Fateh-Saleh v The Regional Court of Lille, France

The Appellant appeals pursuant to section 26(1) of the Extradition Act 2003 (“the 2003 Act”) against the decision of District Judge McPhee made at Westminster Magistrates’ Court on 12 January 2015 to order his extradition to France.

He is the subject of a conviction European Arrest Warrant, issued by the Regional Court of Lille, France, for two offences, namely: participation in a criminal organisation, and facilitation of unauthorised entry and residence. He is alleged to have been the principal of an organised network of smuggling migrants to Great Britain, which he directed by telephone from the UK. On 5 and 6 December 2011 he was convicted in his absence by the Criminal Court of Lille and sentenced to 7 years’ imprisonment, all of which remain to be served. He is entitled to a re-trial on his return to France.

The EAW was issued on 20 March 2013 and certified by the National Crime Agency on 28 October 2013. He was arrested on 8 July 2014.

Mr Malcolm Hawkes, for the Appellant, advances two grounds of appeal. First, that the Appellant’s extradition would be oppressive in the light of his mental condition, there being a very high risk that he would commit serious acts of self-harm, including suicide, were he to be separated from his wife and two children and extradited. This separation is likely to be permanent because of his immigration status. Accordingly by virtue of section 25 of the 2003 Act the District Judge should have discharged him. Second, for the same reasons, his extradition would constitute a disproportionate interference with his and his family’s Article 8 rights.

The Appellant adopted his consolidated proof of evidence. In summary his account is as follows: he was born in Rania in the Kurdish part of north-western Iraq in 1983. His father died in 1988 and his only brother was executed under the regime of Saddam Hussein in 1993. He left his home country at the end of 1998, aged 15, when he was smuggled out through Iran, eventually arriving by lorry at Dover in October 1999.

He applied for asylum and was placed in a communal house for refugees in Wolverhampton. The other occupants were adults and they physically and sexually assaulted him, and took his food and money. After failing to obtain assistance from the police or social services he left the house.

In 2001 he decided to return to Iraq because his mother was very unwell. He left the UK on a lorry for France without waiting for the Home Office decision on his asylum application. On arrival in France he was apprehended and placed in a camp where he stayed for two months. He then discovered that his mother had died and he decided to return to the UK. However before doing so he was arrested in France for assisting illegal immigration. He received a four-year prison sentence from which he was released in November 2003 and told to leave France within 15 days. About six days after his release he was caught trying to get onto a lorry, prosecuted and sentenced to a further four years’ imprisonment. He was released from this sentence in 2007.

The Appellant states that he was very depressed in France. He had received lengthy sentences, yet he had not really done anything. While in prison in August 2001 he attempted suicide by setting fire to himself in his cell, as a result of which he spent one year in hospital and has extensive scarring on his left leg. In about 2005 or 2006 he took to cutting himself as a result of which he has deep scarring on his left forearm and stomach. He has other scars and injuries from when he was assaulted by inmates and staff in prison. He states that if he is sent back to a French prison he will commit suicide. Recently he has caused a puncture wound to his neck whilst on remand which required suturing.

He came back to England in a lorry in 2007 and has lived here ever since. He reapplied for asylum in 2011. He has been living with his partner, Amy Boswell, since about 2012. They have known each other for several years and married in a religious ceremony on 19 January 2013. They have two children, born on 18 September 2013 and 27 June 2014. Before his arrest on these matters the Appellant worked in a car wash earning very little, but as a family they had enough on which to survive. He is very worried about how Ms Boswell would cope without him, financially and emotionally.

Ms Boswell gave evidence. She said that the Appellant does his best as far as the children are concerned. She finds living without the Appellant extremely stressful. She receives benefits but she has very little money left over at the end of the week. She is just surviving. Even when the Appellant was living with her it was hard, but he was able to earn some money which made a difference.

Ms Boswell said that if the Appellant is extradited she would not be able to visit him for several reasons: she does not have a passport and cannot afford to obtain one; she could not afford to travel to France in any case and would find travelling with two very young children very stressful.

