Turner v Government of the USA [2012] EWHC 2426 (Admin)

[2012] EWHC 2426 (Admin)Case No CO/6556/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/08/2012
Before
LORD JUSTICE AIKENSMR JUSTICE GLOBE
Between
Richen TurnerAppellantGovernment of the USARespondent
Mr Ben Lloyd (instructed by Lawrence & Co) for AppellantMr Peter Caldwell (instructed by CPS Extradition Unit) for RespondentHearing Hearing dates: 12 th January; 4 th, 17 th, 26 th, and 30 th July 2012
Judgment

The Background to the appeal

[1]Richen Turner is a UK citizen aged 42. She is a Requested Person by virtue of a US Government extradition request for trial in respect of a charge of causing death by dangerous driving while under the influence of drink or drugs following a fatal accident in Florida on 9 October 2005. A car being driven by Ms Turner collided with a car driven by the deceased, Mr Peter Cambra, at a cross-roads controlled by traffic lights. The allegation is that Ms Turner went through red lights and so caused the death of Mr Cambra, who was not wearing a seat-belt at the time.[2]Ms Turner was arrested in the UK on 8 November 2010 following a US extradition request. Ms Turner challenged the request. The USA is a Category 2 territory so Part 2 of the Extradition Act 2003 (the Act) applies. Ms Turner argued before District Judge Purdy that her case should not be sent to the Secretary of State because her extradition should be barred through passage of time (section 82 of the Act) or because of her ill-health.[3]There was a hearing before Judge Purdy on 12 April 2011 at which the appellant gave evidence and was cross-examined. Judge Purdy reserved his judgment, which was given on 5 May 2011. He rejected the appellant’s arguments and sent her case to the Secretary of State pursuant to section 87(3) of the Act. On 28 June 2011 the Secretary of State made an order for Ms Turner’s extradition.

The basis of the appeal

[4]Ms Turner now appeals the decision of Judge Purdy pursuant to section 103(1) of the Act. An appeal under section 103 can be brought on a question of law or fact: section 103(4). The court’s powers on an appeal under section 103 of the Act are set out in section 104. A court may only allow an appeal if either the conditions in section 104(3) or (4) are satisfied. Under section 104(4): “(4). The conditions are that—(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;(b) the issue or evidence would have resulted in the judge deciding a question before him at the extradition hearing differently;(c) if he had decided the question in that way, he would have been required to order the person’s discharge”.[5]The sole ground advanced as the basis of the appeal was and remains one that was not before the District Judge in its current evidential form. It is that there is a substantial risk that Ms Turner would successfully commit suicide if her extradition were to be ordered. Therefore, it is said, her extradition should be barred by reason of her ill-health such that it would be oppressive to extradite her within the terms of section 91(2) of the Act. Accordingly, pursuant to section 91(3), this court should order her discharge.[6]Section 91 of the Act provides: 8. “Physical or mental condition (1). This section applies if at any time in the extradition hearing it appears to the judge that the condition in subsection (2) is satisfied. (2) The condition is that the physical or mental condition of the person 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”. (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”. C. The history of the appeal hearings[7]This appeal first came on before a court consisting of me and Maddison J on 13 January 2012. At that time the evidence relied on by Ms Turner in support of her section 91 defence was a report of a consultant forensic psychiatrist, Dr Gwilym Hayes, dated 28 December 2011. That report was not, therefore, before the District Judge. It was submitted on behalf of Ms Turner by Mr Ben Lloyd at that hearing that this report constituted evidence that was not available before the District Judge at the extradition hearing and was now available and so could be considered by this court pursuant to section 104(4)(a) of the Act, with the consequence that, if this report had been before the District Judge, he would have decided the question before him, i.e. whether to send Ms Turner’s case to the Secretary of State, differently: see section 104(4)(b) of the Act.