S v The Court of Bologna (An Italian Judicial Authority) [2010] EWHC 1184 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
[2010] EWHC 1184 (Admin)Case No Case No: CO/2776/2010Venue Royal Courts of Justice, Strand, London,, WC2A 2LL
Between
SAppellantThe Court of Bologna (An Italian Judicial Authority)Respondent
Before
Mr Justice FoskettRichard Mobbs (instructed by Knights Solicitors) for the AppellantAaron Watkins (instructed by CPS Extradition Unit) for the RespondentHearing date: 19th May2010
[1]Mr Justice Foskett: Introduction This is an appeal under section 26 of the Extradition Act 2003 by S ('the Appellant'), who is a Moroccan national now aged 31, against an extradition order made by District Judge Riddle at the City of Westminster Magistrates' Court on 22 February 2010 pursuant to a European Arrest Warrant ('the warrant') issued by the Italian Judicial Authority, the Court of Bologna, on 22 June 2009.[2]Italy is a Category 1 territory and the case falls under Part 1 of the Act.[3]The power of this court to interfere with the decision of the Judge is set out in section 27. The High Court may allow the appeal only if the conditions in subsection (3) or subsection (4) are satisfied. Subsection (4) does not arise in this case. The conditions in subsection (3) are that the judge ought to have decided a question before him differently and if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.[4]So far as this court's approach to the appeal is concerned, as Sedley LJ said in Wiejak v Olsztyn Circuit Court of Poland [2007] EWHC 2123 (Admin) , this court must consider the District Judge's reasons with great care in order to decide whether it differs from the decision made, but so far as findings of fact are concerned, at least where the District Judge has heard evidence, those findings should ordinarily be respected in their entirety. The warrant and its background[5]The Appellant is wanted by the Italian authorities in order to prosecute him for supplying cocaine and hashish to a number of named individuals. The offences are alleged to have taken place from the summer of 2007 until January 2008 when he was arrested. The suggestion, I understand, is that the Appellant admitted his involvement and after a period in custody in Italy was released under house arrest. Indeed in the papers before the court is a translation of a deposition taken on 22 October 2008 at the Public Prosecutor's Office in Bologna when the Appellant, with his lawyer present, made various admissions concerning the allegations. He also asserted that he was a police informer.[6]Whilst under house arrest and awaiting trial, he fled from Italy and travelled by train to France, by air to Sweden and then Denmark, then to Ireland before coming to London en route for Canada. He was using a false passport and it was that that invited the attention of the immigration authorities here. It appears that he was arrested in June 2009 and convicted at Isleworth Crown Court of possession of a false identity document on 3 July 2009. He was sentenced to 9 months imprisonment.[7]On his release from that sentence he was to be deported to Morocco. It was at that time that he was arrested on the warrant referred to in paragraph I above. He was arrested on 16 September 2009 at Heathrow Airport and has been held in custody whilst the extradition proceedings have been proceeding. The extradition proceedings[8]A final hearing of those proceedings took place on 3 February this year and the reserved judgment of the District Judge was given on 22 February.[9]The District Judge had heard oral evidence from the Appellant and received a report from Dr Cosmo Hallström, a Consultant Psychiatrist, to which I will refer in more detail later. Dr Hallström was not available to give oral evidence at the final hearing because he was abroad.[10]The District Judge also had certain documentary material to consider. The issues raised before the District Judge and the essence of the Appellant's case against extradition[11]Whilst the matter is put on effectively three different bases, the essential argument here is that the Appellant is too great a suicide risk to make it appropriate for him to be extradited.[12]For reasons I will turn to shortly, the District Judge rejected this and held that the extradition was compatible with the Appellant's rights under the ECHR and did not represent a breach of section 25 of the Extradition Act 2003.[13]In his written decision, the District Judge mentioned a concern "shared by several of [his] colleagues at an apparent increase in the number of extradition cases when the potential for suicide is argued." That increase appears to have been relatively recent.