Dr L.A. Rowland, a consultant clinical psychologist, provided a psychological report dated 12 November 2014, following an assessment of the Appellant carried out at HMP Wandsworth on 3 November 2014.

He found that the Appellant had significant learning difficulties and is placed in the bottom 5% (reduced to 1% in his oral evidence) of the population in terms of intellectual functioning. He cannot read or write, either in English or Kurdish.

Dr Rowland specifically considers six issues in his report.

Is the Appellant suffering from a mental illness, and if so what? Dr Rowland concluded that the Appellant belongs to a group at high risk of developing mental health problems. He is reporting the symptoms of a moderate to severe depression. He is also reporting many of the symptoms associated with a diagnosis of Post-Traumatic Stress Disorder (“PTSD”). While he does not appear currently to meet all the criteria for diagnosis of PTSD “there is little doubt that he has suffered and continues to suffer significant stress and increased vulnerability to mental health problems as a result of the traumas he has experienced” (para 17.2.4). He did not find any evidence the Appellant was suffering from a psychotic disorder (para 15.4.2).

How, if at all, could that illness be treated, particularly in a custodial context? Dr Rowland refers to the guidance provided by the National Institute for Health and Care Excellence (“NICE”) on the treatment of moderate to severe depression and to the NICE guidance on the treatment of PTSD. He recommends that these two sets of NICE guidelines be followed. At paragraph 17.3.10 Dr Rowland states:

“As most, if not all, prisons in England now have access to a Mental Health Prison In-Reach Team it should be this team which takes the lead in putting in place an appropriate care plan and package of interventions to meet [the Appellant’s] mental health needs.”

Is the Appellant at risk of future incidents of self-harm, attempted or completed suicide? Dr Rowland notes that as a prison inmate, this puts the Appellant at a higher risk of committing suicide than the general population. Further, he has a history of making serious suicide attempts. If the Appellant believed that he had failed his family it is likely that he would conclude that he had no purpose in life. This would further increase his risk of committing suicide. Dr Rowland adds at paragraph 17.4.6:

“I understand that [the Appellant’s] wife finds herself in difficult financial circumstances and, in consequence, is unlikely to be able to visit him or even maintain regular telephone contact with him if he is returned to France. If this is the case and [the Appellant] believes that he will lose contact with his family it is likely that he would see himself as having failed his family. This is likely to further exacerbate his mental health problems and place him at very serious risk of committing suicide.”

Could those risks be managed or contained; if so, how? Dr Rowland considers that “enabling [the Appellant] to maintain contact with his family and supporting a belief that he can resume the role of provider is likely to be central to managing [the Appellant’s] risk of suicide” (para 17.5.2). Dr Rowland continues (at para 17.5.3):

“If [the Appellant’s] risk of committing suicide is to be successfully managed it is important that his mental state is regularly monitored and assessed and his mental health problems are tackled appropriately, as noted above following the appropriate clinical guidelines with interventions carried out by competent practitioners.”

What effect would extradition to France have on the Appellant’s well-being? The Appellant has little faith in the French judicial system. He believes that his voice would not be heard which, as in the past, is likely to engender a sense of hopelessness. This, Dr Rowland concludes, in its turn, increases the likelihood that he will attempt to take his own life (see paras 17.6.3-17.6.5). Further:

“If [the Appellant] is returned to France it is likely that his sense of hopelessness and the belief that he has failed his family will become more pronounced. This hopelessness and sense of failure will be exacerbated by his loss of contact with his family. In this situation it is likely that his mental health problems will become more pronounced and there will be a very high risk that he will try to kill himself” (para 17.6.9).

Dr Rowland (at para 17.7.9) summarises this situation as creating “a very high risk that he will make a serious attempt to kill himself”.