[8]In the admirably clear original Outline Argument in support of the appeal submitted by Mr Ben Lloyd for the appellant, he summarised the opinion of Dr Hayes, which is given at paragraph 14 of his report of 28 December 2011. I regard that summary as accurate and so I set it out now: i) The Appellant is suffering from a recognised psychiatric condition. She has a recurrent depressive illness. ii) There are some post-trauma symptoms although she does not satisfy the diagnostic criteria for PTSD as such. iii) There is a suggestion of pre-existing vulnerability. Her depressive illness was precipitated by her involvement in the accident coupled with a fear of the consequences of her extradition to the United States. iv) The Appellant is at a continuing risk of committing suicide. There is a previous history of deliberate self-harm. v) There is a high risk of suicide. vi) There is a causative link between the Appellant’s worsening psychiatric condition and the extradition proceedings. vii) Extradition would be likely to worsen the Appellant’s depressive illness and heighten the suicide risk. viii) There is a significant and substantial risk that the Appellant would successfully commit suicide. ix) The Appellant is currently in receipt of antidepressant medication and psychotherapy. Previous therapeutic interventions have been of assistance in improving her condition somewhat although from her account she has not returned to pre-accident functioning. Therapy would be reasonably predicted to have an ongoing positive effect upon her depressive illness. x) The threat of extradition is aggravating her condition and as long as the request remains active then her condition will be liable to deteriorate.[9]I should also note that in paragraph 12.5 of his report, Dr Hayes states that the appellant had told him that if she was extradited she would definitely kill herself in the 10 days that would elapse between the order being made and the extradition being carried out.[10]At the hearing on 13 January this year, the court took the view that it needed more assistance on the issues of what steps could be taken to minimise the risk of suicide by the appellant both in the UK and the USA. We made an order that further evidence on these issues be filed.[11]Subsequently, the appellant filed two further reports of Dr Hayes, dated 22 February and 25 April 2012. The respondent filed a report by Dr Ian Cummings, consultant Forensic Psychiatrist, dated 14 March 2012, on the steps that might be taken to minimise suicide risks in the UK, together with a statement from Jenny Rees, the Head of Safer Custody Casework in the Offender Safety, Rights and Responsibilities Group in the National Offender Management Service (“NOMS”) within the Ministry of Justice. The respondent also filed an affidavit of Lieutenant George Rimel of the Compliance Unit of the Broward Sheriff’s Office, Department of Detention and Community Control, Florida, sworn on 7 February 2012 and an affidavit of Dean Aufderheide MA PhD, the Director of Mental Health Services of the Florida Department of Corrections. Those affidavits deal with the procedure and facilities available for dealing with suicide risk detainees in Florida, where Ms Turner would be detained and tried if extradited.[12]At the renewed hearing on 4 July (before Globe J and me), Mr Lloyd submitted that the original and further evidence of Dr Hayes supported a conclusion that there was a real and significant risk of suicide by Ms Turner. He further submitted that it was not demonstrated that either the UK nor USA authorities could take, or had properly outlined, steps that would be sufficient to address this suicide risk. Accordingly, he submitted that Ms Turner’s mental condition was such that it would be oppressive for her to be extradited.[13]For the government of the USA, Mr Caldwell submitted that, on the evidence put forward in Dr Hayes’ three reports, it could not be said that the appellant had a general disposition to commit suicide, but Mr Caldwell accepted that, if the appeal were dismissed, there would be a danger period during the time after the dismissal of her appeal and her removal to the USA. He submitted that the risk of suicide by Ms Turner was not so great that it would be oppressive to order her extradition, or even if there was a sufficient risk, it could be coped with by authorities in both the UK and the USA so that it would not be oppressive to extradite her.[14]At the hearing on 4 July there was a discussion on about how the court should deliver its judgment, bearing in mind the possibility that it might dismiss the appeal and the fact that it was common ground that there could be a “danger period” between the dismissal of the appeal and the appellant’s removal to the USA. The court emphasised that it was up to the respondent to decide how to deal with the practicalities, eg. by making an application to the Magistrates’ Court to revoke the appellant’s bail in advance of judgment being given. The court undertook to inform counsel within 24 hours of the hearing of the date when judgment would be handed down. We also agreed that we would adopt the slightly unusual procedure of giving counsel a draft judgment only 30 minutes in advance of the official hand down, so that if the respondent had made an application to revoke the appellant’s bail and if that application had been granted, then the appellant would already be in custody at the moment the judgment was actually handed down. However, we emphasised to counsel that we had not made up our minds about the appeal and we wished to take time to consider the matter.