Griffin, R (on the application of) v City of Westminster Magistrates Court

On 3 December 2010 District Judge Daphne Wickham sitting at the City of Westminster Magistrates Court ordered the extradition of Mr Ian Griffin (whom I shall call the appellant) to France to face trial for murder. The claim challenges the refusal of the district judge to adjourn the hearing on 3 December and the appeal is against the decision to extradite. It was apparent that the claim was arguable and so I granted permission and dispensed with all procedural steps so that, with Mr Watson’s consent, I could deal with the substantive judicial review claim. The appellant must of course pay the necessary fee resulting from the grant of permission.

The victim, a Polish lady called Kinga Legg who was at the material time the appellant’s partner, was found dead in the bath in a room in the Bristol Hotel in Paris on the evening of 26 May 2009. She and the appellant had been staying in the hotel over the night of 23/24 May. They had had dinner in a restaurant in the evening of Saturday 23 May, but had quarrelled, both having consumed a considerable quantity of alcohol. He walked out and went back to the hotel, only to find, as he told a psychiatrist whose report is before the court that she was there, having taken a taxi. Their relationship had been turbulent which had, he said, affected his mental state. The stay in Paris was intended to be over night on the way to the two being married.

He claimed that he remembered nothing else that happened until he woke up the next morning to find her lying in bed. The room had been trashed and its contents broken. At first, he thought she was asleep, but he noticed blood around her mouth. He tried to wake her and put her into a hot bath and gave her mouth to mouth resuscitation. He realised that she was dead. He panicked and left. He left in his father’s car but realised after a time that he could not drive safely and so he called his parents to collect him from France. He remembered little else. He was eventually found by the police in a tent in Cheshire on 1 June 2009.

His account is bizarre but it is obvious that there is a strong prima facie case that he was responsible for Kinga Legg’s death. The EAW was issued on 29 May 2009. Following its execution on 1 June 2009 he was brought before the City of Westminster Magistrates Court and remanded in custody. He was found to be unfit to attend court due to his mental state and on 27 August 2009 was transferred to Langdon Hospital in Dawlish pursuant to section 48 of the Mental Health Act 2003 under the care of Dr Parker, a consultant forensic psychiatrist.

There was a perceived risk of self harm and of suicide. I shall have to refer to his report in more detail in due course, but Dr Parker’s diagnosis was that he was suffering from a depressive illness. His condition was exacerbated by withdrawal from alcohol and benzodiazepine dependence. The claimant asserted that he was suffering from bipolar affective disorder or schizophrenia, but Dr Parker disagreed and found no evidence of psychosis.

On 2 February 2010 Dr Parker recommended that the claimant be transferred back to prison where he felt the risks of self harm and suicide would be properly managed. He was transferred to Wandsworth Prison on 12 March 2010 where he was in the care of the Mental Health Inreach Team. Dr Parker believed he was fit to attend court but he was refusing to engage with treatment which would ameliorate his distress. He tended to put on symptoms when he knew he was being observed and so it was not easy to know the true extent of his illness. But he was unlikely to improve so long as court proceedings were not brought to a conclusion.

When he knew he was to be transferred to Wandsworth, he stabbed himself with an electric toothbrush whose head he had removed. He was taken to hospital but the injury was not serious. On 21 April 2010 there was a far more serious episode of self harm when he inflicted a deep cut to his left wrist which severed the radial artery. This required his admission to hospital and surgery to the artery. It was said that this was a serious attempt to commit suicide.

The first report available antedated this episode. It was prepared by Professor Coid who was instructed by the appellant’s solicitors and who saw the appellant on 29 June 2009 in Wandsworth prison. He noted that there were signs of self injury to his left wrist. The appellant denied then that he had suicidal ideas. He had a history of excessive drinking and misuse of amphetamines. Professor Cold concluded that when remanded to Wandsworth Prison, he was suffering from delirium tremens, withdrawal symptoms from benzodiazepines and a depressive illness. The delirium tremens was life threatening; it was believed that he might have been suffering from encephalitis but this proved not to be the case. Professor Cold’s view was that he needed hospital treatment and to extradite him then would be oppressive. He recommended a transfer to hospital.

I have already referred to Dr Parker’s reports. The appellant failed to co-operate with those treating him and made frequent complaints about lack of proper treatment. There were in Dr Parker’s view elements of secondary gain, but it was not clear whether these resulted from a conscious decision by the appellant to feign or exaggerate symptoms or this represented extremely poor coping strategies in the context of significant stress. Certainly he showed tendencies to invoke sympathy from others to resolve his difficulties, but he chose to refuse to engage or co-operate with those who sought to treat his condition. In his prognosis, Dr Parker said this (paragraph 4.11):-

”it is clear in my opinion that in the absence of resolution of the court case his presentation is likely to remain the same. Delaying the court case will only serve to delay his recovery. Whilst he will find this difficult, it is something that needs to take place if his mental state is to improve. I would furthermore opine that treatment (whether pharmacological or psychosocial) is highly likely to improve his current presentation in the absence of court proceedings being concluded.”

