Yuen v Secretary of State for the Home Department [2009] EWHC 573 (Admin)

[2009] EWHC 573 (Admin)Case No CO/2728/2008
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25 March 2009
Before
LORD JUSTICE LAWSMR JUSTICE OUSELEY
Between
YUENClaimantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Mr James Hines (instructed by Hallinan, Blackburn, Gittings & Nott) for ClaimantMs Clair Dobbin (instructed by Treasury Solicitors) for Secretary of State for the Home DepartmentMs Melanie Cumberland (instructed by the Government ofHong Kong S.A.R.) (Interested Party)Hearing Hearing date: 4th March 2009
Judgment
[1]This is the judgment of the Court, prepared by Mr Justice Ouseley. The Claimant, who is now 60, left Hong Kong for England in February 1998, about a month after her husband was arrested and charged with possessing a false instrument. He had made admissions of guilt, but was released on bail in Hong Kong, absconded between 11 February and 11 March 1998, and has not been seen since by his wife or the Hong Kong authorities. He never entered a formal plea.[2]A further warrant for his arrest was issued in February 1999. It was alleged that he defrauded customers of the bank, of which he was a manager, to the tune of £900,000 between 1996 to 1998. At the same time, the Government of the Hong Kong Special Administrative Region issued a provisional request for the Claimant’s arrest on 15 February 1999. It wanted her for trial on charges directly connected with her husband’s fraud. It alleged that the money taken from customers’ accounts was transferred into accounts which she controlled, and that she signed the cheques transferring the money from those accounts into accounts held in her husband’s name or for other purposes of his. She claims that she knew nothing of these dealings and that her husband forged her signature on the relevant documents.[3]The Claimant was arrested in England in October 2000 pursuant to this request, but was discharged in April 2001. A month later a fresh request was issued. Her application for habeas corpus, and for discharge of the Committal Order made at Bow Street Magistrates Court on that fresh request, was dismissed by the Divisional Court on 14 June 2002. It concluded that there was a clear prima facie case against her and that the District Judge had been fully entitled so to conclude.[4]Since then, on a number of occasions, though with an apparent hiatus between 2004 and 2006, representations were made on her behalf to the Secretary of State, largely based on her mental health, seeking to persuade the Secretary of State not to make the Extradition Order. She signed the Order on 6 September 2007 but permitted further representations to be made about the Claimant’s mental health, fitness to plead and the passage of time. This led to a further decision on 24 January 2008, the decision which is under challenge by judicial review in these proceedings.[5]Section 12 of the Extradition Act 1989, the relevant statutory provision, gives to the Secretary of State a wide discretion not to make an Order for return.

(a) (ii), where it appears to the Secretary of State that:

“… by reason of the passage of time since (s)he is alleged to have committed [the offences]…it would, having regard to all the circumstances, be unjust or oppressive to return [her]… ”
[6]Closely connected with that issue is the question of whether the extradition of the Claimant to Hong Kong would involve a disproportionate interference with her Article 8 ECHR rights to private and family life. She has been living here with what are now her three adult children since 1998.[7]The Secretary of State’s decision is first challenged on the ground that it is irrational. The Secretary of State ought instead to have concluded that the medical evidence about her deteriorating mental health, her fitness to plead and her ability to participate effectively in the trial over the period of time which has elapsed since 1998, showed that it would be unjust and oppressive to extradite her. Second, the Secretary of State is alleged to have erred in law in her application of section 12(2)(a) to the facts because of the reliance she placed on the legal procedures and medical facilities in Hong Kong for those with mental health problems. It was for the Secretary of State to reach her own decision under section 12. The Secretary of State had also ignored her own responsibility for the delay in decision making between 2004 and 2006 at least, and its impact on the Claimant’s mental health and family life. Third, it was said that there would be a disproportionate interference with the Claimant’s private and family life which, over the last 10 years, has been in the UK with her children. The overall lapse of time is relevant to that issue, along with the Secretary of State’s own responsibility for at least part of it.

