Warren, R (on the application of) v Secretary of State for the Home Department & Anor

MR JUSTICE MOSES: The claimant seeks judicially to review a decision of the Secretary of State for the Home Department given by letter dated 4th November 2002 ordering the claimant, Mr Warren, to surrender to the United States pursuant to the Extradition Act 1989. The claimant contends in this application that it would be wrong, unjust or oppressive for the Secretary of State to order his return to the United States.

The claimant is 56 years old. He is married with three children. Tragically, one of his children, his son Joshua, now aged seven, suffered brain damage at birth and now suffers from what are described as "autistic tendencies". The claimant is unwell. He suffers from depression, described as "reactive depression" to the prospects of being sent to and tried in New York. The opinion of four psychiatrists who have examined him is that he is currently unfit to plead, and that if he were to be surrendered to the United States, his condition would deteriorate and it would not be possible for him to be tried.

The claimant faces charges in New York in the United States. Those charges relate to share transactions under which stock, it is alleged, was sold at discount to foreign based investors. It is said that he participated in the production of documents purporting to show that off-shore companies owned by three citizens in the United States were, in fact, not connected with any person resident in the United States. I should add that the claimant is a solicitor resident in the United Kingdom. On 3rd May 1999 a grand jury in the New York County filed a 77 count indictment charging the claimant with a variety of crimes, such as enterprise corruption, falsifying business records and securities fraud. The arrest warrant in relation to those charges was issued on the same day, 3rd May 1999. On 25th June 1999 the Office of the District Attorney in New York filed a request for the claimant's extradition from the United Kingdom.

He surrendered by prior arrangement to the extradition squad on 10th April 2000 and, having appeared at Bow Street Magistrates' Court, was admitted to bail by a High Court judge on 6th July 2000. He made it clear that he was not seeking an application for habeas corpus, but proposed to submit written representations to the Secretary of State as to why he should not be surrendered to the United States. He made those representations in a detailed letter dated 20th October 2000. In short, he relied upon his current mental health, the effect on his wife's health, the effect on the welfare of his children, particularly the health of his son Joshua, and his other personal circumstances.

The history of this matter discloses a number of detailed reports by psychiatrists as to his mental health, particularly in relation to what was shown in those reports to be a serious risk of self harm. The representations of 20th October 2000 enclosed a number of medical reports. There were two reports from Dr Gayford, the first dated 30th November 1999. In that report, Dr Gayford, a consultant psychiatrist and honorary senior lecturer, stated that the claimant was faced with a crisis that he was unable to deal with and was determined that he was not going to face. Dr Gayford said:

In a later report dated 26th June 2000, Dr Gayford says that the claimant:

The representations also included a report from Dr Hallström dated 15th August 2002. Dr Hallström is the Medical Director of the Florence Nightingale Clinic at Chelsea and an honorary consultant psychiatrist at Charing Cross Hospital. Dr Hallström took the view that the claimant was genuine in his distress and that his suicidal threats should be taken seriously. He said that he had been unwell for two years and his condition was worse by the time of this report. He said that on the balance of probabilities the claimant was not fit to stand trial to defend himself in American court proceedings; he would have trouble dealing with substantial amounts of evidence. He said he was not emotionally robust, and would not cope well with rigorous and extensive cross-examination.

There was a further report relating to Mrs Warren from a community psychiatric nurse, which described her panic attacks, sleeplessness, feelings that she wanted to withdraw from others, and poor concentration. A report from a family services manager dated 16th October 2000 described the situation of Joshua, now aged seven, who suffered from brain damage and exhibited some autistic tendencies.

Subsequent to that report, the Secretary of State arranged for his own medical report. A report was obtained from a psychiatrist, Dr Shetty, dated 19th December 2000. In that report, Dr Shetty concluded that the claimant was suffering a mixed anxiety and depressive reaction which started off as an adjustment disorder consequent to the police investigation and threat of deportation. He took the view that the claimant was under disability, as he put it, in relation to his trial, and that his mental health would deteriorate further should he be separated from his family. It would increase what he described as "his suicidal ideation". He took the view that it would be unlikely that there could be a conclusive trial, even on removal to the United States.