Following the episode of 21 April 2010, a number of reports were obtained. Dr Pamela Waters, a consultant and member of the Inreach Team at Wandsworth who had care of the appellant, noted that the episode occurred when the appellant was told that he was medically fit to attend court. She was very strongly of the view that the protracted nature of the legal proceedings was most definitely contributing to his psychological problems.’ There was, she believed, a chronic ongoing risk of suicide which related more to his fear of being extradited to France rather than to any mental illness per se. She recognised that under stress such individuals as the appellant could, as she put it, ‘utilise these acts of self harm to exert control over their environment’. It was necessary to evaluate his condition continually to ensure that he did not at some juncture become mentally ill.

The appellant’s solicitors obtained a report from Dr Seneviratna. He concluded in his report dated 28 May 2010 that the appellant was suffering from an adjustment disorder with features of depression anxiety, anger, tension and worry. This had been the psychological reaction to the trauma of being arrested and remanded in custody on a charge of murder and grieving the loss of his comfortable life style, status and relationships. There was insufficient evidence to conclude that he was suffering from bipolar affective disorder, but it was possible one might, as he put it, be ‘unmasked with time’. He regarded the episode as a serious and planned suicide attempt but the appellant did not acknowledge that his suicidal feelings, which he said he had all the time, might also relate to his psychological aversion to the prospect of being extradited. It was noted that previous episodes of self harm had occurred when under stress from particular crises in his life.

Dr Seneviratna thought that it was likely that the risk of further depressive episodes and self-destructive and suicidal behaviour would escalate further when the appellant was extradited to France. He thought the extradition hearing should be adjourned for 3 months if the appellant demonstrated a willingness to participate in and did participate in a therapeutic programme. The appellant did not.

The Crown Prosecution Service obtained a report from Dr Joseph who saw the appellant on 12 July 2010. He saw all the previous reports and the inmate record in the prison. The appellant told Dr Joseph that he had not been treated properly in Devon and that he had made numerous attempts at suicide by putting a plastic bag over his head and taking a quantity of sleeping tablets which he had saved up, by trying to drown himself in his bath and by drinking his urine because he had ‘been told it is toxic’. What credence can be attached to this account is difficult to assess. I suspect very little.

Dr Joseph asked the claimant about his understanding of the extradition proceedings. He said that he would rather go to France and get better care there. He wanted to go to a French psychiatric hospital. Dr Joseph had some experience of French psychiatric services and said that (as might have been expected) they were very similar to those available in the United Kingdom and the French authorities were ‘equally capable as their British counterparts to provide the level of care required to reduce the risk of suicide’ in the appellant. Dr Joseph also observed that there was a marked manipulative component to the appellant’s behaviour as shown by the entries in his inmate medical record which revealed inconsistencies in his presentation dependent on his circumstances, particularly the progress of the extradition proceedings.

The appellant was seen on 13 July 2010 by Dr Wilkins who had been instructed by his family. He had had no access to any background information and saw him in the visits area. Accordingly, he had no opportunity for discussion of the appellant with clinical staff. From the account given by the appellant of his past and present condition and his observations he concluded that the appellant was suffering from bipolar affective disorder. He was a suicide risk and needed to be in a clinical rather than a prison situation. While he could not rule it out completely, he thought it highly unlikely that the appellant was malingering. Due to the conditions under which he had to act, it is obvious that little weight can be attached to Dr Wilkins views if they conflict with the views of other doctors who have been more involved with the appellant or have had the opportunity to discuss his case with clinical staff, to see other reports and his medical record.

On 17 August 2010 the appellant again inflicted a deep cut to his left wrist. There was a very substantial loss of blood and he was found in his cell with a barely discernable pulse and having lost control of his bowels. He required hospitalisation and further surgery. A second report was obtained from Dr Senerivatna following an examination he carried out on 4 November 2010. He regarded what the appellant had done as a serious suicide attempt. The appellant told him that he had been under great stress that week and had been so depressed that he had felt a persistent compulsion to end his life.

The appellant said that he recognised that it was inevitable that he should stand trial and so go to France and he was looking forward to the forthcoming court hearing on 8 November 2010 which he was to attend through a video link. I was told by Mt Butt that he was indeed anxious to go on trial but that he wanted it to happen only when he felt ready for it.

Dr Senerivatna thought that the appellant was experiencing what he called a rapid cycling bipolar disorder. His assessment was that there was a high risk of repeated and serious suicide attempts in the future especially when stress moods escalated. He thought a further 3 month period of treatment was desirable particularly as the appellant was being assisted by the care of a particular mental health nurse.

