McCaughey v United States of America & Anor [2006] EWHC 248 (Admin)

Case No CO/8764/2005

[2006] EWHC 248 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Friday, 20th January 2006

Strand

London WC2

B E F O R E:

LADY JUSTICE SMITH DBE

MR JUSTICE NEWMAN

Between

SAMUEL SCOTT MCCAUGHEYClaimant

-v-

Between

THE GOVERNMENT OF THE UNITED STATES OF AMERICARespondent

THE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR G DAVIES (instructed by Messrs Hallinan Blackburn Gittings & Nott) appeared for CLAIMANT

MR R MCCOUBREY (instructed by Treasury Solicitor) appeared for DEFENDANT

J U D G M E N T

LADY JUSTICE SMITH:

[1]I will ask Mr Justice Newman to give the first judgment.

[2]MR JUSTICE NEWMAN: This is an appeal against a decision under the Extradition Act 2003 ("the Act") of District Judge Evans sitting at Bow Street Magistrates' Court. On 12th September 2005, he sent the appellant's case to the Secretary of State for consideration of a request for extradition by the United States of America on charges of making, taking and having an indecent photograph of a child and having a quantity of indecent photos of children. The appeal lies to the High Court against such a decision under section 103 of the Extradition Act 2003, and the appeal may be brought on a question of law or fact.

[3]Section 104 of the 2003 Act provides, in some detail, the court's powers but since no issue turns on the detail in that provision, I do not propose to set it out.

[4]The appellant is, according to uncontradicted medical evidence, morbidly obese and suffers from, in particular, chronic obstructive pulmonary disease. The basis advanced to the District Judge for resisting the application for extradition was that, by reason of his medical condition, his life would be imperilled by the lengthy air travel to the United States of America.

[5]In the circumstances, it was said removal would be contrary to section 91 of the 2003 Act and/or breach his rights under

Article 3 of the European Convention

of Human Rights. The District Judge gave an oral ruling and concluded that it would not be unjust or oppressive for the appellant to be extradited to the United States within the meaning of section 91 of the Act. In reaching his decision he was also required to consider the Human Rights Act 1998, namely that to be satisfied that the appellant's extradition would be compatible with the European Convention on Human Rights.

[6]The court does not have a transcript of the ruling, but it has had the benefit of counsel's notes as to what occurred and so far as has been relevant to the development of argument in this court, material has been made available, for example material from the solicitors then acting for the appellant containing information about the arguments which had been advanced.

[7]As far as the record shows, the reasons given by the District Judge for the conclusions to which he came can be summarised as follows: 1) he accepted that the appellant suffered from the conditions set out in the medical report of Dr Bernstein, which had been placed before the court; 2) nevertheless, having regard to all the evidence, including evidence that the appellant's condition had not worsened since January 2003, being the date when he had been medically examined by a Dr Kline and when he had subsequently absconded from the United States and travelled to the United Kingdom without medical assistance, the judge concluded that the appellant could travel to the United States, but 3) he was satisfied that such risk, which he obviously recognised, to which the journey might give rise, would be sufficiently met by the United States Authorities, who had given assurances that the appellant would be assessed before being put on a flight, and only put on a flight if the medical assessment showed that he would survive the flight.

[8]The appeal is principally an appeal against the District Judge's findings of fact relating to the medical condition of the appellant. But Mr Davies, in a thorough written argument which he has presented to the court and developed as necessary, has also advanced a particular argument by reference to the history of the proceedings. It is said it supports the case that the wrong conclusion of fact was reached by the judge. It follows that it is necessary to set out the chronology in relation to the proceedings. In addition, with commendable thoroughness, Mr Davies has drawn attention to what he alleges was a breach of procedure by the judge. He submits the court should take into account and consider whether it has any vitiating impact upon the District Judge's decision.