[14]Bearing in mind that this sentiment comes from the court that at present bears the most significant responsibility for determining the outcome of extradition cases, it is an anecdotal statistic that commands respect. Having conducted a search on an established legal website I have discovered the following cases reported at appellate level between March 2009 and March 2010: R , (on the application of Prosser) v Secretary of State for the Home Department [2010] EWHC 845 (Admin) ; Okruch v Poland [2010] EWHC 1047 (Admin) ; Howes (Kerry) v HM Advocate 2010 SLT 337 ; Lendvai v Hungary [2009] EWHC 3431 (Admin) ; Spanovic v Croatia [2009] EWHC 723 (Admin) ; Yuen v Secretary of State for the Home Department [2009] EWHC 573 (Admin) and Jansons v Latvia [2009] EWHC 1845 (Admin) . I am, of course, unable to say whether the list is exhaustive. The issue has arisen in immigration cases also as the case of J v Secretary of State for the Home Department [2005] EWCA Civ 629 demonstrates.[15]Obviously, as the Judge himself acknowledged, every case has to be judged on its merits and Mr Richard Mobbs, perfectly correctly, cautioned against being influenced unduly by a "floodgates" argument. However, it does at least highlight the need for circumspection in evaluating the evidence when such an issue is raised in case there is a perception that raising the issue an easy way of avoiding extradition. As ought to be apparent from a perusal of the reported cases, any such perception would be erroneous. The case of Prosser, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 845 (Admin) , to which I drew the attention of Counsel, is one such case. I will return to one practical aspect of this in due course (see paragraph 62).[16]As foreshadowed above, the Appellant's case is that there is cogent psychiatric evidence showing that his mental state is such that any order for extradition and the subsequent act of extradition would cause him considerable mental suffering and lead him to self-harm and to make further suicide attempts. The history of self-harm and suicide attempts to which I will refer below, together with the psychiatric report of Dr Hallström, show, it is argued, that he is "at significant risk of self-harm and potentially suicidal". It was submitted, against that background, that extradition would constitute a breach of the Appellant's rights under Articles 3 and 8 of the European Convention on Human Rights and be contrary to section 25 of the Extradition Act 2003.[17]I will return to these arguments when I have reviewed the evidence before the District Judge and recorded his conclusions. The evidence before the District Judge[18]I have already indicated that the oral evidence came from the Appellant. In addition to the report from Dr Hallström the Judge was invited to take account of the written evidence of Detective Constable Ade Onabajo (who arrested the Appellant on 16 September) and, in particular, a number of incident reports. I will set out the sequence of events about which the Judge heard or read.[19]On 16 September 2009, when he was arrested, DC Onabajo noted that the Appellant's left wrist and upper arm were bandaged. He was informed that the Appellant had slit his wrist and cut his upper arm two days before when he was told he was going to be extradited.[20]Dr Hallström's report recorded that on 24 September, when he was received into custody at Wandsworth, it was noted he had no medical problems, that he did not misuse drugs and had a normal mental state.[21]On 30 September 2009, whilst in the custody area at the magistrates' court the Appellant cut his neck and left arm with a razor blade and was subsequently taken to hospital.[22]On 4 October 2009 he was found collapsed on the floor. He had not eaten for four days and had been on a hunger strike.[23]On 19 October 2009 he swallowed four razor blades.[24]On 23 October 2009 he attempted to hang himself during the night, but was found by his cell mate. There was bruising around his throat and deep marks to his neck and scarring to his forearms. Dr Hallström's report noted (presumably from the prison records) that he said he felt stressed and that he had intended to end his life. He said that he feared being deported to Italy and said that he would be killed by the authorities and he did not want to return to an Italian jail. He wanted to be returned to Morocco. He had been unable to contact his wife.[25]On 25 November 2009 he self-harmed, making superficial cuts to the right side of his neck.[26]On 30 November 2009 he self-harmed, cutting his head.[27]On 1 December he was seen in prison by a doctor because he had talked about an evil spirit inside him that wanted to drink his blood and there were concerns that he might be psychotic. He was keen, Dr Hallström records, to be transferred back to a different wing. There was an obvious laceration to the right side of his neck. He could not remember much about it, but said there was a Jinn inside him who wanted to drink his blood. Beyond that he wasn't able to express himself fully, but said that he would not have cut his neck if he had been outside of prison. He then talked about the need to sacrifice a lamb. He wanted to go home, but the Jinn did not want him to. The conclusion was that he was not psychotic and that his beliefs were in keeping with his cultural beliefs and there was no current thought of self harm.[28]There appears to have been no further incident for a number of weeks.[29]On 22 January 2010 he self-harmed again, on this occasion causing a deep cut to the side of his neck.