The extradition hearings took place on 8 and 12 November 2010. On 8 November Drs Senerivatna and Joseph gave evidence and were cross-examined. The reports from the other doctors were before the judge. On 12 November submissions were made by counsel for each party. The appellant attended the hearings through video link. In her judgment, the district judge records that she had observed the appellant over the two court sessions and concluded that he had a remarkable ability to absorb information and comprehend what was being said. He was well able to communicate. He showed signs of stress, usually in the form of interruptions, and needed managing and breaks. She saw no reason why a French court could not manage to try him in a just fashion. Most importantly he was clearly able to understand what was going on and give proper instructions to his representatives. He was certainly fit to plead.

The district judge was due to give her judgment on 3 December. On 18 November the appellant took a large quantity of sodium valporate tablets: he said he had taken 60, but it may have been 40. Whatever the precise quantity, the effect was serious since the appellant suffered mild kidney failure so that he was detained in hospital on 1 December and unfit to attend the hearing on 3 December. The appellant’s solicitors tried but were unable to obtain any detailed information about the effect of what was regarded as a suicide attempt by the appellant on his physical and mental health as a result of it.

Mr Butt applied for an adjournment of the hearing on 3 December because of the appellant’s inability to appear and ignorance of precisely what had happened on 18 November and of the appellant’s present condition. Mr Butt asked that there should be an up to date report since his solicitors had been unable to obtain any material information. A lengthy adjournment was not anticipated: at that time, 14 days was requested. The district judge’s refusal to adjourn has given rise to the judicial review claim.

In a note dated 7 January 2011 the district judge has set out what information she had and why she refused an adjournment. She had a copy of the assessment notes from St George’s Hospital which stated that the appellant had overdosed with sodium sulphate tablets, had not eaten or drunk for 4 days and was psychotic. He refused to speak to anyone at the hospital or to undertake blood pressure or ECG tests. She was told by Mr Watson that Dr Joseph had sent a message in which he expressed incredulity as to the amount of pills taken and little surprise that there might be physical symptoms affecting the kidneys. She decided that further information would not alter her conclusion since any further delay was in her view likely to attract a further incident. In paragraph 20 of her judgment dealing with Dr Senerivatna’s suggestion that a 3 month adjournment was desirable she said this:-

“Having heard and read all the evidence I do not believe any further adjournment is appropriate. The defendant’s cycle of mood swings and personality disorders have to be managed whether in France or in the U.K. Whilst there is inevitable fluctuation in these mood swings I find that the stress and anxiety surrounding court proceedings and their outcome is a contributory factor to the defendant’s reactions which in the circumstances are normal but on occasions quite extreme.”

She recognised that there had been two serious attempts at self harm, although she did not categorise them as attempts at suicide. She found it unnecessary to make any findings on manipulation. Dr Joseph, whose view she said she preferred, had said there was a ‘risk of further self-harm and a possible risk of suicide’.

There was produced before me a report from Dr Karen Brown dated 25 March 2011. She was a consultant forensic psychiatrist at Wandsworth prison and had been responsible for the appellant’s mental health between August 2010 and 9 March 2011 when he was transferred to the Personality Disorder Unit at Broadmoor Hospital. The appellant obtained a book on bipolar disorder and thereafter complained of symptoms consistent with such disorder. Following the cutting of his wrist in August 2010, his conduct was relatively stable and, although he reported suicidal thoughts, he took no action on them. In November he changed, due it would seem to the stress of the court proceedings. He began to refuse food and drink and, having taken the overdose on 18 November, he informed a nurse what he had done (it appears he then said he had taken 40 tablets) and was taken to hospital. He failed to co-operate with treatment and, following a fortnight failing to eat or drink properly, he was found to be suffering from mild renal failure. On his return to prison, he demanded that he be prescribed lithium, which is used for bipolar affective disorder from which those concerned with his case concluded he was not suffering. In the end, it was decided that lithium under strict conditions was a lesser risk than continued refusal to eat and drink. He failed to co-operate and continued his refusal to eat and drink.

Dr Brown discussed his situation with Dr Callum Ross, a consultant forensic psychiatrist from Broadmoor. She considered that his risk of completed suicide in the prison was very high either through self-laceration or fluid refusal. He required management in a hospital environment with specialist personality disorder treatment. During February 2011 he continued to refuse food and drink. When told he would have to be transferred to St George’s Hospital, he took sufficient fluid to avoid such a transfer.