Dr Hallström signified his agreement with that view in a further report dated 10th January 2001. Further representations were made on the claimant's behalf on 19th January 2001. On 4th May 2001 a further consultant psychiatrist, Dr Crook, gave his opinion that the claimant was unfit to plead and under disability by English legal criteria. He said:

Dr Shetty provided a second report on 4th July 2002, obtained on behalf of the Secretary of State. He said that the claimant's overall health had deteriorated since his previous interview. He was more anxious, pessimistic and less able to deal with legal matters. Dr Shetty remained of the view that he was unlikely to be able to withstand a trial, and was under disability. He continued to be concerned about his mental health and the prolonged wait, which he thought had contributed to his overall deterioration.

As a result of requests from the Secretary of State, the Supreme Court of New York intervened by appointing a psychiatric social worker, but not a qualified psychiatrist, Mr Hillel Bodek, as a mental health expert and special master in the claimant's case. I shall return later to the precise terms of his appointment. Mr Bodek gave a report dated 12th June 2001. In that report he said:

He continued by pointing out that if Mr Warren's adjustment disorder was of such severity as to render him unfit for trial, he ought to have had inpatient psychiatric care or far more intensive outpatient treatment. That failure to provide more intensive treatment indicated to Mr Bodek that Mr Warren's overall mental condition was not so severe as to render him incompetent to proceed at this time. He repeated that he would have expected more intensive treatment. He concluded that it was far more likely that he was exaggerating his real symptoms in an attempt to affect the Home Office's determination in this matter.

Mr Bodek then continued by pointing out the arrangements that would be available for Mr Warren should he be extradited. He would be placed at the Bellevue Hospital Center Forensic Psychiatry Service for a period of inpatient evaluation. An appropriate treatment plan would be developed for him so that the full range of psychiatric services could be provided such as he required. If he was released on bail, he would be afforded outpatient mental health services. Further, a mechanism would be put in place so that he could maintain regular contact with his family in the United Kingdom whilst he was in the United States. He took the view that both he and his colleagues could provide necessary mental health services in New York.

In what he described as "an abundance of caution", he recommended that the claimant should be taken into custody in the light of the fears of suicide, and held in a mental health unit under observation pending his prompt transfer to New York. He concluded that he could be adequately treated with intensive psychotherapy and psychopharmacotherapy with various supportive services. He concluded:

In a further report dated 20th December 2001, Mr Bodek amplified the medical care he would receive in the United States, the living arrangements that would be made available to him were he to be released on bail, and the nature of the contact he would be permitted to maintain with his family. He repeated in a third report dated 17th July 2002 his doubts arising from the lack of intensive treatment within the United Kingdom. He reiterated also the availability of mental health services and other supportive services within New York. He concluded in that report:

On 16th August 2002 Dr Crook commented on those remarks of Mr Bodek and described them as "supposition, speculation and unreasoned". Dr Shetty was shown in September 2002 a further report from Mr Bodek dated 5th September 2002, and earlier reports, and maintained his view that the claimant, if removed from his family, would suffer from a significant crisis. He said:

Further representations were made on behalf of the claimant on 25th September 2002. The Secretary of State's decision letter, which is impugned in these proceedings, is dated 4th November 2002:

The legal framework in which this application falls to be considered is not in dispute. Extradition to the United States is governed in particular by Schedule 1 to the Extradition Act 1989. Pursuant to paragraph 7(1) of Schedule 1, the district judge has to consider whether there is a case to answer before committing one who is it is proposed to extradite to prison.

By paragraph 8(2) of Schedule 1:

There is no dispute but that in the exercise of his discretion, the Secretary of State may decline to order surrender if it would be wrong, unjust or oppressive to do so: see Atkinson v United States of America [1971] AC 197 at page 232 G to H. In R v The Secretary of State for the Home Department, ex parte Patel [1995] 7 Admin LR, page 56, Henry LJ emphasised the importance of the Minister's power to decline to order extradition as an important safeguard built into the extradition process for the benefit of one whom it is sought to extradite.