[30]Dr Hallstrcim's report recorded that on 23 January 2010 he was reviewed and no psychotic features were displayed or reported. The issue, Dr Hallström recorded (again, presumably from the prison medical records), was that it "appeared to be to do with his immigration status and the likelihood of being deported back to Italy. He said he would be badly treated if he was sent back to Italy, where he had been before arriving in the UK."[31]Dr Hallström saw the Appellant for an hour at Wandsworth Prison on 1 February and interviewed him with the assistance of an interpreter. Dr Hallström observed that he had a large bandage on his neck and bruising to the upper part of his chest. Dr Hallström also spoke to some of the officers on his wing.[32]As 1 have indicated, the final hearing took place on 3 February.[33]Dr Hallström's report contained the following paragraphs concerning his interview with the Appellant:
"He spoke at great length about various Jinns; spirits that lived and controlled him in various ways. I am told that such Jinns are accepted as normal within his cultural background. As he spoke, he elaborated on these Jinns. They included the spirit of King George, who had shown him various palaces in his sleep and suggested that he would be allowed to live in one of these palaces if he died whilst in England. It was also these Jinns that had told him to kill himself to avoid going back to Italy. The Jinns had come to him at night and told him that he should cut himself to die. He told me that the Jinn had told him to get a passport and go to Canada, He realised he would be arrested, but his destiny was being controlled by the Jinn. He told me there was conflict between the various Jinns, giving him various messages. The Jinns suggested he should go and live in Egypt, or possibly Venezuela."
[34]In relation to this feature of his presentation, Dr Hallström said this:
"He spoke at length about various spirits and their controls over him. The story became more fantastic as he elaborated it. He appeared to be emotionally warm. He was fully conscious. Beyond his fantastic account of the various spirits, which to my view as a psychiatrist practising in the multi-cultural London, seemed beyond what was acceptable within cultural beliefs, but I may be proved wrong on that point."
[35]He also said that "[beyond] his strange preoccupation with the spirits, he didn't appear in any other way mentally abnormal." He had, according to Dr Hallström, "a normal intelligence and was able to communicate freely with the interpreter and briefly with me in Italian." He said that whilst he was not happy he "did not appear to be depressed."[36]In relation to his conversations with prison officers, Dr Hallström recorded the following:
"According to the prison officers on his wing, they accepted that he had strange behaviour and was self harming. They thought he was manipulative and trying to avoid being deported. They didn't see his attempts at self harm as being serious, although it seems his most recent cut to his neck was quite deep and his attempts at hanging were potentially fatal. They didn't see him as someone who was overtly mentally ill."
[37]Dr Hallström was (understandably, it may be thought) guarded in his evaluation of the Appellant and said that he was "unable to formulate a clear diagnosis." His opportunity to interview him was confined to one hour and, as he said, he was "a difficult man to evaluate because of the unusual presentation and the conflicting and uncertain information about his background." He repeated that he did not "appear to be suffering from any formal mental illness, such as schizophrenia or manic depression." That said "his behaviour is so extreme and illogical and his preoccupations with the spirit world so intense, that the possibility that he has a psychotic illness remains a possibility." It is to be noted that Dr Hallström alluded to obvious "inconsistencies in his story" and said that the account he gave of the various spirits "seemed to be incredulous, even if I am told it was within the cultural norm." He said that he found "that hard to believe, because of the intensity and all pervasive nature of preoccupations."[38]In relation to a possible diagnosis of "some form of schizophrenic illness" he said this:
"... this is not the general impression that he left me with. I note the prison doctors didn't think he was schizophrenic either. I suspect his problems result from him being a man in a desperate situation, superimposed on a weak personality, who fears being sent back to Italy. This would appear to be the most consistent account of his situation. ..... Whilst there is a possibility that he has some form of serious mental illness such as schizophrenia, this would only be based on the fact that he talks freely of his spirit world and resorted to repeated self harm as a consequence of the instructions from these voices in a manner that I find illogical and not understandable. Beyond that he seemed in control of himself and no one else has really thought that he was schizophrenic and he didn't present as schizophrenic to me, although the possibility of schizophrenia cannot be discounted."