Dr Brown’s conclusion was that the appellant suffers from a severe emotionally unstable personality disorder, evidenced by emotional instability and lack of impulse control. Emotional crises, often precipitated by very minimal occurrences, were associated with self-harm attempts some of which were life-threatening. He demonstrated narcissistic personality traits and a degree of paranoia, demanding special treatment and stating that others were out to sabotage his treatment or his criminal case. He was also capable of being instrumental in his actions, planning to harm himself sometimes for weeks in advance, secreting and hiding implements with which to self-harm and changing his psychiatric presentation frequently. Treatment in a specialist disorder unit offered the best hope of managing his suicide risk in the future.

Mr Butt submitted before the district judge and as Ground 1 of the claim that the district judge had no jurisdiction to proceed in the absence of the appellant. He relied on s.10 of the 2003 Act which, by subsection (1) provides:-

“This section applies if a person in respect of whom a Part 1 warrant is issued appears or is brought before the appropriate judge for the extradition hearing.”

The hearing continues until concluded by judgment and, submits Mr Butt, there is in the circumstances no power to hold any part of the hearing in the requested person’s absence. There is nothing in the 2003 Act which permits the court to proceed in the requested person’s absence.

Mr Butt was constrained to argue that a person who refused to appear in court or was disruptive nonetheless had to be brought before the judge by force and, if necessary, restrained or, I suppose, gagged if disruptive. That result is clearly absurd. Furthermore, it is difficult to follow the purpose of the need for physical presence if the requested person is represented and consents, perhaps because nothing he could say would be capable of affecting the outcome.

The district judge believed she had the power to continue in the appellant’s absence based on her recollection of a decided case. The case in question is R v Bow Street Magistrates Court ex p Government of Germany [1998] Q.B. 556. The magistrates declined to order committal because the defendant was unable to attend through illness but was represented and consented to them making the order in her absence. The governing statute was the Extradition Act 1989, s.9(2) of which provided:-

“For the purpose of proceedings under this section a court of committal in England and Wales shall have the like jurisdiction and powers, as nearly as may be … as a magistrates’ court acting as examining justices.”

Section 4(4) of the Magistrates Courts Act 1980 permitted examining justices to proceed in a defendant’s absence if he was disruptive or unable to be present for reasons of health but represented and was consenting to evidence being given in his absence. Thus the Divisional court could easily find the power by applying s.9(2) of the 1989 Act with s.4(4) of the 1980 Act.

S.9(1) of the 1989 Act provided:-

“A person arrested in pursuance of a warrant … shall … be brought as soon as practicable before … the court of committal.”

The equivalent provisions in respect of European Arrest Warrants (EAWs) in the 2003 Act are ss.6, 7 and 10. S.6(2)(a) and (3) require the defendant when arrested to be brought before the appropriate judge (a district judge) within 48 hours. S.7 requires the district judge to satisfy himself that the defendant is indeed the person named in the EAW and, if so satisfied, s.8 requires him to fix a date for the extradition hearing to begin and to remand the defendant in custody or on bail. S.10 is headed ‘Initial stage of extradition hearing’. I have already cited s.10(1).

Ss. 22 to 25 of the 2003 Act are covered by a rubric which states:-

“Matters arising before end of extradition hearing.”

They deal with a number of different matters which may arise and which might affect the possibility of the hearing continuing, whether temporarily or permanently. In the context of this case, the relevant section is s.25. This provides:-

“(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 in respect of whom the Part 1 warrant is issued 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.”

Mr Butt relies on s.25 in support of his submission that the district judge should have adjourned the hearing on 3 December, but also he submits that ss.22 to 25 show that, since matters can arise at any time before the hearing is concluded, the continuing presence (which may be by video link) of the defendant is needed.

S.9(1) of the 2003 Act is the equivalent section to s.9(2) of the 1989 Act, but it provides as follows:-

“In England and Wales, at the extradition hearing the appropriate judge has the same powers (as nearly as may be) as a magistrates’ court would have if the proceedings were the summary trial of an information against the person in respect of whom the Part 1 warrant was issued.”

Thus the powers follow those for summary trial rather than for hearings as examining justices. Mr butt submits that that difference, coupled with the provisions of s.10(1) of the 2003 Act, means that the Government of Germany case does not now apply.

He draws attention to s.11 of the Magistrates Courts Act 1980. S.11(1)(b) provides:-

“Subject to the provisions of this Act, where at the time and place appointed for the trial or adjourned trial of an information the prosecutor appears but the accused does not …

(b)

if the accused has attained the age of 18 years, the court shall proceed in his absence unless it appears to the court to be contrary to the interests of justice to do so.

This is subject to subsection 2A.”

S.11(2A) reads:-

“The court shall not proceed in the absence of the accused if it considers that there is an acceptable reason for his failure to appear.”

There was in this case an acceptable reason in that he was detained in hospital with mild kidney failure. Therefore, submits Mr butt, no power to proceed in his absence existed either in the 2003 Act or through s.9(1) in the powers of magistrates trying a summary information.