The jurisdiction of this court in reviewing the exercise of the Secretary of State's power under paragraph 8(2) of Schedule 1 is, again, not in dispute. The question as to the intensity of review which this court should deploy is of little significance in this case. If the Secretary of State was wrong to conclude, as he did conclude, that genuine issues arose as to this claimant's fitness to stand trial in New York, then it is accepted the Secretary of State should not have ordered his return. Nor is it disputed that Article 8 of the European Convention on Human Rights is engaged. The approach of this court is, therefore, that which was identified by Lord Steyn in the by now well-known paragraphs 27 and 28 in R(Daly) v Secretary of State for the Home Department [2001] 2 AC at page 532.

This court must consider whether the Secretary of State has struck the balance fairly between the interests of the claimant's rights enshrined in Article 8 and the needs of international cooperation in seeing that those accused of a serious crime are brought to justice. This court is not entitled to substitute for that of the Secretary of State its own decision, but must rather decide whether his decision fell within the margin of discretion afforded to the Secretary of State as primary decision-maker. The essential question in the instant case is whether it was open to the Secretary of State to conclude that there were real or, as he put it, "genuine issues" as to the state of the claimant's mental health which it was appropriate for the court in New York to determine, if he ordered him to be returned there for trial.

All the medical experts in this country agree firstly that the claimant had been, and remains, seriously unwell; secondly, that if the issue were to be tried in this country, the claimant would at present be found not fit to stand trial. Both Dr Hallström and Dr Shetty were approved under section 12 of the Mental Health Act, and have concluded that on trial in this country of that issue, he would, so far as one could see, be found to be unfit. Thirdly, the experts agreed in this country that his mental state would deteriorate substantially were he to be extradited. It was fourthly agreed that Mrs Warren herself was suffering, and her son Joshua's condition requires the presence of his father to assist in the difficulties that that child faces.

To be set against that, there is the evidence of Mr Bodek, who is not himself qualified to give evidence in this country. He is not a psychiatrist. He has not seen all the medical reports, nor the medical records. He has not discussed the situation of the claimant with any psychiatrist here, and, most importantly, he has not himself seen the claimant. In those circumstances, it is submitted by Mr Perry on behalf of this claimant in submissions that lost nothing in their cogency by the brevity with which they were made, that the Secretary of State should only have looked at and considered the psychiatric evidence from the doctors in this country. He submits that Mr Bodek was guilty of making speculative and unreasoned assertions as to the claimant's fitness to stand trial, and as to the exaggeration of his symptoms. He should have rejected those views and accorded them no weight, or reached the conclusion that they were of so little weight that they could not be set against the unanimous views of the doctors in this country in reaching the conclusion that the claimant was not fit to stand trial, and was likely to remain not fit were he to be returned to the United States. In those circumstances, he submits, it would be wrong, unjust and oppressive to return the claimant to the United States for trial. The Secretary of State's discretion, he submitted, must be exercised so as to safeguard one whose extradition is sought against injustice and oppression. If the Secretary of State did not do so in this case, he argued, it was difficult to see that the duty of protection imposed upon the Secretary of State would ever avail a claimant in any case.

The starting point, in my view, must be the proposition that it is part of the trial process that there should be a determination, where such an issue arises by the court, of the question whether a defendant is fit to be tried. The procedures in this country were explained by the House of Lords in R v H [2003] UKHL 1. In the speech of Lord Bingham, he analysed the procedures in this country under the Criminal Procedure (Insanity) Act 1964 and the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 in the context of Article 6. He concluded his analysis at paragraph 4 by saying:

In the context of extradition proceedings, it is for the courts of the requesting State to determine those issues. They are questions of fact relevant to the issues of fitness of trial, which are for the courts of the requesting State to determine. Such a determination is not for the executive or for doctors, but are matters appropriate for judicial determination, just as other questions of fact are for the courts of the requesting State. They are not for the Secretary of State exercising his powers under paragraph 8(2) of Schedule 1 of the 1989 Act (see in a different context R v Secretary of State for the Home Department, ex parte Elliott [2001] EWHC Admin 559 at paragraph 27) provided, of course, always that there exist proper procedures which are fair to an accused for the determination of such issues.