[9]The chronology is as follows: the extradition request is based upon counts in an indictment dated 27th April 2004, issued out of the United States District Court for the North District of Iowa. The request and supporting documentation having been submitted to the Secretary of State, the Secretary of State certified the request as valid on 17th November 2004 in accordance with section 70 of the 2003 Act.

[10]The request was sent to Bow Street Magistrates' Court, together with a certificate of the validity and copies of the relevant ordering council, pursuant to section 70(9) of the 2003 Act. A warrant for the arrest of the appellant was issued on 25th November 2004, and the appellant was arrested on 8th February 2005. On 15th February 2005, the case came before District Judge Nicholas Evans at Bow Street Magistrates' Court. The appellant did not attend because he was not well enough to travel. The case was adjourned until 1st March 2005 but, again, the appellant was unable to travel due to ill health and a warrant backed for bail was issued. On 21st April 2005, police officers executed a warrant at Lancaster police station and the appellant was informed that he was required to attend court on 29th April 2005.

[11]On 28th April 2005, an application was made on behalf of the appellant for further time to attend court and it was submitted he could not attend on the 29th. The court was assured that he would attend the following week, and that he would be warned that it was the last chance. Then an adjournment was granted until 5th May. On 5th May, the appellant attended court and appeared before District Judge Nicholas Evans. The extradition hearing began and the necessary questions under section 70(9), section 78(4), section 79 and section 87 of the Act were decided, or at least, at that stage of the proceedings, were concluded by way of consideration.

[12]The appellant was represented and no representations were made, that there were any bars to the extradition under the Act, but it was submitted that the appellant wished to make representations under section 91 of the 2003 Act. Thus, an adjournment was sought so that he could seek professional medical opinion to support his submissions. The judge adjourned the hearing until 222nd June to enable the appellant to obtain a medical report.

[13]Then, on 22nd June 2005, the case was listed but the judge was told that further time was needed and there was an adjournment to 12th September. On 12th September 2005, the extradition hearing resumed and submissions were advanced upon the basis of an opinion which had been given by Dr Bernstein in a report dated 1st August 2005. In essence, it is against the rejection of those submissions, and the case which was advanced under section 91 of the 2003 Act and under section 87 of the 2003 Act, that this appeal is now brought.

[14]I must mention the complaint in relation to a procedural impropriety which occurred under the provisions of section 92 of the 2003 Act. In its material part, the section provides that if the appropriate

judge sends a case to the Secretary of State for his decision whether a person is to be extradited:

"(2) The judge must inform the person in ordinary language that (a) he has a right to appeal to the High Court; (b) if he exercises the right, the appeal will not be heard until the Secretary of State has made his decision; (3)... (4)... (5)..."

It is common ground that the judge did not inform the appellant of his right to appeal to the High Court. As it happens, we have been informed that the Secretary of State has made his decision and it is before this court, namely a decision to extradite.

[15]Arising out of these circumstances, four grounds of appeal have been crafted: Ground one. On 5th May 2005, the District Judge granted an adjournment under section 91 of the 2003 Act, due to the appellant's physical condition as the judge then concluded it to be. He did not receive any fresh evidence showing any improvement in the condition when he reached his decision on 12th September. Ground two. The judge was wrong to accept evidence that the appellant had been able to fly to the United Kingdom in 2003, when such suffering as then took place was self-imposed, and the fact that there was no evidence to show that his condition had worsened since that date was well nigh irrelevant to the issue. Ground three. The District Judge failed to notify the appellant of a right of appeal. Ground four. The judge placed improper weight on, and should not have been satisfied as to, the sufficiency of the assurances.

[16]In my judgment, Ground one is unarguable. The judge adjourned the extradition hearing because the appellant wished to make representations under section 91 and, as it happens, under section 87; he needed a medical report to support those representations. The judge did not come to any conclusion on the merits of the submissions, which had yet to be made under section 91 and section 87. He merely acceded to the request for an adjournment. It follows that the premise of the argument as advanced is misconceived, and, as a result, it also follows that nothing turns upon the fact that before making his decision on 12th September, he had not received fresh evidence going to the improvement of the appellant's condition since May 2005.