The Decision Letter of 24 January 2008

[8]Representations were made on behalf of the Claimant that the first decision letter of 7 September 2007, although dealing with the Claimant’s mental health, did not address the issue of passage of time under section 12 of the 1989 Act. The Secretary of State agreed to accept further representations, but no further medical reports were sent. Accordingly, the latest reports before the Secretary of State as at 24 January 2008 were those which had already been before her in September 2007. These were a report of 17 January 2007 from Dr C Smith, a consultant psychiatrist who had been and continues to be the Claimant’s treating psychiatrist and a report dated 26 April 2007 from Dr Bustos, a forensic psychiatrist instructed by the Secretary of State.[9]We turn to the terms of the decision. The second decision letter responded to a criticism that, in the first decision letter, the Secretary of State had relied overmuch on a report in 2003 from Dr Lack, a consultant forensic psychiatrist who had been instructed by the Home Office before Dr Bustos. Dr Lack had taken a more sceptical view of the Claimant’s condition than Dr Bustos. The Secretary of State pointed out that, in her first letter, she had in fact referred essentially to the opinion of Dr Bustos and had paid particular regard to his most recent report and to the report of Dr Smith.[10]The Secretary of State rejected the claim that she was substantially to blame for any delay in the case. Commissioning psychiatric reports in response to those submitted by the Claimant had been a time consuming process, but necessary if her decision was to be fair and based on all relevant information. Fault would not of itself in any event demonstrate that it would be unfair or oppressive to return an individual. It was for the Claimant to show the connection between delay and injustice or oppression to the Claimant. We note that the statutory language is not delay but “passage of time”, which does not have the same overtones of culpability or want of promptness.[11]The Secretary of State then pointed out that Dr Bustos had not concluded that the Claimant was or would be unfit to stand trial; it was an unconcluded issue. The resolution of that issue was for the trial court in Hong Kong and not for the Secretary of State. She referred to the information contained in the previous decision letter about the legal procedures concerning fitness to plead in Hong Kong. She summarised the medical care arrangements available in respect of the Claimant’s mental health problems: escort, psychiatric assessment and hospital provisions. Hong Kong had a highly developed system for dealing with defendants with acute psychiatric conditions and she asserted that the information the authorities had provided to her:
“conclusively demonstrates that it would not be unfair to return Mrs Yuen.”
[12]The Secretary of State said next that there was no detail as to what injustice through prejudice to the Claimant’s defence, the passage of time had caused:
“…you have not said what her defence would be, what documents she would seek to rely upon (that are now not available to her) and what the precise impact of her husband’s absence was. In those circumstances you appear to fall back upon a general assertion that it is self evident that she will be prejudiced because 11 or 12 years would have passed since these offences are alleged to have occurred. Such an approach was expressly criticised in Woodcock v New Zealand [2004] 1WLR 1979 where the Court observed that there would be no cut-off point beyond which extradition must inevitably be regarded as unjust or oppressive.”
[13]She dealt with oppression and the passage of time, referring to the deterioration in the Claimant’s psychiatric condition said to have been brought on by the protracted nature of these proceedings. It appeared to the Secretary of State that the mental health problems were a reaction to the onset of legal proceedings in Hong Kong, to the disappearance of the Claimant’s husband and to the commencement of extradition proceedings. She commented that the Claimant, having sought to contest extradition on the basis of her mental health, must have expected the Secretary of State to investigate the issue thoroughly.[14]The Secretary of State recognised that hardship might well be caused but saw no reason for that to operate as a bar to extradition in the light of what the Hong Kong authorities had made clear would be the manner in which she would be treated and cared for on her return. It was not for the Secretary of State to speculate as to what the outcome of the judicial assessment of fitness to plead would be on the evidence that might be placed before the court, but she was satisfied that the procedures would be full and sufficient. Accordingly, she decided to make the order for extradition.[15]Mr Hines submitted on behalf of the Claimant that the various issues raised in the decision and in the challenge were inter-related. Nonetheless some degree of separation is necessary for coherent analysis, however much their interlocking nature is recognised.