The Secretary of State was required to consider whether it would be wrong, unjust or oppressive to order the return of the claimant for trial and, as part of that trial, for the court in New York to determine whether the claimant was fit to stand trial. That question itself turned upon whether the reports, read as a whole, disclosed a real issue as to this claimant's fitness to stand trial, and whether, even if he was fit, it would be oppressive to return him for that issue to be tried in the light of the evidence as to the risk of deterioration in the claimant's mental condition should he be surrendered to New York for trial. There is no dispute but that if there was no real issue as to his fitness to be tried, then it would be oppressive to return him: see Re Davies, an unreported decision of this court, 30th July 1997. Nor is it disputed that if there was a real issue as to his fitness to be tried, it would be appropriate that that issue should be determined by a court in New York.

The essential issues are themselves focused upon the view the Secretary of State was entitled to take as to the impact of the reports of Mr Bodek. He was, as I have recorded, not a psychiatrist. He had not seen the claimant, nor had he seen underlying records or all the reports. It is important to observe that the Secretary of State did not himself purport to determine the issue; rather he was astute in avoiding so to do. He concluded, on the contrary, that there were real issues to be tried and, I repeat, in his decision letter he said:

Mr Bodek's terms of reference are recorded in an order of the Supreme Court of the State of New York. He was appointed as that court's expert and special master to evaluate, treat and otherwise to help address issues and concerns relating to mentally and/or physical ill defendants. He was ordered by the court to enquire on behalf of the court into the mental and physical health and other psychosocial needs of the defendant in advance of his extradition. He was ordered, secondly, to obtain and review records relating to the defendant's mental and physical needs, care and treatment. He was ordered to establish a comprehensive treatment and service plan to ensure continuity of any needed health and mental health evaluation, and to set up a mechanism for contact in the United Kingdom with his family and the treating professionals in this country. He was, finally, ordered to take any and all such other steps as may be necessary to assure the defendant's mental health and other psychosocial problems. The order further required the New York City Health and Hospitals Corporation, the Bellevue Hospital Center and other institutions, to provide assistance and cooperation to Mr Bodek, and required Mr Bodek to report back to the court.

In short, the Supreme Court in New York provided for assessment by psychiatrists, both on behalf of the court and on behalf of the claimant, at the Bellevue Hospital, New York, and various other safeguards in relation to the claimant's health in New York. In particular, such health care and psychiatric support as he needed would be provided free, and a defence appointed psychiatrist funded by the State would be available to the claimant. It is of further importance to note he would not be left in a state of limbo which, as was well-known to the medieval religious, was a state bordering on Hell. No such state was to be imposed upon this claimant, so it is said, because any assessment would take place within a comparatively short period of time. In particular, an undertaking is recorded in a memorandum from the District Attorney that the issues of fitness would be taken very seriously, and would be brought before the court with expedition. It is recorded in that memorandum that if the claimant was not found initially fit to stand trial, and was not treated successfully within a matter of months, he would not be tried in New York and would be returned to the United Kingdom. Thus, the whole process, it is undertaken, would not take place within a longer period than what is described as "a matter of months"; in other words, as I understand it, in less than a year.

Despite those safeguards, to which the Secretary of State was bound to pay heed, there remains the question as to whether there was any prospect of a view different from that reached by the doctors in this country likely to be reached within the Supreme Court of New York as to the fitness of the claimant to stand trial on his surrender. Mr Bodek had reached the conclusion, without seeing the claimant, that he was likely to be exaggerating. He said as much in his report dated 12th June 2001:

Both Dr Crook and Dr Shetty, retained on behalf of the Home Office, disagreed with that view in subsequent reports. I am prepared to accept that when weighed against the view of expert psychiatrists in this country, the view of Mr Bodek that the claimant was likely to be exaggerating is of little, if any, weight. But it does not follow that the Secretary of State ought to have ignored his views in considering whether there was any genuine issue as to the claimant being fit to stand trial in the United States. I ought to recall that the Secretary of State himself did not conclude that the claimant was exaggerating; merely that there was a genuine issue to be tried. Mr Bodek did not say that the claimant was malingering. It is beyond argument that the question as to the claimant's mental condition was a question of degree. In assessing how serious the claimant's mental condition was, both Mr Bodek and the Secretary of State were entitled to bear in mind the fact that the claimant had not in fact undergone any intensive treatment as an inpatient in a hospital of the kind proposed in New York, should, on assessment, that be perceived to be necessary. His condition was not apparently so severe that he had to be treated as an inmate.