What weighed with the Court in the Government of Germany case (apart from the obvious inconvenience, unworkability and potential injustice if the power did not exist) was s.122 of the 1980 Act. S.122 provides as follows:-

“(1)

A party to any proceedings before a magistrates’ court may be represented by a legal representative.

(2)

Subject to subsection (3) below, an absent party so represented shall be deemed not to be absent.

(3)

Appearance of a party by a legal representative shall not satisfy any provision of any enactment or any condition of a recognisance expressly requiring his presence.”

Mr Butt sought to argue that s.10(1) of the 2003 Act did expressly require the appellant’s presence. I do not agree. While there is nothing in the 2003 Act which expressly permits the court to proceed in the defendant’s absence, there is nothing which expressly requires his presence and the importation of the powers of magistrates when trying an information summarily clearly recognises that s.122 of the 1980 Act will apply. Since this deems presence where the defendant is represented, it clearly overrides s.11(2A).

It follows that the district judge was right to take the view that she had jurisdiction to proceed to give judgment in the appellant’s absence. While in the Government of Germany case the court was concerned with the powers of examining justices, it recognised that the court had an inherent power to commit in the defendant’s absence if it could do so without any injustice to the defendant. (see per Lord Bingham CJ at p.562B and Jowitt J at p.583B). I see no reason why in dealing with extradition cases the court should not have a similar inherent power. This would only very rarely be exercised if the defendant’s representative did not consent, but I have no doubt that the power exists.

The question then is whether the district judge correctly exercised the power. It is to be noted that s.25(2) requires the district judge to consider whether the defendant’s mental or physical health is such as to render it unjust or oppressive to extradite him. Mr Butt submits that the district judge needed to have further information on the appellant’s condition having regard to what had happened on 18 November. Those representing him had been unable to obtain any sufficient details and it might have been that an up-to-date report could have shown that it would be oppressive to extradite him. I accept that the test to be applied was whether any fresh information might have made a difference to the district judge’s decision, not whether it would have done so. The district judge decided that any information was not going to alter her conclusions. It was, she said, clear to her that ‘any charge or threats of charge renders him anxious and any further adjournment or delay as far as I was concerned on the 3 December was merely going to attract another incident of a similar nature.’ This I think shows that she did not apply a wrong test since she was satisfied that any further delay would be likely to be damaging to the appellant and so further information could not have persuaded her not to decide as she did.

It is therefore necessary for me to determine whether it would be unjust or oppressive to extradite the appellant in the light of the material now produced before me. Thus the claim and the appeal came together, but, as I indicated in argument and counsel, as I understood them, agreed, if I were persuaded that more information were needed, I should allow the claim and remit the case for further evidence to be heard and perhaps further cross-examination. Only if I were persuaded on what was before me that it would be wrong to extradite, whether because unjust of oppressive or in breach of any of the appellant’s human rights (applying s.21 of the 2003 Act), should I allow the appeal and discharge the appellant.

It is, I think, obvious that the appellant, as he apparently recognises, must be tried for this serious offence and so discharge is not a practical option unless he is to be tried in this country. That can be done since he is a British national – see s.9 of the Offences against the Person Act 1861. But as yet no steps have been taken in that direction because it is apparent that, since the killing occurred in Paris, the French court should deal with it. Thus in reality if I am in the appellant’s favour, the right course for me to adopt would be to allow the claim and remit the case.

I have set out the relevant medical evidence in some detail because it is important to see what material conclusions should be drawn from it. It is apparent that there is a real risk of suicide. No doubt there is an element of manipulation, but, whether by design or otherwise, the self harm inflicted by the appellant has been life threatening. The district judge was inclined to treat it as self harm rather than attempts at suicide, but I have no doubt that the risk of suicide is real. But the appellant is likely to self harm in a sufficiently serious fashion so as to put his life at risk when stress builds up. The proceedings he faces at present involve his extradition, but I have no doubt that he would be likely, unless properly cared for and measures are taken to deprive him of the opportunity to self harm in a sufficiently serious way, to risk his life when, as would inevitably occur, stress built up in the trial. That would be as likely to happen if he were tried here as if he were tried in France. Further, I have equally no doubt that the district judge was correct to conclude that delay would trigger a further life threatening incident since again stress would build up. It is not insignificant to note that the appellant did not in his interview with Dr Joseph object in principle to going to France. Indeed, he said he would welcome it since his treatment in hospital there would be better.

The evidence before the district judge showed that, if he were extradited, he would be subjected to psychiatric examination and remanded in a hospital if that were necessary. Obviously, medical reports on the appellant would be forwarded to the French authorities – that is essential if he is to be extradited, - and, since the risk of suicide is, as the note from the French public prosecutor states, frequent, those responsible for dealing with such as the appellant would be well able to take care of him so as to avoid his suicide.