[17]In my judgment, it is more pertinent to emphasise that, by the time of the hearing on 12th September, he had the advantage of seeing the up-to-date medical evidence which was available to him from the contents of the report of Dr Bernstein.

[18]As to Ground two, the appellant had flown to the United Kingdom in 2003, whilst suffering from the same condition from which he was suffering on 12th September; such a fact was plainly relevant to the issue of whether the District Judge should order that he now be returned to the United States. Since it occurred without any major mishap, indeed anything which could be regarded as a mishap, save that he did require oxygen, it was plainly relevant to the assessment of risk which the judge was required to make in connection with the appellant's return under the warrant. The judge, not being satisfied that there had been a deterioration since 2003, at least to any marked degree, was entitled therefore to take that event which had occurred without serious mishap into account.

[19]I can see no basis for concluding that the judge placed too much weight upon this event, it is clear that he must also have taken into account the uncontradicted medical evidence contained in the report of Dr Bernstein, which went to the present medical condition of the appellant. It was for the judge to make an assessment and to come to a conclusion in the light of all the evidence; he did so. It is true that the appellant had, under the pressure of the proceedings which has been commenced in America, chosen to take the risk by absconding which, as counsel for the appellant has emphasised, was indeed a self-imposed risk.

[20]The statement, which is available from the US Marshals, reports the event in what I accept could be regarded as tendentious terms. It says:

"The US Marshal Service recognises the defense allegations regarding the medical condition of the within subject. Specific notice should be taken however, of the reference and adoption by Dr Bernstein of the medical findings of Dr Kline who examined the subject on 6 January 2003, prior to the subject's flight from the United States. As noted in the brief, '[n]othing in Dr Bernstein's report indicates that McCaughey's condition has deteriorated since that time,' so the subject's medical condition remains much the same as when he placed himself on a 'high altitude flight' to avoid criminal proceedings in the United States."

That which I have referred as being tendentious does not concern the substance of that paragraph, which is in all material respects entirely accurate, but can be seen from the expression that he is in no different condition than when he placed himself on a high altitude flight.

[21]I have little doubt that it is the presence of that in the record which has given rise to the way in which Mr Davies has formulated his ground of appeal. One must have regard to the substance of the evidence, rather than to the manner in which someone has expressed the evidence itself and, as I have indicated, I am satisfied that it was a matter which the judge was entitled to take into account.

[22]The court has helpfully been provided with well-known cases in connection, as far as

Article 3 of the European Convention

of Human Rights is concerned, the concept of unjust and oppressive conduct under the extradition proceedings. It has to be said that the threshold of fact which is required, both in connection with an issue raised under Article 3 and, as it now is under section 91 of the 2003 Act, is a high threshold. I have no difficulty in accepting that the medical condition of the appellant is such as to place him under a greater risk from a long flight than would be associated with a person in good health. That said, persons in varying degrees of health travel, and, as a result, the risks involved will be increased. But I am satisfied that the presence of a risk to health does not mean that no risk can be taken and therefore there can be, in cases where it exists and extradition applies, no extradition. In each case, the case must involve a careful assessment of the risk and the extent of the danger which the extradition will involve.

[23]The judge was undoubtedly influenced in reaching his conclusion, and it was proper for him to take into account what the US Marshal Service proposed by way of seeing to the interests of the appellant and assessing the risk to him before he would travel. The assurances which were given were as follows:

"a. A pre-flight assessment to be conducted by an United Kingdom physician experienced in aviation medicine; b. Supplemental oxygen will be available to the subject on a continuous basis while in the airports and during flight, consistent with airport and airline policies and procedures governing such device; c. A portable monitor will be utilized to monitor the blood oxygen level continuously during the flight, consistent with airport and airline policies and procedures governing such device; and, d. A DUSM paramedic and/or a DUSM trained in emergency medical treatment will accompany the subject at all times during his transport from the United Kingdom to the United States."