[39]His conclusion, upon which Mr Mobbs, who represented him before the District

Judge and before me, places considerable reliance was as follows:

"He is at significant risk of self harm and potentially suicidal. I think he needs to be transferred to a hospital for observation and closer monitoring. There is a real risk of him killing himself in the foreseeable future. Hospital treatment should provide greater safety, better psychiatric monitoring and a greater chance of formulating a proper diagnosis and instituting treatment. There may be an argument that he would be better treated in Italy where he speaks the language, as opposed to England, where there is the marked language and cultural barrier."
[40]That conclusion is also relied upon by Mr Aaron Watkins who represents the Respondent. 1 will return to the competing submissions later (see paragraphs 48-60 below). The District Judge's conclusions[41]The first matter the Judge had to consider was the evidence that the Appellant would be killed or caused serious injury if extradited. This depended upon an evaluation of the Appellant's own evidence. It is clear that the Judge rejected this conclusively. The relevant part of the decision was as follows: As for the first ground relied on by the [the Appellant] ... I have no hesitation in rejecting that claim. In his first proof of evidence [the Appellant] referred to an attack in prison for which he received hospital treatment. He has changed his account on this. The Italian judicial authority has provided information confirming that [he] was detained in Bologna prison from 10 January 2008 to 6 May 2008 and from 10 September 2008 to 16 October 2008. During that time he was involved in three episodes, but none of these appears to involve violence aimed at him. On the third episode he reported that he had intervened to separate two inmates and had suffered very minor injuries (small scratch to his right cheek) for which hospital treatment was not necessary. The prison officers who intervened "could not find metal bars, but the leg of a table, a piece of the stick of a long brush and a piece of a coffee pot." "From the file it does not result in that [the Appellant] during his imprisonment suffered violence or as a consequence was treated in hospital." The account [the Appellant] gave in his proof is untrue. I am satisfied it is a deliberate lie. He says in his first proof that after he was released from prison he was attacked again, this time with a broken bottle and a knife, in his second proof he admitted this was incorrect. He now says he was assaulted in this way before his admission to hospital in January 2006. In fact there is a real doubt as to whether he was the patient treated in 2006. That patient is not named in the documents I have seen and Dr Hallström observes discrepancies between [the Appellant's] scars and those described in the hospital records. [The Appellant] blames his mistake on a head injury in Morocco. Again I refer to the doubts cast on this account by the doctor. [He] says he is under threat from the Mafia because he has been acting as a police informant since the end of 2005. If this were true it would be easily verifiable by his police handlers. He would know who they are and where they are. It is clear that he has named other individuals at various stages. He told police during the current investigation that he is a police informant. The Office of the Public Prosecutor attached to the Court of Bologna says that it has not been verified that he is a police informant. There is of course a difference between someone who, when interviewed by the police or the requesting authorities, inculpates other people, and someone who is a registered informant. [The Appellant] has indeed named other people. That is a routine occurrence in all jurisdictions. Often it leads to unpopularity with other criminals and sometimes it leads to violence. Here I am satisfied the risk is low; there has been no actual violence against him at all; and if the risk increases should he be returned to Italy, then the authorities can take appropriate steps to protect him."[42]The Judge went on to say, however, that the second ground, namely, that he is at risk of suicide and therefore should not be extradited, "is far more substantial, and has caused me concern."[43]He described Dr Hallström as "a distinguished psychiatrist" whose report and conclusions he accepted entirely with the exception of the paragraphs dealing with the Appellant's fears of being murdered by the Mafia or by the prison or judicial authorities.[44]The Judge did consider adjourning the matter "to see whether hospital treatment could be provided and whether better psychiatric monitoring provides further relevant information", but decided not to do so. He gave his reason as follows:
"On balance I decided to proceed on the information currently available. I note the argument mentioned by the doctor that [the Appellant] would be better treated in Italy. I note also that the whole process of litigation and awaiting a decision from the courts is bound to increase the anxiety and therefore likely increase the chance of self harm. Finally I have decided that the further information to be gleaned is highly unlikely to change the decision in this case."