[15]Subsequently, we announced that judgment would be handed down at 2pm on 12 July and that counsel would be given a draft at 1.30 pm that day. On 9 July 2012 the respondent’s lawyers wrote to Westminster Magistrates Court to request that the case be listed for a reconsideration of the appellant’s bail at 10 am on 12 July. A copy of that letter was sent to the appellant’s solicitors.[16]At some time on 10 July 2012 the appellant, who was then at her mother’s home, took an overdose of Zopiclone tablets. The precise number may be in dispute but we think it does not matter. Zopiclone is a hypnotic which is used for the treatment of insomnia and is for short term use only; normally for up to 4 weeks. At some stage before the appellant took the Zopiclone tablets she had also taken six temazepam tablets. Temazepam is also a sleeping tablet. The appellant’s mother (who was unaware that her daughter either had any Zopiclone tablets or that she had taken an overdose) noticed that the appellant was becoming very drowsy and called an ambulance.[17]The appellant was admitted to the Accident & Emergency Department of Sheffield Hospital. She had a Glasgow Coma Scale (GCS) reading of 7/15 on admission. (A brain injury resulting in a GCS reading of less than 8/15 is classed as “severe”). The appellant was treated and was given a psychiatric assessment to see whether she should be subject to further psychiatric treatment in hospital or should be accepted for Home Treatment. We have seen the report prepared by Ms Helen Finner dated 17 July 2012.[18]The psychiatric assessment noted the following matters of importance:(1) there was no evidence of psychosis or of thought disorder.(2) Suicidal thought existed and various alternative methods had been researched and considered.(3) There were some features of a post traumatic disorder, such as derealisation, depersonalisation, excessive guilt about the accident in Florida, poor memory of the 6 months following the accident and daily reliving of it.(4) There were no physical symptoms such as anxiety.(5) The appellant was found to be “potentially of a high risk of suicide”.(6) However, having discussed the options with the appellant and her family, it was decided that she should be subject to Home Treatment for further assessment of her mental health and risk.[19]The respondent’s lawyers were informed at 1.15 pm on 11 July of the appellant’s suicide attempt. On the following morning this court decided that, in the circumstances, we should not hand down the judgments that had been prepared. On the same morning the Magistrates Court directed that the application in respect of the appellant’s bail should await notification by this court of the new date for judgment. We further directed that if either party wished to adduce further evidence or to make short further written submissions they must do so by 18 July and we would then decide on the further steps to be taken on the appeal.[20]Subsequently the appellant served a further report by Dr Hayes and the Assessment referred to above, together with short submissions arguing that the appeal must now be allowed. The respondent also served further submissions arguing that the appeal should be dismissed.[21]Dr Hayes’ further report, dated 17 July 2012, stated that he had had a further interview with the appellant that day. He noted that the appellant told him that the decision to take an overdose was precipitated by the fear of being taken into custody and “her right to exercise her choice to end her own life being taken away from her”: see para 3.2. The appellant informed Dr Hayes (for the first time) that she had been buying large quantities of Zopiclone through the internet and had taken four tablets three times a day for some months. No one else knew that the appellant had the drug. The appellant told Dr Hayes that there had been no fundamental change in her mental state since he had last examined her on 10 May 2012. He said that the “dramatic behavioural changes only appearing when she was about to have her bail revoked”: para 4.3. Dr Hayes also said that the appellant described her feelings as “not so much wanting to be dead but ‘not wanting to be here’. Effectively if the only choice is extradition then she does not want to be alive”: para 5.6.