A risk of suicide is capable of amounting to oppression so as to prevent extradition. So much was decided by a Divisional court consisting of Sir Anthony May, P and Dobbs J in Jansons v Latvia [2009] EWHC 1845 (Admin). The court found as a fact that if returned to Latvia the appellant would commit suicide. The two offences in question in that case were theft and possibly burglary resulting in the theft of two mobile phones to the value of £450. As Sir Anthony May observed, they were not trivial but the court was not ‘concerned with the kind of offences that concern injury or serious attacks on an individual’. Murder is of course one of the most serious offences that can be committed. That is a matter which can properly be weighed in the balance in deciding whether extradition should take place notwithstanding a risk of suicide.

The courts’ reasoning based on the facts of the case will be found in paragraphs 26 to 30 of the judgment of Sir Anthony May, P. He said:-

“26.

Mr Lloyd in his persuasive submissions has submitted essentially this: that there is no evidence that the appellant’s condition will inevitably deteriorate notwithstanding the treatment that he will get in Latvia. He submits that the mere fact that there will be mental deterioration is not sufficient to cross the Article 3 threshold. The point of submission to which Mr Lloyd returned was simply this. The court must accept, as indeed I do, that there are appropriate arrangements in place in the prison system in Latvia and that, as he would have it, the appellant cannot establish that the Latvian authorities will not properly cope with his mental condition and properly cope with the risk of suicide.

27.

Set against that is the uncontradicted evidence not only that his mental condition will be triggered to deteriorate if he is returned to Latvia but also and in unqualified terms that he will commit suicide if he is returned to Latvia.

28.

Taking account, of course, of the fact that Dr Drayer is unable to express an opinion as to the effectiveness or otherwise of prison arrangements in Latvia, it is nevertheless, of course, within his competence and it is unchallenged that he can assess what the appellant’s mental state is and what he is able to predict will be the consequences of his return to Latvia, not because there may or may not be adequate arrangements when he got there, but from the very fact of his extradition.

29.

There is, in my judgment, a quite stark and single decision which the court has to make in this case and that can be expressed under section 25 as whether it would be oppressive to order his return. In my judgment, in a very difficult case, it would be oppressive. It would, in my judgment, be oppressive to order his return when there is, on any view on the evidence, such a substantial risk that he will commit suicide. It is not as if this is an appellant who is threatening to commit suicide without any history of having tried to do so. Not only is he threatening that he will commit suicide and the doctor believes him but he has in fact, for the same reason, attempted to commit suicide in Wormwood Scrubs Prison and very nearly succeeded I doing so. In reaching the conclusion that it would be oppressive to return him, this is not a reflection on the ability of the Latvian prison authorities to protect him and provide the necessary treatment. But an assessment, so far as the evidence enables one to do so, that the risk that he will succeed in committing suicide, whatever steps are taken, is on the evidence, sufficiently great to result in a finding of oppression. The same line of reasoning, in my judgment, could be applied to Article 8 and I do not think it is necessary to proceed to Article 3. Under Article 8 it seems to me that the inevitable proportionality judgment that has to be made, taking account of the seriousness of the offences, the need to honour international treaties and the finding that the Latvian authorities will, generally speaking, take all reasonable steps to protect him, nevertheless has to be weighed against the risk which the doctor does not express as a risk but as a certainty that he will commit suicide, his mental state having deteriorated.

30.

in my judgment, a judgment of proportionality for Article 8 purposes falls on the side of the finding that his Article 8 rights would be infringed.”

While the decision seems to have been based on Article 8 of the ECHR, if his human rights were breached, it would plainly be oppressive to extradite him and so s.25 would also have prevented extradition on the Court’s reasoning. Sir Anthony says as much in paragraph 29. it is also to be noted that Sir Anthony said in paragraph 1 that the case was not only most unusual but in one respect was to his mind exceptional.

Since Jansons, a number of appellants have relied on the risk of suicide as a bar to extradition. In R(Prosser) v Secretary of State for the Home Department [2010] EWHC 845 (Admin) decided on 21 April 2010 the court consisting of Sir Anthony May, P and Foskett J had to consider the claimant’s medical difficulties in an extradition to the USA. Her mental condition meant that there was said to be a severe risk of suicide. In paragraph 20, the court said this:-

“In principle a claim based upon a risk of suicide is capable of meeting the Article 3 threshold. But Mr Southey accepts that there is only one reported case based on the risk of suicide where extradition has been successfully resisted. That case was Jansons v Latvia (supra) where not only had the claimant recently actually attempted to commit suicide on account of his threatened extradition while he was in prison and very nearly succeeded; but also uncontradicted expert opinion was that he would commit suicide if he were extradited. It was not expressed merely as a risk. Jansons was in fact decided under Article 8.”