The material before the Secretary of State

[16]First, the medical evidence. Dr Smith’s first report of 3 July 2002 concluded that the Claimant was suffering from a moderate to severe depressive disorder and from genuine depression and distress. This was caused by what had happened in the last few years: her husband’s disappearance, the allegations that she was involved in his fraudulent activities, both of which were exacerbated by her arrest in England in September 2000 at her home, and by the ongoing extradition proceedings.[17]She had made good use of the treatment available from the health services and of the support from her family, but treatment would be of little benefit at the present because of the prospect of extradition. The longer disorder and distress continued, the greater the impact on her future mental health: “This is clearly very serious at present, but if she were extradited to Hong Kong, away from her current support and treatment from the mental health services, in addition to her distress at being extradited, her mental health would deteriorate even further. This would also put her physical health at further risk as described above as well as increasing further the very significant risks of suicide”.[18]She had attempted suicide on several occasions and was:
“clearly at very high risk of killing herself…and this would be particularly the case if she were to be extradited, away from the supports and treatment with the mental health services. If she were to be extradited, she would almost certainly attempt to kill herself… ”
The Report concluded that she was: “at extremely high risk of suicide should she be extradited.” (We have excluded references to the son because he was very much younger then and the risks to him cannot continue to apply, as Mr Hines accepted.)[19]The June 2002 submissions also included letters from her eldest daughter, now 33, and her younger daughter now 30. These refer to the impact which the father’s disappearance had had on the family, their fear of losing their mother, their annoyance at their father having involved their mother in his criminal activities and their concern about the impact of all these troubles on the emotional development and wellbeing of the youngest child, their brother, then aged 16.[20]In May 2003 the Claimant attempted suicide by an overdose of her prescribed anti-depressant medication, when briefly left unattended. This led to her informal admission to hospital where she was kept until 1 July 2003. Dr Smith wrote on 28 July 2003 that she remained at an extremely high risk of attempting and completing suicide. Were she to be extradited at this level of risk she would require constant accompaniment which her family could not provide. The suicidal ideas were not manipulative. The decision to extradite her would raise the risk further and:
“she would almost certainly need admission under the Mental Health Act as necessary.”
[21]Dr Bustos’ first report of 26 July 2004 was prepared as an addendum to Dr Lack’s 2003 report. He was of the opinion that Mrs Yuen currently suffered from a severe depressive episode without psychotic symptoms. The Claimant’s mental condition appeared to have deteriorated further after Dr Lack had assessed her. She had presented with a depressed mood over a number of years which had partially responded to anti-depressant medication, intensive counselling and support from the community psychiatric nurse. She also had a variety of symptoms which included recurrent thoughts of self harm and a marked difficulty in her ability to concentrate. He concluded that:
“given Mrs Yuen’s current clinical presentation she may experience difficulties in participating in court proceedings. While she is able to understand the charges that she is facing, as well as being able to understand the difference between pleading guilty and not guilty, we believe that in her current state of mind, she will find it difficult to comprehend the details of the evidence presented in court as well as having difficulties in positively instructing her lawyers.”
[22]The current uncertainty in relation to the extradition proceedings may have compounded her current clinical presentation, but in addition to the extradition proceedings, Dr Bustos noted that Mrs Yuen had also suffered the breakdown of her marriage: it was clear that she felt betrayed by her husband and was unable to come to terms with the fact he was no longer with her. She continued to require specialist psychiatric treatment.[23]On 9 November 2006, the Secretary of State wrote to the Claimant’s solicitors enclosing a copy of this 2004 report from Dr Bustos, saying there was no indication on the file that a copy had been sent to the Claimant. There had thus been a gap, we note, somewhat in excess of 2 years between the commissioning of that report and the next communication from the Home Office to the Claimant’s solicitors. The Secretary of State’s chronology stated that on one occasion in 2005 the file had been examined by an official, but that is as far as activity appeared to have gone. The letter of 9 November 2006 said that no decision had been made over the extradition and one was intended soon, but because of the “regrettable lapse” of time since the report of 26 July 2004, a further report from Dr Bustos was to be sought.[24]Before he carried out his examination and reported, Dr Smith provided him with her most recent report of 17 January 2007. She had seen Mrs Yuen on a frequent and regular basis, and had last seen her in December 2006. She continued to be on prescribed anti-depressant medication and to suffer multiple severe symptoms with a high level of distress, causing a lack of enjoyment or motivation for normal activities and various other symptoms of a depressive disorder. She continued to feel hopeless about the future, with low self esteem, self critical thoughts, and suicidal ideas. She tried to resist any suicidal intent, although had not always been able to do so, at which time she required the intervention of a specialist psychiatric team to manage the risk. In summary:
“Mrs Yuen continues to suffer from a depressive disorder, moderate to severe, with significant symptoms, and an extremely detrimental affect on her functioning, with serious suicidal ideas, hopelessness, and requiring the intervention of our most intensive services.”