Finally, Mr Dorun Blum, a barrister and part-time immigration judge, produced a report dated 19 December 2014 in which he explained why the Appellant (in the words of Mr Hawkes) “would struggle” to succeed in any application to re-enter the UK from France. Ms Florence Iveson, for the Respondent, accepts that there would be “significant barriers” to the Appellant obtaining entry clearance from France. It is common ground that the Appellant entered the UK illegally and has never had permission to remain which means that he is liable to administrative removal and subject to immigration detention beforehand. As Mr Blum observes, the Appellant’s current immigration status in the UK is “precarious” (para 11).

The Respondent provided further information on two occasions. The first was dated 30 December 2014 and indicated that no records could be found of the Appellant having served two prison sentences in France on the dates given in his proof of evidence or under the names provided. Subsequently the Appellant’s solicitors provided the names of prisons the Appellant said he had been held in, together with a list of other possible name and date of birth combinations which led the CPS to make another request for further information.

On 5 February 2015 a response was received to the effect that the Appellant had spent time in French prisons, and had received the following sentences: four years’ imprisonment for assault, extortion, illegal immigration and assistance to illegal immigration from the Court of Appeal of Douai on 12 April 2001; 15 days’ imprisonment for arson committed in Douai prison from the ‘Tribunal Correctionnel’ of Douai on 22 May 2011; and four years’ imprisonment for illegal immigration and assistance to illegal immigration from the ‘Tribunal Correctionnel’ of Béthune on 19 November 2003.

Section 25 of the 2003 Act provides:

“25.

Physical or mental condition

(1)

This section applies if at any time in the extradition hearing it appears to the judge that the condition in sub-section (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 sub-section (2) is no longer satisfied.”

The question as to whether the mental condition of a requested person who poses substantial risk of suicide amounts to his extradition being unjust or oppressive or in breach of article 3 ECHR has been considered in an number of cases. In Wolkowicz v Polish Judicial Authority [2013] EWHC 102 (Admin) the President of the Queen’s Bench Division, delivering the judgment of the court, stated the principles to be applied:

“8.

In a recent suicide case, Turner v Government of the USA [2012] EWHC 2426 (Admin), Aikens LJ summarised the propositions which could be derived from these cases at paragraph 28:

‘(1) The court has to form an overall judgment on the facts of the particular case.

(2)

A high threshold has to be reached in order to satisfy the court that a requested person’s physical or mental condition is such that it would be unjust or oppressive to extradite him.

(3)

The court must assess the mental condition of the person threatened with extradition and determine if it is linked to a risk of a suicide attempt if the extradition order were to be made. There has to be a “substantial risk that [the Appellant] will commit suicide”. The question is whether, on the evidence the risk of the appellant succeeding in committing suicide, whatever steps are taken is sufficiently great to result in a finding of oppression.

(4)

The mental condition of the person must be such that it removes 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 if that is the case there is no oppression in ordering extradition.

(5)

On the evidence, is the risk that the person will succeed in committing suicide, whatever steps are taken, sufficiently great to result in a finding of oppression?

(6)

Are there appropriate arrangements in place in the prison system of the country to which extradition is sought so that those authorities can cope properly with the person’s mental condition and the risk of suicide?

(7)

There is a public interest in giving effect to treaty obligations and this is an important factor to have in mind.’

9.

We agree with counsel that this is a succinct and useful summary of the approach a court should adopt to s.25 and s.91 of the 2003 Act.

(c)

The importance of preventative measures

10.

The key issue, as is apparent from propositions (3), (5) and (6), will in almost every case be the measures that are in place to prevent any attempt at suicide by a requested person with a mental illness being successful. As Mr Watson correctly submitted on behalf of the respondent judicial authorities, it is helpful to examine the measures in relation to three stages:

(i)

First, the position whilst the requested person is being held in custody in the United Kingdom is clear. As Jackson LJ observed in Mazurkiewicz at paragraph 45, a person does not escape a sentence of imprisonment in the UK simply by pointing to the high risk of suicide. The court relies on the Executive branch of the state to implement measures to care for the prisoner under the arrangements explained in R v Quazi [2010] EWCA Crim 2759, [2011] Crim LR 159.