Further, both Mr Bodek and the Secretary of State were entitled to look ahead and consider what the effect on the claimant's mental state would be on his return when he would have to confront the reality that a trial was going to take place in New York. Mr Bodek and the Secretary of State were entitled to take the view that the future would be worse in prospect than in reality, particularly after the treatment which Mr Bodek considered might have significant results. The Secretary of State was also entitled to have regard to the claimant's attitude as expressed to doctors earlier, particularly in 1999 and 2000, that, like many others facing extradition, he announced his refusal to return, an attitude that might be regarded as independent of any medical condition.

In his report dated 26th June 2000, Dr Gayford recorded that his attitude was that he did not feel he was going to receive a fair trial; he would not be prepared to instruct counsel or to participate in the trial. Later, it was recorded that he would not in any circumstances be prepared to go to the United States to face his trial (see the report of Dr Shetty dated 9th September 2002). There were, thus, features of this case, irrespective of Mr Bodek's views as to whether the claimant was exaggerating, on the basis of which the Secretary of State was entitled to conclude that on return to the United States this claimant would not inevitably be found to be unfit to stand trial. True it is that Mr Bodek had not seen all the medical records, nor the earlier reports of Dr Gayford of November 1999 and June 2002, or Dr Hallström of August 2000, nor had Mr Bodek seen the defendant. Of those features the Secretary of State was well aware. But it is plain that Mr Bodek had sufficient information in order to form a view as to possible treatment within New York. Mr Perry in his submissions was unable to point to any particular fact which undermines Mr Bodek's view that there were real issues to be tried, and a real prospect that the claimant would be fit to stand trial after treatment.

I conclude, for those reasons, that there was no basis for asserting that Mr Bodek should have been ignored altogether, or his views afforded no weight whatsoever. There was, in my view, material upon which the Secretary of State could conclude that there was a real issue as to whether, on return to New York, the claimant would be fit to stand trial or become fit within a short period of time after treatment. There was material on which he could be satisfied that there would be proper and fair procedures to determine the issue of the claimant's fitness to stand trial, and proper facilities made available to take care of the claimant in the interim. Further, the Secretary of State was entitled to be satisfied that that process would not be unduly prolonged in the light of the assurances from the District Attorney.

In those circumstances, without disagreeing with the views of the doctors in this country as to the claimant's current condition, the Secretary of State, in my view, was entitled to conclude that there were genuine issues to be tried. This case is far removed, in my view, from the circumstances in the case of Re Davies. In that case there was no issue as to the applicant's mental condition. There was no evidence suggesting that there was any possibility of recovery, and no evidence, in contrast to this case, as to how long it would take before he was tried in Canada.

In the light of the conclusion that there were genuine issues as to the claimant's fitness to be tried, the Secretary of State then had to consider whether it was proportionate to order his return, particularly in the context of Article 8. Some faint reference was made by Mr Perry to Article 5, but it was not contended that any detention in the course of the extradition process would be arbitrary, and no question of proportionality arises. The Secretary of State, in the context of Article 8, was bound to weigh the effect upon this claimant and his family against the need for international cooperation in bringing an accused to trial of serious offences. The Secretary of State's obligation was to strike that balance fairly. The effect on this claimant and his family was plainly serious. Any further pursuit of extradition was likely to cause deterioration in his condition. But that consideration fell to be judged in the context of the fact that there was a genuine issue as to the degree of gravity of the claimant's symptoms, and the prospect of alleviation of those symptoms on treatment.

In my judgment, once the Secretary of State had concluded, as he was entitled to do, that there were genuine issues as to the claimant's fitness to stand trial, and as to his future treatment, he was entitled to conclude that those issues should be determined by the court in New York in the course of a fair process, and having been afforded fair and careful medical treatment within a limited period of time. In those circumstances the Secretary of State was entitled to conclude that the risk of deterioration did not outweigh the need for an accused to stand trial in respect of serious accusations. He was entitled, for those reasons, to conclude that it was not wrong, unjust or oppressive to order the claimant to be returned for trial in New York. In those circumstances I would, for my part, dismiss this application.