[25]Her original opinion remained unchanged. The depressive disorder and extreme distress were the consequences of her husband’s disappearance, coupled with allegations that she was involved in fraudulent activities. Those factors were exacerbated by her arrest and ongoing court proceedings, and were at their most severe because of the extradition proceedings. Treatment was of little benefit while they remained ongoing. Her mental state would deteriorate further and her risk of suicide would increase upon extradition because of the loss of the support from mental health services and from her children. Dr Smith and the team remained extremely concerned about Mrs Yuen’s mental and physical health; she would consider her to be at an “extremely high risk of suicide should she be extradited”, and would “almost certainly” attempt to kill herself.[26]Dr Bustos’ report was eventually obtained, dated 26 April 2007. By this time Mrs Yuen’s elder daughter had married and moved out of the family home. The younger daughter was in employment but lived at home, and her son was away at university in his third year. Mrs Yuen’s presentation had deteriorated towards the end of 2006, coinciding with further developments in the ongoing extradition procedure. He described Mrs Yuen at the interview as being unsure as to why she was being seen, showing a visibly high level of distress throughout the interview, and becoming enraged when referring to her husband. It remained his view that she continued to suffer from a severe depressive disorder without psychotic symptoms and that these symptoms had developed over a number of years after her arrival in the UK. The intensity of the disorder had varied with periods of partial remission and exacerbation, which seemed to follow the developments of her legal case. He then added:
“it is my opinion that given Mrs Yuen’s current clinical presentation, she may experience difficulty participating in legal proceedings in a meaningful way. It is likely that were she to be extradited to Hong Kong, where legal proceedings would take place her mental condition may deteriorate further. It is however difficult to predict the degree and nature of such deterioration. In this regard, the main risk in Mrs Yuen’s case continues to be the risk of suicide, which has in the past required her admission to hospital as well as intensive community support. This situation is unlikely to change in the foreseeable future.”
A prompt resolution would help the disorder in the long term which ever way it went.[27]We turn now to the evidence about the procedures and facilities available in Hong Kong were she to be extradited. The Secretary of State’s decision letters accurately summarised the information provided by the Department of Justice in Hong Kong about the procedures that would be followed for the return journey and upon arrival in Hong Kong. In addition to the accompanying psychiatric nurse, there would be two police officers, one of whom would be a woman, aware of the depressive illness. The procedures for dealing with mentally ill detained persons were described, together with the relevant provisions of the Mental Health Ordinance. The operating procedures manual for close observation for the prevention of suicide, and treatment in the aftermath of an attempted suicide, was also provided. The facilities and services at the Siu Lam Psychiatric Centre were described in material sent to the Secretary of State. This is where the Claimant would be remanded if in custody or would be hospitalised if a Hospital Order were made after a finding of fact against her.[28]The Hong Kong authorities wrote, through senior Government Counsel, on 24 June 2003 confirming that the law on fitness to plead was largely the same as in the UK. The question would be whether the defendant was of sufficient intellect to comprehend the course of the proceedings of the trial, so as to make a proper defence and to understand the details of the evidence. If the Court found a defendant was unable to communicate with his legal advisers, he should be found unfit to be tried. The onus of proof was on the defence on the balance of probabilities. The resolution of any disability issue could be postponed until the opening of the case for the defence, as the defendant might be acquitted at that stage on any charges. Mr Hines agreed that the procedures for assessing whether someone was fit to plead were very similar to those which would apply in the United Kingdom.[29]If the defendant were under a disability, the Court would have to decide whether the facts of the crime had been committed by the accused. The Hong Kong Criminal Procedure Ordinance 32/2000 section 76, set out the procedures where an individual, applying the same tests as would be applied in an English Court, were found to be unfit to plead.[30]After an adverse finding of fact in those circumstances, the Court’s powers would include admitting her to hospital, if it were necessary in her interests, and if the Court were satisfied of that on the evidence of two or more registered practitioners, appropriately qualified. A Guardianship Order or Supervision and Treatment Order could be made, as could an order for her absolute discharge.