(ii)

Second, when the requested person is being transferred to the requesting state, arrangements are made by the Serious Organised Crime Agency (SOCA) with the authorities of the requesting state to ensure that during the transfer proper arrangements are in place to prevent suicide in appropriate cases. As Collins J helpfully mentioned in Griffin at paragraph 52, steps should ordinarily be taken in such cases to ensure that no attempt is made at suicide and proper preventative measures are in place. Medical records should be sent with the requested person and delivered to those who will have custody during transfer and in subsequent detention.

(iii)

Third, when the requested person is received by the requesting state in the custodial institution in which he is to be held, it will ordinarily be presumed that the receiving state within the European Union will discharge its responsibilities to prevent the requested person committing suicide, in the absence of strong evidence to the contrary: see the authorities set out at paragraphs 3-7 of Krolick and others v Several Judicial Authorities of Poland [2012] EWHC 2357 (Admin) and paragraphs 10-11 of Rot. In the absence of evidence to the necessary standard that calls into question the ability of the receiving state to discharge its responsibilities or a specific matter that gives cause for concern, it should not be necessary to require any assurances from requesting states within the European Union. It will therefore ordinarily be sufficient to rely on the presumption.

It is therefore only in a very rare case that a requested person will be likely to establish that measures to prevent a substantial risk of suicide will not be effective.”

In Cogan v Provincial Court of Almeria [2015] EWHC 89 (Admin) further information was provided by the Spanish authorities. The appellant in that case suffered from severe depression and psychosis and was assessed as being at risk of suicide, or high risk of suicide if medical support was limited, the language barrier was not overcome and as a result his mental health deteriorated (para 5). Further information was in fact obtained from Spain regarding translation facilities and psychiatric care, but the court stated it was not a case in which the Spanish authorities needed to provide any further information. Burnett LJ considered the meaning of the phrase “a specific matter that gives cause for concern” in paragraph 10(iii) in the judgment in Wolkowicz (see para 24 above) and stated:

“19.

That reference was not designed to subvert the principle identified in the same subparagraph that a presumption operates that an EU state will discharge its responsibilities to prevent suicide in the absence of strong evidence, by enabling an appellant to raise ‘concerns’ and then set off on a quest for information and assurances. A specific matter will not give cause for concern unless it has a strong evidential foundation. It is clear from the final sentence of paragraph 10 of the Judgment that an appellant has to establish that a substantial suicide risk will not be appropriately guarded against. The appellant has come nowhere near doing so in this appeal.”

Burnett LJ continued:

“22.

… there is no basis for being concerned that in a general sense the Spanish authorities are unable to provide appropriate care for a prisoner with a diagnosis of psychiatric illness who is at risk of suicide. This court is familiar, in the context of extradition cases and others involving removal, with detailed reports from Human Rights organisations, the EU, the European Council, the US State Department, the Foreign Office, the United Nations (and others) which explore conditions of detention in countries across the globe. One aspect which invariably features in such reports is healthcare, including the care of those with psychiatric illness. There is no hint in this appeal of any problem in Spain. The Spanish authorities could have relied upon the presumption that their facilities are adequate to cope with the sort of problem which the appellant’s detention will present.”

In Norris v Government of United States of America (No.2) [2010] UKSC 9, Lord Phillips giving the leading judgment, with which all other members of the court agreed, stated (at para 56):

“The reality is that only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves… Instead of saying that interference with article 8 rights can only outweigh the importance of extradition in exceptional circumstances it is more accurate and more helpful, to say that the consequences of interference with article 8 rights must be exceptionally serious before this can outweigh the importance of extradition.”

In H(H) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, Lady Hale stated at paragraph 8:

“We can … draw the following conclusions from Norris: (1) There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life. (2) There is no test of exceptionality in either context. (3) The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition. (4) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no ‘safe havens’ to which either can flee in the belief that they will not be sent back. (5) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved. (6) The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life. (7) Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe.”

In conducting the article 8 ECHR balancing exercise, the best interests of children are of primary, although not always the only primary or paramount consideration. Careful attention will therefore have to be paid to what will happen to the child if his sole or primary carer is extradited (H(H), per Lady Hale at para 33).