[45]The factors that militated in favour of permitting the extradition can be gleaned from the following passages in the Judge's decision:
"The fact that [the Appellant] is at significant risk of self harm and potentially suicidal is not of itself sufficient to justify a finding that extradition should be stayed on human rights grounds. This is an awkward decision for any person to make about another person. Many judges have been touched in their professional or private lives by suicide. We are all aware of the human tragedy involved; the heartbreak for family; and the effects on many others including those who may be blamed (by themselves or others) as having at least some responsibility for the suicide. Thus making a decision such as this one is not easy. However, there are a number of other balancing factors to be considered. One is the public policy that criminals be held accountable for their crime. Another is the desirability of honouring extradition treaties. A third is the respect due to the humanity of the requesting state, particularly within the European Union. The court must also take account of the nature of the extradition offence: in borderline cases the seriousness of the offence may be a factor to take into account."
[46]The Judge referred to Jansons v Latvia (see paragraph 50 below) and Lendvcti v Hungary [2009] EWHC 3431 (Admin) and distinguished the former from the present case by saying that the court in Jansons was effectively "being asked to send a man to certain death by his own hand for theft of two mobile phones." Here, the Judge said, "the position is quite different, both in terms of the degree of risk and the nature of the offence in Italy."[47]Having referred to the concerns that he and his colleagues shared (see paragraph 13 above) he said that "the risk of suicide, even when real, should be seen as unlikely to prevent extradition" and that "[only] in exceptional cases is it likely to succeed." He concluded that extradition was not incompatible with the Appellant's Convention rights and expressed himself thus: "In this case I take into account the public policy factors mentioned above. I take into account the expert assessment of the risk of suicide. I also take into account the real possibility that [the Appellant] is exhibiting manipulative behaviour in order to avoid being extradited. I take into account the lack of diagnosis of any psychiatric condition (although there may be such a condition). I also rely on my finding that the [the Appellant's] fear of suffering violence in Italy is exaggerated, and that he has lied about this. There is no substantial reason to believe that the Italian authorities would not take appropriate steps to care for him. I take into account the serious nature of the allegations he faces The arguments advanced on the appeal[48]It seems logical, given the way the argument was addressed, for me to deal first of all with Mr Mobbs' submission that the District Judge should have regarded the conditions set out in section 25 of the Extradition Act as met and, accordingly, should have ordered his discharge.[49]Section 25 provides as follows:
"(1) This section applies if at any time in the extradition hearing it appears to the judge that the condition in subsection (2) is satisfied. (2) The condition is that the physical or mental condition of the person in respect of whom the Part 1 warrant is issued is such that it would be unjust or oppressive to extradite him. (3) The judge must— (a) order the person's discharge, or (b) adjourn the extradition hearing until it appears to him that the condition in subsection (2) is no longer satisfied."
[50]Mr Mobbs, relying on the approach of the Divisional Court in Jansons v Latvia [2009] EWHC 1845 (Admin) at [29], submits that section 25 does not involve an assessment of proportionality and that the adequacy or otherwise of the protective mechanisms in the United Kingdom or Italy are irrelevant. Whereas the claims under Articles 3 and 8 involve some consideration of the extent of the obligations of the requested state, given that they originate in an international treaty, he submits that section 25 is a provision of domestic law that focuses purely on the condition of the Appellant. He submits that the Appellant could be successful under section 25 even if extradition would not breach his rights under Articles 3 and 8.[51]I am bound to say that a requirement that "the physical or mental condition" of the person concerned would have to be sufficient to render it "unjust or oppressive to extradite him" does not, on a plain reading, obviously exclude issues of proportionality and the adequacy or otherwise of the protective mechanisms of the UK and the other country concerned in the evaluation of whether the statutory test is met; indeed I would say quite the converse. The words "unjust and oppressive" connote a consideration of all relevant factors that may, depending on the circumstances, include the two factors to which I have referred. For my part, I see nothing in Jansons v Latvia that undermines that proposition.