Section 12(2) of the Extradition Act 1989: the passage of time

[31]The offences were alleged to have been committed over a period between 1996 and 1998. The time elapsed until the Secretary of State reached her decision in January 2008 is of the order of a decade or more. There was no suggestion that the Hong Kong authorities bore any responsibility for the passage of time, whether before the issue of the arrest warrant or before its execution in September 2000. The Hong Kong authorities appear to have answered all subsequent requests for information promptly.[32]It is clear that the Secretary of State bears responsibility for the passage of time from Dr Bustos’ July 2004 report to November 2006, a lapse of time which itself occasioned further delay in obtaining updated reports, a period overall longer than two years. There is no evidence that the file was under any active consideration during that period or that any information was being sought from anyone. No satisfactory explanation has been forthcoming. The assertion in the decision letter that this particular part of the total passage of time was occasioned by the need to obtain information and to give it careful consideration is refuted by her own chronology in this case.[33]However, as the letter says, even culpable delay does not of itself satisfy the statutory test; nor, we observe, does an absence of culpability prevent the test being satisfied either. The culpable delay by the Secretary of State relates only to a fairly small part of the overall passage of time. Otherwise, we accept that this is not a straightforward case, and care over ascertaining and considering the Claimant’s variable mental health was required.

Unjust or oppressive

[34]The crucial question within s 12(2) (a) is whether the passage of time has made it unjust or oppressive to extradite the Claimant, or more precisely for this court, whether the Secretary of State’s decision that it had not done so was legally flawed on public law principles.[35]Mr Hines submits that it would be unjust to extradite her because of the impact which the passage of time has had on her mental health and on her ability to conduct her defence: to understand the evidence against her, to give instructions and to give evidence herself. The Secretary of State could only rationally conclude that it would be unjust to order her extradition.[36]The representations on behalf of Mrs Yuen, which the Secretary of State considered in the January 2008 decision letter, were that the prejudicial effect of the passage of ten years on Mrs Yuen’s ability to mount her defence were self-evident: diminished witness and defendant recollection of what she knew, at the time, of bank accounts and complex property transactions. The Secretary of State’s decision rightly points out that the Claimant has not said what her defence would be, nor detailed the prejudice allegedly suffered and why. Ms Dobbin for the Secretary of State rightly submits that a mere assertion that long delay is self-evidently prejudicial is insufficient. That point, referredto in Woodcock v New Zealand [2003] EWHC 2668 (Admin) [2004] 1 WLR 1979, has been reinforced in United States of America v Tollman [2008] EWHC 184(Admin), paras 44-48.[37]Nothing was said in the representations about which helpful witnesses were no longer available or of why Mrs Yuen could not go through the documents, and explain her role or indeed why she had not done so already. She has known for at least eight years what the allegations were, and of the role which her apparent signature on various documents is alleged to show she played. She has had at least the substance of the evidence relied on by the Hong Kong authorities for some time, since they had to show a prima facie case. She has had the documentary evidence. This is not a case in which, for a period of ten years, she has been unaware that proceedings might be brought, nor have her own documents been destroyed, nor has her memory been allowed to fade without the opportunity to commit her version to paper or to set investigations in train. This is not a case either in which it is said that witnesses have disappeared, save for her husband, who cannot be assumed to be helpful to her. Nothing was said about whether any witnesses had faded memories, of what or why. It is of course likely that the Hong Kong police were aware that the signatures appeared to be hers at the time when they charged her husband, but we are not persuaded that there is any real basis for supposing that she has been pursued only because her husband has disappeared.[38]Mr Hines says that the case is more complex than simply whether she signed the offending documents or whether her signatures were forged. The evidence about that would involve more than her denial coupled with expert handwriting evidence: it could involve alibi evidence or evidence about her negligible involvement with the dormant accounts used in the transfer. We can understand that a handwriting expert’s evidence might not be conclusive, that what she had to say about her involvement with the accounts and her whereabouts at critical times could be important, and that her explanations for seemingly incriminating documents might be a counterpoint to any qualifications to the expert evidence. Indeed, even if she did sign the documents, there may well be a question of what she knew of the purpose behind her signature. This was all however an oral elaboration of the representations considered in the decision under challenge, but it did not really add anything to the specificity of the case or prejudice. There is no significant evidence as to the detail of her defence or as to how the passage of time has prejudiced it in any specific way.