In Belbin v Regional Court of Lille, France [2015] EWHC 149 (Admin) Aikens LJ considered the proper approach of the High Court to decisions on proportionality under article 8. He stated (at para 66):

“In this context the relevant ‘question’ is whether the extradition of the requested person would be disproportionate to the interference it would have with his (and, if relevant, his family’s) article 8 rights. If, as we believe, the correct approach on appeal is one of review, then we think this court should not interfere simply because it takes a different view overall to the value-judgment that the District Judge has made or even the weight that he has attached to one or more individual factors which he took into account in reaching that overall value-judgment. In our judgment, generally speaking and in cases where no question of ‘fresh evidence’ arises on an appeal on ‘proportionality’, a successful challenge can only be mounted if it is demonstrated, on review, that the judge below: (i) misapplied the well-established legal principles, or (ii) made a relevant finding of fact that no reasonable judge could have reached on the evidence, which had a material effect on the value-judgment, or (iii) failed to take into account a relevant fact or factor, or took into account an irrelevant fact or factor, or (iv) reached a conclusion overall that was irrational or perverse.”

The judge accepted that the Appellant suffers from a number of health issues. He accepted the Appellant’s evidence of his attempts at suicide and he accepted wholly the evidence of Dr Rowland. The further information that was provided by the French authorities (see paras 21-22 above), (which he dealt with by a short addendum to his judgment on the day it was handed down), confirmed him in his view that he was correct to have been persuaded by the evidence of the Appellant that he had served two three-year terms of detention in France as the record now shows.

In addition, the judge made the following material findings:

1.

“I have no reason to doubt the evidence of the requested person that he has made attempts to take his own life whilst in custody in France or indeed whilst in prison on remand in England”.

2.

“It is also plain to me that after each of these unsuccessful attempts he has received good, prompt and proper care by those overseeing his detention so that his attempts have been thwarted and he has recovered”.

3.

“I am … satisfied that these severe but nonetheless fairly common medical problems are easily and effectively treated and that France can provide a standard of medical care that will at least mirror that which the requested person might expect to receive in England. I am quite satisfied that if there is required any continuing investigation or treatment that there will be provision for that found within France and within the French Prison system relying on the mutual trust between signatory states to provide proper medical care and attention which underlies the functioning of the European framework decision.

4.

“It is clear here that the threat of suicide is not at the level envisaged in Wolkowicz in that his mental illness does not operate so as to remove his capacity to resist the impulse to suicide. There is a substantial risk of attempt at suicide, but not such a risk as can not be properly managed by a prison system alert to the risk and so not so great as to sanction a finding of oppression.

5.

“… I do however direct that on his surrender to the French authorities that a copy of the psychologist’s report and a copy of this judgment are made available to the French authorities together with any ACCT document and any other details of his mental health which the Prison service are able to provide.”

6.

“I rely on the ability of the English prison system until his surrender to France and then on the French prison system to take appropriate steps should his mental health deteriorate to the condition in which he loses the impulse to resist suicide. At present I do not find that he has lost the impulse to resist suicide”.

The judge made the following material findings with regard to Article 8:

Having conducted the balancing exercise the judge determined that “it is a proportionate and necessary response and compatible with his Convention rights… to order his extradition”.

Mr Hawkes submits that, having accepted the evidence of Dr Rowland in its entirety and the material evidence of the Appellant, the judge’s conclusion that extradition would not be oppressive was wrong.

The judge, he submits, has ignored, or at least failed properly to have regard to, the impact on the Appellant of his severance from his family. Dr Rowland considered that the Appellant’s risk of committing suicide, stripped of the major protective factor of his family, would be very high. Mr Hawkes submits that the judge was wrong to confuse an apparent ability of the French authorities to care for the Appellant after he has committed acts of serious self harm with an ability to prevent such acts occurring in the first place. Although Dr Rowland identified the likely treatment regime which in theory may address the Appellant’s depression, his conclusion is that such treatment is unlikely to be effective due to the highly variable nature of that treatment, and the Appellant’s loss of the key protective factor of contact with his family.