[22]Dr Hayes had seen the assessment by the psychiatric liaison team and he noted some comments of the appellant about factual matters in the assessment which were said not to be entirely accurate. Dr Hayes’ opinion, set out at para 8 of his report is as follows:(1) the reason for the appellant taking the overdose was the “stress of the case”.(2) On the evidence (particularly the recorded GCS reading of 7/15) the overdose was substantial.(3) When a person takes an overdose the important assessment is of what the patient thought the likely outcome would be rather than the actual risk involved. Dr Hayes’ assessment was that “this overdose represents a serious attempt at [the appellant] taking her own life and further elevates the already elevated risk of her successfully completing suicide in the future”.[23]The appellant sought a further opportunity to make oral submissions. We agreed to this course and we heard the submissions on Thursday 26 July. We announced that judgment would be handed down on 30 July, using the same procedure as had been previously suggested.[24]On 28 July 2012 the appellant contacted her Home Treatment team overseeing her care in the community and she was visited at home by a nurse and a doctor. This had been triggered by the news, given to her by her solicitors on 26 July, that the Crown Prosecution Service had made a further application for her bail to be revoked at Westminster Magistrates’ Court on 30 July 2012. That news led the appellant to become more distressed, so that ultimately she decided to contact the team. They made the decision to admit the appellant to hospital and she was admitted to the Burbage Ward of the Michael Carlisle Centre (a psychiatric facility) that afternoon. She has remained at this hospital as a voluntary patient. Whilst there she has been treated with Lorazepam (a tranquiliser and sedative) and Temazepam at night and also Citalopram (an antidepressant). She has been seen regularly by her consultant on the ward and has been supported by nurses and support workers. Initially she was on 10 minute checks but is now on two hourly checks during the day and half hourly checks in the night.[25]The court heard oral submissions from the parties on 30 July 2012. We decided that, in the circumstances, it would not deliver judgment that day. We asked for a report on the condition of the appellant. On 31 July the court received from the appellant’s solicitors a letter from Dr Allen, a locum consultant psychiatrist at the Michael Carlisle Centre. This explained briefly the condition of the appellant and confirmed that she was a voluntary patient at the Centre. The court made an order that if the appellant wished to rely on any further report of Dr Hayes then that must be filed by 13 August and judgment would be given on 28 August 2012.[26]Dr Hayes interviewed the appellant at the Centre on 6 August. He produced a further report dated 8 August 2012. We are very grateful to him for the care and exemplary efficiency with which he has undertaken all his tasks for the court in this case. His reports have been very helpful.[27]The solicitors for the appellant posed a number of questions for Dr Hayes to answer in his latest report. In summary his latest report states: i) subjectively, the appellant’s general presentation has deteriorated somewhat since 17 July (when Dr Hayes last saw her). Her mood remains depressed. She described her suicidal ideation as “up and down”. She remained adamant in her assertions that if an extradition order was made she would “find some way of ‘ending it’”. ii) Those caring for the appellant confirmed that she was considered as posing a significant risk of undertaking a “serious act of self-harm”. The appellant informed him that she had been told that if she sought her own discharge from the Centre or left the ward without authority, then she could well be detained under the Mental Health Act. iii) The appellant continued to satisfy the criteria for a depressive illness. It remained a psychiatric condition. She remained a “high risk of suicide and the risk is real and continuing”. This risk would increase if extradition to the USA were ordered. A remand into custody in the UK would be likely to increase the appellant’s urge and intent to commit suicide, although, in the short term, a custodial setting may be able to manage the suicide risk through the removal of the opportunity for her seriously to harm herself. iv) The appellant currently required in patient care and was not fit enough to travel from Sheffield to a London Court because the stress of attending court would greatly aggravate her condition rendering it difficult safely to convey her to a court setting. v) A remand in custody in the UK would worsen the appellant’s mental condition. Her needs would be better met in a hospital setting at present (as opposed to being in custody).