The court decided that the risk in Prosser of suicide was not sufficiently high is to meet the Article 3 or 8 thresholds.

While the assessment that suicide was a certainty if Jansons were extradited, the court did not limit the possibility of a suicide risk preventing extradition to the certainty of suicide. Prosser makes that clear. However, the risk must be a high one and so it is material to consider what steps to prevent suicide will be taken by the receiving state. Further, it will be material to consider whether the person in question is using suicide as a means to avoid extradition without any real intention to commit suicide if his attempt fails.

The next case in point of time is Rot v District Court of Lublin, Poland [2010] EWHC 1820 (Admin) decided by Mitting J on 23 June 2010. In paragraph 13 of his judgment Mitting J said:-

“The question must … be addressed and answered …: would the mental condition of the person to be extradited make it oppressive to extradite him. Logically, the answer to that question in a suicide risk case must be no unless the mental condition of the person is such as to remove his capacity to resist the impulse to commit suicide, otherwise it will not be his mental condition but his own voluntary act which puts him at risk of dying, and therefore may make it oppressive to extradite him. Untidy though it may be, and while Jansons remains good authority, the question must be approached in a somewhat less logical manner. When, as in Jansons, there is uncontradicted evidence that an individual who has made a serious attempt to kill himself will kill himself if extradited, it may be right to hold that it would be oppressive to extradite him. Anything less will not do.”

Mitting J then went on to cite a passage of the court’s judgment in Prosser which contained the sentence:-

“A very high risk would doubtless be capable of achieving the Article 3 threshold.”

Thus the sentence ‘anything less will not do’ does impose a somewhat too restrictive approach if Prosser is to be regarded as correct. Certainly Sir Anthony May, P who presided in both Jansons and Prosser did not apparently think that it had to be shown that suicide would follow if extradition took place in order that extradition should be prevented.

In Wroble v Poland [2011] EWHC 374 (Admin) decided by Bean J on 9 February 2011, suicide risk was raised as a bar to return to face a sentence of over two years imprisonment imposed for offences of burglary and attempted robbery. Bean J considered the sentence of Mitting J’s judgment in Rot which I have questioned. He continued in paragraphs 14 to 18 as follows:-

“14.

I agree with much of what Mitting J said in Rot, but not with the sentence I have italicised. I do not accept that the correct test under section 25 is that there must be evidence that the fugitive will kill himself if extradited, nor that this is the ratio of Jansons. I disagree for three reasons: firstly, I cannot see how any psychiatrist can state that if something disagreeable is done to a patient, for example, his extradition ordered against his wishes, he will certainly commit suicide, that is succeed in killing himself. All a psychiatrist can sensibly do is state, for example, that there is an extremely high risk that the patient will make an attempt to commit suicide, and that if, as in the case of Jansons, he has come close to success once before, there may be an extremely high risk that he will succeed the next time. However, predictions by psychiatrists cannot, as I see it, be in the terms of certainty.

15.

Secondly, I was struck by the President’s words in paragraph 2 of Jansons when referring to the psychiatric report saying that Mr Jansons, if extradited to Latvia, “will commit suicide”. The President commented:

“The report says that in terms or, at least, one supposes, make every effort to do so.”

That bears out, I think, the view I have just expressed about certainty of success.

16.

I also note that in paragraph 29 of Jansons the President, with whom Dobbs J agreed, used the phrase: “such a substantial risk that he will commit suicide”, and in the same paragraph said:

“the risk that he will succeed in committing suicide, whatever steps are taken, is on the evidence, sufficiently great to result in a finding of oppression.”

Thirdly, in Prosser the President observed in paragraph 22 that:

“A very high risk would doubtless be capable of achieving the Article 3 threshold.”

17.

If a very high risk was sufficient in a case governed by Article 3, I cannot see that it would be right to interpret section 25 in a way that would be inconsistent, or indeed incompatible, with Article 3. I cannot see any reason why Parliament should have intended to impose a more stringent test under section 25 than under the Human Rights Act and Article 3 itself. I therefore conclude that the test is, as stated in paragraph 29 of Jansons, whether the risk that the fugitive will succeed in committing suicide, whatever steps are taken, is on the evidence sufficiently great to result in a finding of oppression.

18.

In deciding what risk is sufficiently great to result in such a finding it must be borne in mind, firstly, that there is a public interest in giving effect to treaty obligations (see Howes and also Norris [2010] 2 A.C. 487); secondly, that it should be assumed, at any rate in a European arrest warrant case under Part 1 (such as the present one and Jansons), that the requesting stat has the facilities to cope with and treat mental illness. Whether or not the treatment is, in all respects, as good as the appellant might receive in London is not the point. Thirdly, a high threshold has to be surmounted in order to show oppression. Finally, in a case based on the risk of suicide there must, in my view, be independent and convincing evidence of a very high risk of suicide if the fugitive is returned.”