[39]Mr Hines’ real point, which he says is supported by the medical evidence, is that her mental health is such that instructions cannot be taken on these matters because of the distress and depression which trying to do so would bring on. Her defence cannot be elaborated in the extradition proceedings, nor could it have been prepared when her recollection should, in normal circumstances, have been better. Her legal team has made a conscious decision not to seek her instructions. There is no direct evidence of that, but we are prepared to accept what Mr Hines says about it.[40]We accept that the medical reports of both Dr Smith and Dr Bustos show that she has been badly affected by her husband’s conduct in leaving her. If what she says is true about the offences, she is distressed at her husband involving her name in fraud and consequently in these proceedings and is understandably distressed at such allegations being made at all. How far that is actually the cause of her genuine distress of course cannot be known yet, but there is a prima facie case against her. The prospect of extradition proceedings and trial is greatly disturbing and distressing to her. We infer from the material before the Secretary of State that dealing with these issues for the purposes of these proceedings and for any possible trial would also be distressing.[41]However, this is crucially a matter of degree. There is no direct medical evidence which says that, however carefully coaxed and supported, she cannot explain the nature of her defence sufficiently for any prejudice to be specifically demonstrated. Nor is there direct evidence to show that she simply cannot be taken through the documents for her comments to build her defence in preparation for trial. The Secretary of State was, in our judgment, entitled to say that the evidence did not show that extradition would be unjust through the passage of time because of prejudice to the defence. The points made by Mr Hines would be as good or bad if she were to be tried in England. They do not derive from the passage of time or from events occurring in any significant passage of time. They are associated with her husband’s abandonment of her, his actions in committing a fraud in which she was wittingly or unwittingly involved by him, in the fact of the allegations being made, in her arrest, and exacerbated by the extradition proceedings and intended prosecution. These problems were present even in 2003. There has been some deterioration over time, but much of the variation in her condition has reflected steps being taken in the extradition proceedings.[42]Mr Hines next submits that the Secretary of State should have concluded that it was oppressive to order her return. That was the only rational conclusion to which she could have come. We consider under this heading the issues relating to fitness to plead, remand and post trial or hearing disposal.[43]We reject Mr Hines’ submission that the Secretary of State’s decision letter reveals a failure to fulfil her own duty under s12, and instead abdicates her decision to the Hong Kong authorities on the basis of the system which they have for dealing with this type of case. First, the Secretary of State has correctly understood the import of Dr Bustos’ evidence that the Claimant’s fitness to plead was an unresolved issue. Dr Smith does not deal with that, and she is not approved to do so under s12 Mental Health Act 1983, unlike Dr Bustos. Something was made by Mr Hines of differences between the two reports of Dr Bustos, but we see no real difference. The critical sentence is all but the same: she “may experience difficulty participating in legal proceedings”. What then follows in the first report is not repeated in the second report, but is an explanation of that single sentence in the first report, and we regard it as the continuing explanation for the almost identical sentence in the second report.[44]This is therefore akin to the situation in cases such as R (Warren) v SSHD [2003] EWHC 1177 (Admin), but not to that in R (Davies) v SSHD [1997] EWHC 733 (Admin), or Tollman, above, in which the District Judge accepted the uncontroverted evidence of three doctors called on behalf of Mrs Tollman, and concluded that she would not be fit to give evidence or effectively to participate in the extradition proceedings or in her trial. That conclusion on the material available to him was not challenged on appeal. We do not think that much is gained by a comparison of the medical conditions as described in the various reports; what matters is the conclusion as to fitness to plead which the doctors or courts drew.[45]Second, where there is an issue as to fitness to plead, the Secretary of State has to consider the procedures adopted, and facilities available, in the requesting state to deal with that issue and the potential consequences of a finding of unfitness to plead. As was pointed out in Tollman, that must be shown by evidence. It cannot simply be passed on to the requesting state nor, on an issue of this sort, should it be assumed in the absence of evidence that the law in a foreign state is the same as the law of England. And such an assumption would say nothing about the reality of facilities and treatment.[46]What is said in paragraph 163 of Tollman bears repetition in relation to s12.:
“Of course, what actually happens in the country of trial over medical treatment, bail, the way in which fitness to plead is assessed, the way in which the ill may be tried are all factors relevant to answering the question posed within section 92. The closer the courts of that country are to applying the same test in the same way as the UK courts, the more potent is the argument that return and trial would not be unjust or oppressive because of the protections there available.”