The law

[28]There have been a number of cases in which the courts have considered what has to be established under section 91 of the Act (or the equivalent section in respect of an application for surrender under Part 1 of the Act, which is section 25) in order that a court may be satisfied that it would be unjust or oppressive to return a person to the state requesting extradition, because of the risk of suicide if the order to return were made. The relevant cases, which were recently examined with care by Bean J in Marius Wrobel v Poland [2011] EWHC 374 at [17] establish the following propositions:(1) the court has to form an overall judgment on the facts of the particular case: United States v Tollman [2008] 3 All ER 150 at [50] per Moses LJ.(2) A high threshold has to be reached in order to satisfy the court that a requested person’s physical or mental condition is such that it would be unjust or oppressive to extradite him: Howes v HM’s Advocate [2009] SCL 341 and the cases there cited by Lord Reed in a judgment of the Inner House.(3) The court must assess the mental condition of the person threatened with extradition and determine if it is linked to a risk of a suicide attempt if the extradition order were to be made. There has to be a “substantial risk that [the appellant] will commit suicide”. The question is whether, on the evidence the risk of the appellant succeeding in committing suicide, whatever steps are taken is sufficiently great to result in a finding of oppression: see Jansons v Latvia [2009] EWHC 1845 at [24] and [29].(4) The mental condition of the person must be such that it removes his capacity to resist the impulse to commit suicide, otherwise it will not be his mental condition but his own voluntary act which puts him at risk of dying and if that is the case there is no oppression in ordering extradition: Rot v District Court of Lubin, Poland [2010] EWHC 1820 at [13] per Mitting J.(5) On the evidence, is the risk that the person will succeed in committing suicide, whatever steps are taken, sufficiently great to result in a finding of oppression: ibid.(6) Are there appropriate arrangements in place in the prison system of the country to which extradition is sought so that those authorities can cope properly with the person’s mental condition and the risk of suicide: ibid at [26].(7) There is a public interest in giving effect to treaty obligations and this is an important factor to have in mind: Norris v Government of the USA (No 2) [2010] 2 AC 487.[29]Logically the first question that arises on this appeal is whether all the evidence that is now before the court but was not before the District Judge should be admitted. As I understand it, Mr Caldwell, counsel for the US government, does not oppose the admission of this evidence as such, but he made two submissions. First, he submitted that even if it had been before the District Judge his decision would not have been different, so that the condition for allowing the appeal set out in section 104(4) is not satisfied. Secondly, and this may amount to putting the same argument another way, he submitted that the evidence is not sufficient to satisfy the test in section 91 of the Act, as interpreted by the case law which I have attempted to summarise above.[30]Effectively, therefore, there is actually only one question to be considered. Is this evidence on the suicide risk of Ms Turner such that an order to extradite her would be oppressive within section 91, so that, if the District Judge had had the evidence before him as we have, he would, necessarily have decided the case differently.[31]In the case of Fenyvesi v Hungarian Judicial Authorities [2009] EWHC 231 (Admin) this court considered the question of the admission of new evidence on appeal in a Category 1 extradition case, governed by section 29(4) in Part 1 of the Act. The wording of section 29(4) is materially the same as that of section 104(4). Fenyvesi was a case where the judicial authority sought to adduce new evidence on appeal, but the principles must be the same when the person sought for extradition wishes to adduce new evidence.[32]Sir Anthony May said, at paras 32 and 35 as follows:
“In our judgment, evidence which was “not available at the extradition hearing” means evidence which either did not exist at the time of the extradition hearing, or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained. If it was at the party’s disposal or could have been obtained, it was available. It may on occasions be material to consider whether or when the party knew the case he had to meet. But a party taken by surprise is able to ask for an adjournment. In addition, the court needs to decide that, if the evidence had been adduced, the result would have been different resulting in the person’s discharge…” …. “Even for defendants, the court will not readily admit fresh evidence which they should have adduced before the district judge and which is tendered to try to repair holes which should have been plugged before the district judge, simply because it has a Human Rights label attached to it. The threshold remains high. The court must still be satisfied that the evidence would have resulted in the judge deciding the relevant question differently, so that he would not have ordered the defendant’s discharge. In short, the fresh evidence must be decisive.”
[33]It seems to me, therefore, that before new evidence can be adduced on appeal the court has to ask a threshold question: would that evidence have resulted in the judge deciding the case differently so that, in this case, he would have ordered the discharge of Ms Turner. Or as Sir Anthony put it concisely at [35] of the Fenyvesi case: is this fresh evidence “decisive”?

