradition unjust or oppressive.
iii) Extradition would violate his rights under Article 3 of the Convention because of overcrowding and gang violence in Californian prisons.
iv) The proceedings were an abuse of process because officials from California who had given evidence about prison conditions had failed to reveal or refer to material critical of standards of care in Californian prisons, especially for mentally ill prisoners. There had been a failure in the duty of candour with the result that the proceedings should be stayed as an abuse.
Other grounds of challenge have fallen away.
The parties adduced many hundreds of pages of evidence including medical reports, as well a considerable body of evidence about Californian prison conditions and attendant civil litigation in the United States. The judge's task was far from easy but he produced a judgment of commendable clarity and brevity.
The judge focussed on two main areas:
i) The applicant's mental health: Dr Hopley, a consultant psychiatrist, gave evidence that the applicant suffered from an adjustment disorder and a serious depressive disorder. These were treatable conditions which were being treated. His condition fluctuated over time but as at 15 March 2018, Dr Hopley noted in his report that ‘Mr Miao still poses a very high risk of committing suicide if faced with extradition’. He had attempted suicide twice. Dr Kucharski, a New York psychologist said that ‘there is a very high likelihood if not a certainty that Mr Miao will take his own life if he is ordered extradited to the United States’. Dr Hewitt, a consultant psychiatrist, said that the applicant was ‘at increased risk of self-harm and suicide’ resulting from the on-going stress of the extradition proceedings. She thought his depression would worsen if he were extradited but the judge noted that extradition was not the only stressor, in particular that some of the applicant's mental health difficulties might be linked to his being a fugitive and the non-disclosure of his situation to his family. He also said that Dr Hopley thought that the suicide attempts (like his initial lies on arrest) might have been manipulative behaviour.
ii) Prison conditions in California: In support of his Article 3 argument, the applicant relied on alleged systematic failings within the Californian prison system; overcrowding and lack of resources; inadequate care and treatment; and risk of violence from other inmates. He said the effect on him of all of this would be more serious because of his mental vulnerability. The Government relied on assurances as to the treatment which the applicant would receive if extradited. These had been given by employees of the County of Santa Barbara Sheriff's Office (which is responsible for the County Jail) and by the California Department of Corrections and Rehabilitation, which is responsible for post-conviction prisons.
The judge found that the applicant had mental health problems which created a suicide risk. He identified the central issue as whether adequate care and supervision would be provided to the applicant within the Californian prison estate so that the risk would be properly dealt with. He had to be satisfied that the applicant's ‘depression and behaviour’ would be safely managed in prison if he were extradited. Mr Summers QC, on behalf of the applicant, recognised that the judge asked himself the right questions but submits that the judge did not grapple properly with the evidence which showed that the suicide risk would not be managed safely.
The judge referred to the six reports submitted about the applicant's mental health. He noted, in particular, that in March 2018 Dr Hopley had said that the applicant had responded well to clinical care. Dr Hopley maintained his view that the applicant posed a ‘very high risk’ of committing suicide if extradited, but there was at that time no immediate risk of self-harm/suicide. Dr Hopley had no reason to doubt the good faith of the assurances that had been given and he had no direct experience of Californian prisons. By February 2019 the diagnosis was adjustment disorder in response to the stress of the impending hearing and possibility of extradition.
The judge concluded that the applicant's mental difficulties had been caused by the position he finds himself in but was not different from the position that would be faced by anyone charged with such a serious offence. The judge observed that it could not be suggested that someone who had twice attempted suicide whilst on remand for murder in England should not for that reason face trial.
The judge set out further details of the assurances that had been offered in particular by Shawn Lammer of the County of Santa Barbara Sheriff's Office and Katherine Tebrock of the Department of Corrections and Rehabilitation, including in relation to matters such as screening and mental health treatment intervention. He asked himself whether he could be satisfied that these assurances sufficiently mitigated the real risk that the applicant might commit suicide. He noted that the United States is a democratic country governed by the rule of law with a long history of giving effective assurances in extradition proceedings. He was satisfied that the assurances could be relied upon and in consequence rejected the arguments under section 91 of the 2003 Act and relating to the applicant's mental health difficulties suggested to bar extradition.
The judge then made findings about prison conditions in California more generally. The evidence included...
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