[47]The Secretary of State did not simply pass the issue over to the requesting state. She had good evidence as to what the Hong Kong authorities and courts would do. This covered the medical escort on the journey back, the remand process, the facilities and treatment available should the Claimant be remanded in custody. This material dealt specifically with the close attention given to someone who was a suicide risk. There is no reason to doubt the evidence as to the quality of the institution to which Mrs Yuen might be sent. The legal basis and procedures for determining fitness to plead are essentially the same as in England. The consequences of a finding of unfitness to plead for the ensuing fact finding process are essentially the same as in England. This was spelt out more fully in the September 2007 decision. Although we are more than a little unclear as to how the factual issue would usefully be defined for decision by the Court, and how that could be determined fairly in the absence of coherent evidence from the Claimant on the facts of this case, we see no reason to suppose that that problem would not be resolved in exactly the same way as the self-same problem would be resolved in an English court. The range of disposals available once such a finding has been made cover the same range as would be available in England.[48]Mr Hines raised two points. He asserted that the evidence from Hong Kong showed it to be inevitable that the Claimant would be remanded in custody. We disagree. The evidence deals with remand in custody because that is the concern which was raised. It does not deal with whether remand would be in custody. That, we accept, would be for judicial decision in the usual way, save that the Magistrate could go to hospital to deal with the issue. He also expressed the fear that, if found unfit to plead, the Claimant could languish in custody indefinitely, even if in hospital, while a recovery which might never happen was awaited. But the range of disposals after the fact finding decision is as varied as it would be in England.[49]Accordingly, no error of legal approach was made by the Secretary of State. Her conclusion that the unresolved issue of fitness to plead should be resolved by the courts of the receiving state was reasonable. She had ample evidence upon which to reach a rational decision that extradition would not be oppressive by reason of the passage of time or at all.[50]The medical evidence as to how the passage of time had affected the Claimant does not really alter that. The problem arises from her mental health itself, rather than the passage of time. Most of the contributing factors would be present more or less to the same degree however promptly the Secretary of State had acted. We have already set out the factors contributing to her condition. There is also some exacerbation because of the prospect that she might be extradited; that will not really be alleviated by knowing for certain that she will be extradited. It will only really be alleviated by knowing that she will not be extradited. What has exacerbated her condition is the taking of further steps in the decision-making process, and her condition has then calmed down to a degree, as the step proves ineffectual. Some symptoms might have been exacerbated, particularly her fears in relation to her youngest child before adulthood, had the extradition proceeded more promptly. But those cannot now be present to anything like the same degree.[51]We accept that in relation to the injustice and oppressiveness of extradition, the Secretary of State has ignored her department’s own responsibility for part of the delay, treating it as a proper part of the examination of the circumstances, when in reality the case was allowed to become dormant, and appears not to have been chased by the Claimant either. But the decision letter addresses the issue on the basis that there may have been culpability and we see no basis for holding that the Secretary of State’s decision was vitiated by her approach to her delay.[52]Mr Hines also accepted that the Hong Kong courts would apply the same approach as in England to an application for a stay based on abuse of process, if it were no longer be possible for the Claimant to receive a fair trial for reasons which fell short of her unfitness to plead. This would cover any broader issues of her ability adequately to participate in the trial process for it to be fair.[53]For our part, we are not persuaded that the material before the court shows that such a trial would have to be stayed as unfair to her because of her circumstances. We would not rule out that it could happen, and it would have to be the subject of better evidence than is before this court, but that would be a matter for the trial judge. The sort of hardships and difficulties which the Claimant would face in a trial, would be much the same in Hong Kong as they would be in England save for separation from her adult children, from the place where she has lived for the last decade and disruption in the continuity of the medical care which she needs to receive. That does not make the Secretary of State’s conclusion on oppression unreasonable.