I entirely agree with all that he there says.

I cannot help thinking that some of the problems in these cases have arisen from an unnecessary focus on Articles 3 and 8 of the ECHR. S.21 of the 2003 Act certainly requires the district judge and this court to decide whether the person’s extradition would be compatible with his Convention rights. The Strasbourg jurisprudence has in removal cases, whether extradition or under immigration powers, been concerned with what might happen in the country to which removal would take place. Hence the real risk test has been applied since the court has to consider what the future might bring and what might happen to the individual if he is removed to another country. Bensaid v United Kingdom (2001) 33 EHRR 10 is a leading case. The appellant suffered from mental illness and his removal to Algeria was resisted on the ground that his condition would deteriorate if returned because proper treatment was not available. It was in this context that the court made clear that the threshold set by Article 3 was a high one ‘particularly where the case does not concern the direct responsibility of the Contracting State for the infliction of harm’. There was equally no breach of Article 8 since the risk of damage to the applicant’s health was ‘based on largely hypothetical factors and … it was not substantiated that he would suffer inhuman and degrading treatment’. The court continued (paragraph 48):-

“Nor in the circumstances has it been established that his moral integrity would be substantially affected to a degree falling within the scope of Article 8 of the Convention.”

Thus the threshold under Article 8 is in reality no lower than that under Article 3, particularly as the need to extradite criminals to face justice is clearly within Article 8(2).

The evidence in this case, as would be expected, shows that he will be treated in France in an entirely proper fashion and that all necessary steps will be taken to ensure so far as reasonably possible that he will not succeed in killing himself. Thus there is no question that he will be treated in a way which is capable of breaching Article 3. It follows that any breach of his rights will be the responsibility of this country. In those circumstances, the court has to decide whether it is established at least on the balance of probabilities (and perhaps, as the Strasbourg jurisprudence suggests to a higher standard) that a breach will occur if the appellant is extradited. It is difficult to see that save in the most exceptional case the court could say that a suicide attempt would succeed if removal took place. The most a court could usually decide is that success would be very likely. That again would only apply in very rare cases and hardly ever if the receiving state had available all necessary means of treating an extraditee and taking steps to ensure so far as possible that he could not kill himself. Thus the court has to ask itself whether it is satisfied that a breach will occur and it would only be satisfied if the risk of such a breach, whether of Article 3 or Article 8, was very high.

It is in my view obvious that if there were a breach of a person’s human rights resulting from his extradition, it would be oppressive to extradite him. The question is whether oppression within s.25 extends beyond a breach of human rights. It is capable of doing so on given facts. For example, oppression may be established where there has been substantial delay since the offence for which extradition is sought was committed. Lord Diplock’s observations in Kakis v Cyprus [1978] 1 WLR 779 are in point. At p.782 he said that oppressive was ‘directed to hardship to the accused resulting from changes in the circumstances that have occurred during the period to be taken into account.’

However, in cases such as this of suicide risk where delay is not in issue it is difficult to see how it could be said to be oppressive to extradite unless to do so would constitute a breach of human rights. My only caveat is that I would recognise that the seriousness of the offence in question could be relevant. It may be that the threshold could arguably be lowered if the offence was truly to be regarded as not at all serious since it might than be said in terms of Article 8 that removal was disproportionate. But that is not this case.

The district judge referred to Jansons and Rot but not to Prosser. She applied the certainty test. That was incorrect. But I have to decide whether her decision to refuse to adjourn and to order extradition was nevertheless correct. As I have said and as the medical evidence in my view establishes, the attempts at suicide resulted from stress which is as likely to exist whether the appellant is in England or in France. This is not a case in which it can be said that there is a very high risk of suicide succeeding if he is extradited since the French have available and will on the evidence implement all proper means of treatment. The district judge did not decide whether the appellant was manipulating the situation. In many cases that would be a necessary finding to make, but in this case I agree it was not necessary, save to say that, whether driven by his mental illness or not, there has been some element of manipulation. The reports from the various psychiatrists make that clear.

I am entirely satisfied that the district judge was correct to decide that further delay was unreasonable and consideration of the appellant’s condition following the 18 November 2010 episode was unnecessary. Nothing I have seen, in particular in Dr Brown’s report, persuades me that a different view should or could, if further consideration were given to get more reports, be taken.

Accordingly I dismiss the claim and the appeal. I would only add, as I am sure is obvious to those who will have the responsibility of dealing with the appellant’s extradition, that all medical records should be passed to the French authorities who are to take him into their care and the utmost care should be taken to ensure that he does not attempt serious self harm or suicide in the course of his extradition.