[52]The approach to section 25 is helpfully reviewed in Howes v HM Advocate 2010 SLT 337 , a decision of the High Court of Justiciary given on 9 December 2009. The decision related to section 91 of the Act (which relates to extraditions to Category 2 territories), but is in identical terms to those of section 25. In the opinion of the court delivered by Lord Reed the following was said about section 25: [12] Section 91 of the Act applies where it appears to the judge that "the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him". In such a case, unless an adjournment would be appropriate, the judge must order the person's discharge. In the present case, it was conceded on behalf of the appellant that, for the purposes of s91 of the Act, it would not be unjust to extradite her. It was however submitted that extradition would be oppressive. In that regard, counsel for the appellant made clear that it was not being suggested that the care of persons with mental health problems awaiting trial in the United States, or of convicted persons, was inadequate: his argument was that the apprehended deterioration in the appellant's health consequent upon extradition, and the risk of suicide, was such that extradition would be oppressive. Counsel for the respondent on the other hand submitted that the level of risk involved did not meet the high threshold required. [13] Section 91, and the corresponding provisions in s 25, have been considered in numerous cases, many of which were cited to us. A judgment as to whether it would be unjust or oppressive to extradite a requested person is not however a technical issue of law, but requires the court to form an overall judgment upon the facts of the particular case: a judgment which, as Moses LJ observed in United States v Tollman at [2008] 3 All ER 150 , para 50, is likely to reflect shades of grey rather than black or white. Previous cases are therefore illustrative of the court's approach rather than definitive of the circumstances in which an order for discharge may or may not be appropriate. That said, it is apparent from such cases as Boudhiba v National Court of Justice, Madrid; United States v Tollman; R (on the application of Tajik) v United States', Spanovic v Croatia ; and Jansons v Latvia , that in practice 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. That reflects a number of considerations. One, on which Hale LJ placed emphasis in R (on the application of Warren) v Secretary of State for the Home Department at [2003] EWHC 1177 , para 40, is the public interest in giving effect to treaty obligations in extradition cases. It follows, as Sir Anthony May observed in Jansons v Latvia at [2009] EWHC 1845 (Admin) , para 7, that "this court will not lightly conclude that a threat of suicide is sufficiently grave and likely to be carried out successfully, so that what would otherwise be the due process of extradition under international arrangements should not take place". Another important consideration is the fact that the countries with which such treaties are concluded are likely to have adequate facilities available for treating the health problems of persons whose extradition is requested. That point is illustrated by the case of Boudhiba , which bears some similarity to the present case. There was psychiatric evidence that the appellant was suffering from clinical depression with psychotic features, complicated by post traumatic symptoms. He was said to be suicidal. One of the psychiatrists expressed the view that extradition would probably lead to further deterioration and an increased risk of suicide. Smith LJ, with whom Newman J agreed, stated (at [2007] 1 WLR 144, para 65):
"Spain is a civilised country. The evidence shows that, if extradited, proper examination will be made to ascertain whether the defendant is fit to stand trial. Such examination will also establish whether the defendant is a suicide risk and whether he is in need of psychiatric treatment. So, I would conclude that, even though it may turn out that the defendant is of low intelligence and might be unfit to stand trial, it is not unjust or oppressive to extradite him to Spain."
[53]What is required is the formation of "an overall judgment upon the facts of the particular case" and the observation is made that "in practice 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." That proposition was reinforced in Reece-Edwards v District Court, Suwalki [2009] EWHC 3589 (Admin) to which my attention was drawn by Mr Watkins. As Dyson LJ, as he then was, said:
"It is well established that the hurdle that has to be surmounted in order to satisfy the requirements of section 25 of the 2003 Act is a very high one."