Further, Mr Hawkes submits that the judge was wrong to suggest that the s.25 threshold is not met just because his suicide attempt was unsuccessful. Rather, the associated harm inherent in a serious attempt plainly engages article 3 ECHR, would also satisfy a real risk test under article 2, and would reach the oppressive threshold pursuant to s.25.

In response Ms Iveson submits that the judge in his assessment was correct to find that the risk of suicide does not meet the high threshold required to show that extradition would be oppressive regardless of care offered in France. Equally the Appellant has not displaced the presumption that France, a Part 1 country under the 2003 Act, can provide adequate care for him if returned.

Dr Rowland sets out in his report what treatment should be provided for the Appellant and the need to provide him with reassurance about his family and with a mechanism for remaining in contact with them. Dr Rowland does not state that whatever assistance is provided to the Appellant he is very likely to attempt to commit suicide.

On the evidence I consider that the judge was entitled to find that the Appellant does not meet the threshold that his mental health is such that his capacity to resist the impulse to suicide is removed (see para 31(4) above). Accordingly the conditions set out in paragraph 8(4) of the judgment of Aikens LJ in Turner (approved in Wolkowicz) is not satisfied (see para 24 above).

That being so I agree with Ms Iveson that the focus has correctly been placed on the capability of France to provide adequate care for the Appellant. It is clear from the decisions in Wolkowicz and Cogan that in the absence of strong evidence to the contrary the court should ordinarily assume that France, an EU country, will discharge its responsibilities to prevent the Appellant committing suicide. The burden is on the Appellant to adduce evidence that France cannot provide appropriate care for him. Yet, as Ms Iveson observes, there is no expert evidence on conditions in French prisons or psychiatric facilities or on the mechanisms in place to assist prisoners in maintaining contact with family. There is indeed no evidence to suggest that the French authorities do not have or cannot put in place the adequate measures that Dr Rowland considers are required in order to “cope with the sort of problems which the Appellant’s detention will present” (Cogan, para 22 at para 25 above).

I consider that the judge was plainly entitled, on the evidence, to conclude, as he did, that the Appellant’s extradition will not be oppressive.

Mr Hawkes submits that the judge was wrong to conclude that extradition would not be a disproportionate interference with the Appellant and his family’s article 8 rights. He accepts that there is no evidence that removing him to France would produce exceptionally serious consequences for his wife and children, however he submits that the disproportionate interference with their article 8 rights are made out: first, by the permanent family separation caused by his extradition and immigration issues that are likely to bar his return; second, the very high risk of completed suicide; and third, the impact on the Appellant’s family of such a traumatic separation akin to, or indeed constituting actual bereavement.

I reject this submission. The judge was entitled to find that the French authorities, having been appraised of the Appellant’s risk of suicide, will take appropriate steps to prevent any such attempt (see paras 25 and 31 above).

The judge acknowledged that the Appellant’s wife will find it very difficult without him, but fortunately she has been able to cope on her own while he has been in custody in relation to these matters. Plainly the interests of the children are a primary consideration, however I accept Ms Iveson’s submission that there is little evidence before the court as to the Appellant’s bonds with his children or the parenting he is able to offer them.

I also accept Ms Iveson’s submission that the Appellant’s immigration status is so precarious that he is unlikely to be able to prolong his stay in the UK for any significant length of time even were he to avoid extradition. His chances of regularising his immigration status in the UK are so slim that very little weight can be placed on the obstacles he would face in re-entering the UK.

In all those circumstances the judge was entitled, in my view, to conclude that the circumstances of the Appellant’s family are not such as would or should displace the treaty obligations of the UK and the weighty public interest in extradition in the present case where the offences which are the subject of the request are very serious and the Appellant had committed similar offences in the past.

In my judgment the judge was entitled to find on the evidence that the Appellant’s extradition would not amount to a disproportionate interference in his or his family’s article 8 rights.

For the reasons I have given this appeal is dismissed.