LADY JUSTICE HALE: I agree. Because of the importance of the decision to the claimant and to his family, I wish only to emphasise my main reasons for doing so. The object of extradition is to return a person who is properly accused or has been convicted of an extradition crime in a foreign country to face trial or to serve his sentence there. This includes the determination of whether he is fit to be tried, an issue which, under the criminal justice systems of both this country and New York, is decided by the court, and not by members of the executive or the medical profession. The extradition process is only available for return to friendly foreign states with whom this country has entered into either a multi or a bilateral treaty obligation involving mutually agreed and reciprocal commitments. Mr Perry, on behalf of the claimant, accepts that there is a strong public interest in our respecting such treaty obligations. Such international cooperation is all the more important in modern times, when cross-border problems are becoming ever more common, and the need to provide international solutions for them is ever clearer.

Of course, there must be safeguards to protect the person accused. Some are for the courts to determine, for example whether he has been accused of an extradition crime or, in this case, whether there is a prima facie case against him. But in this case there is no original jurisdiction in this court to determine wider issues of fairness and potential hardship. That power lies in the Secretary of State. The well-established test, as my Lord has said, is whether it would be wrong, unjust or oppressive to return the claimant. It is also accepted that the right to respect for private and family life in Article 8 of the European Convention on Human Rights is engaged in this decision, and so the Secretary of State has to strike a fair balance between the competing interests of that right and the public interest to which I have already referred.

It will not generally be unjust to send someone back to face a fair process of determining whether or not he is fit to face trial. I accept that it may be wrong or oppressive to do so if the inevitable result will be that he will be found unfit. But even in those circumstances, there may be countervailing considerations. For example, if there is the counterpart of our process in the other country, where a person may be found to have committed an act which would otherwise have been a serious crime, particularly if it were to be a crime of violence involving risk to the public, and if it would then be appropriate to detain the person for medical treatment, it could be in the public interest to enable that process to take place. That is not this case, but I would not wish to accept that it is inevitably going to be oppressive to return somebody in such circumstances.

The issue of unfitness to plead, as we term it, is rarely a straightforward issue, and I would wish, because he was too modest to do so, to quote from the judgment of Moses J in the case of Re Davies, to which he has already referred, at page 11C:

I am not here accusing this claimant of manipulation because I am not finding facts. But careful scrutiny is undoubtedly warranted in the circumstances of a case like this. It is accepted that the assessment of his medical condition is a matter of degree. He is not suffering from a psychosis, or what is usually termed "a major mental illness". He is suffering from a serious illness in reaction to the predicament in which he currently finds himself. Part of that reaction has been a determination from a very early stage not to return to the United States and face up to the problems involved. Some of that early agitation appears to have been based on fears about the outcome of his return to the United States, which have turned out, in the light of the outcome for two of his co-accused, to be quite unfounded. In those circumstances the Secretary of State was entitled to decide that real issues do arise in this case.

Were it necessary to do so, I would be inclined to the view that, even without Mr Bodek's beliefs as to the plausibility of the unfitness claim, the Secretary of State would be entitled to allow the United States court to decide the matter, provided that he was properly satisfied of the fairness of the process, the appropriateness of the care and treatment and other facilities that would be available to look after the claimant on his return, and other hardship related issues both before and after the determination of whether he was fit to be tried. Indeed, it does appear from the terms of his appointment that the main role of Mr Bodek was to do just that, to make the arrangements to assess what was needed in order to look properly after the claimant on his return. But, of course, we also have the comments of Mr Bodek, who is undoubtedly expert, although not a medical expert, as to the possibility that there may be issues which deserve proper attention in a court.

So for all of those reasons, I agree that this application must be refused, and it is refused.

MR PERRY: Thank you very much. The warrant, of course, in a case where he was summoned -- he is currently on bail with sureties and a condition of residence, and that is continued. It is expected that he will surrender at a day and time to be notified by the Secretary of State, and in those circumstances it is not expected that there is any application for his surrender today. May I simply thank the court.

LADY JUSTICE HALE: Are you content for bail to continue on the same terms as before? [Mr Eadie indicated assent.]

MR PERRY: Other than that, I ask for no order.