Article 8 ECHR

[54]Lastly, we turn to Article 8 ECHR. As Mr Hines has said, and is apparent, the factors which he relies on are inter-related. They can be brought together under this head. The Secretary of State does not deal with Article 8 explicitly, although in reality she would have regarded it as covered by the factors which she considered in relation to s12. However, there is a different standard of review for this purpose from that to be applied to a decision under s 12, and it requires a more intensive scrutiny of the effect of extradition on the Claimant’s rights.[55]There would be an interference with her private life, through the adverse effect which extradition would have on her mental health, and in particular on the continuity of treatment by the team which she knows, and on the support from her children at what would be a time when her depression and distress would undoubtedly be exacerbated. However, the evidence as to the support which she would have on the return journey, and when in Hong Kong, shows that a proper level of care would be available from the medical services, even though her needs would have intensified. The children would be able to return with her or to see her: there is no immigration, language or cultural bar. They all lived there for substantial parts of their lives. There would undoubtedly be disruption to their own circumstances while they were in Hong Kong with her, but their presence would mitigate, though not remove, the impact of the disruption to their support for their mother. There has been no suggestion that they would not and could not go back at all for any period. We accept that the Claimant’s very elderly father, a sibling and her husband’s brother do not amount to a support network, or much at all by way of family, in Hong Kong to comfort her.[56]The approach to Articles 3 and 8 in the context of a risk of suicide on removal has been considered by the Court of Appeal in a number of cases, such as J v SSHD [2005] EWCA Civ 629, and more recently in RA (Sri Lanka) v SSHD [2008] EWCA Civ 1210, notably at paragraph 49. Although the issue in each case was whether the AIT had erred in law, the cases are instructive, not just for the degree of risk of suicide which did not preclude removal, but more for the factors which are relevant, including the availability of care before departure, on the journey, on arrival and during residence or, as here, during any period in custody or on bail. The outcome of those cases does not suggest that a decision in favour of extradition on the evidence here would be out of line with what has been regarded as compatible with Convention rights in other cases. Tajik v USA [2008] EWHC 666 (Admin), which concerned an acute physical condition, showed that a high threshold had to be crossed before a physical or mental condition could make extradition disproportionate.[57]The Claimant’s family life would be disrupted. But her children are adults, one is away from home as she is married, another is away at university, and the third who lives at home is an adult in her late twenties, who can be expected to leave home sooner rather than only in the long term. Mrs Yuen would be removed from the home which she has known for the last ten years, but she would be going back to the place where she lived most of her life, where the language and culture will be familiar to her. She held a Hong Kong identity card and was a permanent resident of Hong Kong. From this point of view, the process would be rather less disruptive than for many who are extradited. (She holds a British passport but her rights to remain here are not agreed).[58]Against those factors has to be put the undoubted public interest in the maintenance of the obligations of mutuality in the extradition system, and in the trial of those who are accused of serious crimes, such as those which the Claimant faces. The Divisional Court held in 2002 that there was a clear prima facie case against her. Whatever other adjectives may be appropriate to describe the test or expectation, we would expect a clear and compelling case to be shown before the extradition of the Claimant could be held disproportionate.[59]Mr Hines suggested that the overall lapse of time, and that part for which the Secretary of State should be held responsible, told against the extradition. He cited EB (Kosovo) v SSHD [2008] UKHL 41, [2008] 3 WLR 178, paragraphs 12-16. This immigration case concerned the effect on removals of delays in the decision –making process. Changes to family and private life during this period are relevant. The gradual lifting of a sense of impermanence is relevant. Less weight can be attached to a government policy which the Government itself fails to comply with in terms of speed and consistency. This, however, does not advance Mr Hines’ case. During the passage of time, the children have grown up, the risk to the son can be discounted now as Mr Hines accepted, the eldest has left home, and the son is away during university terms.[60]His suggestion that it was unfair for the Secretary of State to be able to rely on changes which had occurred during the delay and which reduced some of the force of the argument which the Claimant would otherwise have had, is unrealistic. The crucial issue depends on the circumstances as at the date of decision. This is rather different from the usual circumstances where a serious delay in decision-making has deprived an individual of a status which he should have had, consistently with a policy, and from which he would have continued to benefit.[61]The Claimant has not been lulled by the passage of time into any false sense of security. She has known throughout the period during which she has contested extradition that the issue was as yet unresolved. The period of indecision or inactivity between 2004-6, in which, so far as the evidence goes, no steps were taken by either side, could not have had that effect and there is no evidence that it did. Save for the question of her mental health, there was no reason why she should not have prepared her response to the evidence during that period either.[62]In reality, as we have said earlier in a different context, the difficulties and hardship relied on here arise in good measure from the fact that she would be facing trial rather than from the fact that she would be facing extradition. There is nothing which shows that the fact of trial would now be a breach of her rights; that would be a matter for an abuse application to be decided by the trial judge. The impact on her family and private life, aside from the impact on her mental health, could not show extradition to be disproportionate. The real question is whether her mental health and the risk of suicide, with the other factors added in, shows that extradition would be disproportionate. The particular feature is the disruption to the treatment and family support which that would entail. Against that is to be set the facilities and care available on decision, on the journey and in Hong Kong, and the protective legal processes.[63]Although this extradition would cause hardship, which takes a different form from that found in many cases, we cannot say that it would be disproportionate to the very important public interest in the honouring of mutual obligations and the trial of those who face, properly, serious criminal charges.[64]Accordingly, we would dismiss this application.

Cited in 1 later judgment