[54]For those reasons, I do not accept that section 25 demands the restricted approach contended for by Mr Mobbs.[55]Returning then to the submissions on the overall merits which Mr Mobbs suggests should operate to allow the appeal, whether on the basis of section 25 or Articles 3 and 8, they can be summarised fairly shortly. He submitted that the Appellant's history of self-harm and suicide attempts, together with the psychiatric report, show that, although a specific psychiatric disorder cannot be identified, the Appellant "is at significant risk of self-harm and potentially suicidal" (see paragraph 16 above) and that this "significant risk" is related to his fears regarding his extradition to Italy, even though these fears may be fanciful or imaginary. He seeks to put the circumstances of this case close to those in Jansons and suggests that the facts can be distinguished from those in Prosser where, although the appellant had attempted suicide in the past (paragraph 13), no details of this were given and there was no evidence of the repeated suicide attempts and additional incidents of self-harm that there are in the present case. He submits that past behaviour is likely to be the best indicator of future behaviour and, accordingly, the risk of suicide is less speculative in the present case than it was in Prosser.[56]Mr Watkins, however, submitted that Dr Hallström's report was inconclusive and fell far short of the circumstances obtaining in Jansons. The psychiatric evidence in that case, he submitted, involved findings that the appellant suffered from depression and an emotionally unstable personality disorder, the combination of which made it difficult for him to cope with stressful events and made him more likely to attempt suicide. He had a "long history of severe self-harm" which, together with a very recent and very serious attempt at ending his own life, led the psychiatrist to say that "If he [the Appellant] is sent back to Latvia his mental state will deteriorate and he will kill himself."[57]Mr Watkins drew attention to the conclusion of Dr Hallström to which I referred in paragraph 38 above and added that there is also no long-term history of serious psychiatric illness or of self-harm, the prospect of the Appellant suffering from a psychotic illness being described only as a possibility, the possibility being based solely on his behaviour and preoccupation with the 'spirit world'. This lack of any clear diagnosis is, he submits, significant. He accepted that the Appellant had attempted to harm himself and appears to have attempted suicide during the currency of the extradition proceedings, but suggested (in my view, correctly) that the information about those incidents was sparse and, in any event, of a less serious nature than in Jansons.[58]I am not wholly persuaded that making comparisons such as these necessarily affords the answer to where in the spectrum of seriousness of risk a particular case comes. Each case and each appellant will be different and affected in different ways (and with different intensities) by the forces that impel them to self harm. However, if Jansons is to be regarded as a case where it was legitimate to prevent extradition, it does provide something of a benchmark by which to judge other cases.[59]Mr Watkins submits that the District Judge made no finding that the Appellant's condition would deteriorate if he was surrendered to Italy and that the evidence did not support a finding that the Appellant would successfully commit suicide if surrendered. Indeed, as he points out, Dr Hallström expressly left open the possibility that "he would be better treated in Italy where he speaks the language, as opposed to England, where there is the marked language and cultural barrier", a matter referred to by the District Judge.[60]It does seem to me that these arguments are valid and essentially put this case in a lower risk category than that exemplified by Jansons. There can never be a complete guarantee that, where there is some evidence of a suicide risk (which plainly has to be acknowledged here), a decision to extradite may not result in the risk materialising. However, the exercise is one of balancing competing considerations and, in my judgment, the District Judge was entirely justified in reaching the decision that he did in this case having balanced all relevant considerations. It was obviously a case that caused him concern - any such case would. But the stark nature of the evidence confronting the court in Jansons was simply not present in this case. Conclusion[61]For those reasons I am not persuaded that I should interfere with the conclusion of the District Judge and the appeal will be dismissed.[62]I would add this observation by way of conclusion. The District Judge was presented with a report prepared by a distinguished Consultant Psychiatrist two days before the final hearing when the psychiatrist was not available to give evidence. Whilst there is, of course, much to be said for not delaying an extradition case, this may have been a case where the judge would have benefited from hearing directly from Dr Hallström and of having the opportunity to test the strength of his views. Even without a psychiatric report commissioned on behalf of the judicial authority, the judicial authority's representative would have been entitled to probe the basis for the opinions expressed. That observation also raises the question of whether the judicial authority ought, at least in some cases raising the issue of suicide risk, to commission their own expert report. If the views of the psychiatrists coincide that might either undermine or strengthen the case for one side or the other depending on the circumstances. But, certainly in a case where a diagnosis is difficult (as here), two views may be better than one. I rather sense that Dr Hallström would have valued the opportunity to discuss the Appellant's case with a colleague. If two experts are to be instructed, there is much to be said for a joint examination.[63]These are issues that would have to be addressed at any preliminary hearing. It may be, of course, that consideration was given to matters such as these in this case, but I have not been told about them if it was.[64]I am grateful to Mr Mobbs and Mr Watkins for their clear and succinct submissions.

Cited in 4 later judgments