[24]In my judgment, it cannot be said that there was not sufficient material before the judge to reach the conclusion to which he came, and, as far as this is an appeal on fact, I am satisfied that the evidence which is available is sufficient for this court is to conclude and I do so conclude that to order this appellant's return to the United States of America does not amount to a breach of his human rights.

[25]One should perhaps emphasise the following: as far as Dr Bernstein is concerned, he refers to and adopts the findings of Dr Kline, who was the US physician who examined the appellant on 6th January 2003, a few months before he left the United States to avoid criminal proceedings. Again, one must emphasise that nothing in Dr Bernstein's report indicates that the appellant's condition has deteriorated since that time. In my judgment, the judge, having decided that the extradition would not be unjust or oppressive or infringe the Article 3 rights, expressed his reasons, with all of which I concur, and I agree with the conclusion to which he came on this aspect of the appeal.

[26]Ground 3: there having been a failure to inform the appellant in ordinary language that he had a right of appeal to the High Court, the question arises; what effect should such a failure to comply with a mandatory requirement under the Act have upon any order of this court, or the order of the court below. The terms of section 92 of the 2003 Act, in my judgment, do not support the conclusion that it is a precondition to the court, exercising its power to send the case to the Secretary of State, that a person be informed in accordance with subsection 2. That is because section 92(1) states:

"This section applies if the appropriate judge sends a case to the Secretary of State under this part for his decision, whether a person is to be extradited."

The section therefore presumes that the decision has been made to send the case to the Secretary of State.

[27]The need for the appellant to be informed of his right to appeal to the High Court is plainly an important procedural safeguard which, if not complied with, in certain circumstances could possibly affect the exercise of power by the Secretary of State contemplated by section 93. For example, different considerations might apply in a case where the consequences of the decision being sent to the Secretary of State have resulted in implementation without a person being aware of his rights of appeal, and where there is a desire on the part of the individual to appeal. But none of that, which has realistically been accepted by Mr Davies, arises in connection with this case. This appellant was represented at the hearing and he knew of his rights of appeal, and he would not be here had he not exercised them. In my judgment, therefore, no relevant issue arises in connection with this complaint and it has no consequence.

[28]As far as Ground 4 is concerned, in my judgment it raises no particular matters in connection with the adequacy or sufficiency of the assurances which have been given, which are not already embraced by the conclusions to which I have come above.

[29]Therefore, in my judgment, this appeal should be dismissed.

LADY JUSTICE SMITH: I agree. I am sorry Mr Davies, the appeal is therefore dismissed.

[31]MR DAVIES: My Lady, very briefly simply in order to protect my client's position, may I apply for the question of a certificate?

LADY JUSTICE SMITH: You would have to formulate a question, would you not, and it would have to be a question of general public importance.

[33]MR DAVIES: My question is, would you wish to formulate that question now, or is it acceptable to submit in writing?

LADY JUSTICE SMITH: You can do it in writing, yes.

[35]MR DAVIES: Within?

LADY JUSTICE SMITH: A week.

[37]MR DAVIES: Seven days, thank you.

[38]MR McCOUBREY: My Lady, may I say on behalf of the Government of the United States, it would be our submission that plainly no point of public importance arises in this case.

LADY JUSTICE SMITH: I must confess at the moment I cannot think how one will be formulated, but I would not, for that reason, wish to deprive Mr Davies of the opportunity of doing so. Only in the event that we thought, on seeing his request, and his formulation -- only in the event that we thought that it did raise a point of general public importance would you be troubled with it.

[40]MR DAVIES: My Lord, there is one last point: I believe there was a reference to District Judge Platt at the very beginning of your judgment, I believe that should be District Judge Evans.