Discussion

[34]In the light of these principles I must therefore examine first the original report of Dr Hayes. I am satisfied that the original report of Dr Hayes is both independent and convincing, in the sense that his conclusions on the appellant’s condition is reliable and is to be accepted. He was not cross-examined on it, but there is no challenge to its independence and its thoroughness. Dr Cummings does not challenge Dr Hayes’ conclusions on the appellant’s condition as set out in his first report. For my part I am prepared to accept the opinions expressed in it as both independent and convincing in the sense I have given it above.[35]Dr Hayes interviewed Richen Turner again (both alone and in the company of her mother) on 10 April 2012 before he wrote his third report. Dr Hayes reported that Ms Turner said that she was still on anti-depressant medication and sleeping tablets; and that she has counselling every two weeks or so. (A letter from the counsellor, Liz Soloman, is before the court). Dr Hayes said that Ms Turner appeared more drawn and gaunt than in previous meetings. She commented that she felt physically less well and had lost weight and some hair. Her periods were irregular. She had low energy levels and was inactive and felt generally numb to emotions.[36]Dr Hayes’ overall conclusion in his third report is that if the appeal were dismissed then Ms Turner would be “at high risk of completed suicide” and that various measures, as set out by Dr Cumming in his report, would need to be implemented. Dr Hayes considered that the risk would not decrease once Ms Turner had arrived in the USA; but might increase. Again, I accept that evidence as independent and convincing in the sense I have described. However, this report also demonstrates that Dr Hayes thinks the risk can be reduced by the implementation of appropriate measures.[37]I have set out above my summary of Dr Hayes’ conclusions in his report of 8 August 2012.[38]I am quite satisfied that Florida has the proper facilities to cope both with Ms Turner’s mental illness and, so far as anyone can, the risk of her attempting to commit suicide if extradited. I think that this conclusion is entirely borne out by the evidence from Lieutenant Rimel and Dr Aufderheide to which I have already referred.[39]So far as the UK is concerned, Dr Cummings’ report and the evidence of Ms Lee indicates that measures are in place to deal with the risk of an attempted suicide during a period between an appeal being dismissed and the implementation of an extradition order, assuming, for the moment, that the appeal were to be dismissed, particularly if the appellant were to be held in custody during that time.[40]I take account of the treaty obligations of the UK to the USA, as to other Category 2 countries where there bilateral treaties.[41]So, the key question is: do the reports of Dr Hayes, taken as a whole, amount to decisive evidence, such that the District Judge would have concluded, if he had had them before him, that the mental health of Ms Turner was such that it would be oppressive to extradite her. It is a finely balanced case, in my view. I have considered the following factors.[42]First, there were, before the present attempt on 10 July 2012, only two previous episodes of actual self-harm. The first occurred some 18 years ago when the object of the attempt was to make the appellant’s mother feel bad. The second was in the context of the appellant’s deteriorating marriage. Dr Hayes accepted that neither episode was a concerted effort to end the appellant’s life. There have been no other recent attempts before that on 10 July this year, even when the Secretary of State ordered Ms Turner’s extradition. The appellant did not make any attempts towards suicide in the months from May 2011 until 10 July, that is between the decision of DJ Purdy and the impending judgment on this appeal. During that time she had been seeing her GP, Dr Tabani, regularly and also her counsellor, Liz Soloman. Neither of them reported any attempts at suicide or anything approaching that. The attempt made by Ms Turner on 10 July was precipitated by the application to revoke her bail.[43]Secondly, the attempt at suicide on 10 July was, I have to say, a carefully controlled one. It was made after an apparently rational review of choices: whether it was better to commit suicide or be in a position where bail was revoked so that Ms Turner would not be able to decide for herself whether to exercise her choice to end her own life, or would at least be more constrained in doing so: see Dr Hayes’ report of 17 July 2012. Moreover, the attempt was made when Ms Turner was at her mother’s house, with her mother and sister in the house so that they could easily find her and where Ms Turner’s mother was attempting to “keep an eye on her”: see the ACP Assessment Form. Ms Turner’s mother soon realised that something had happened when her daughter started to get drowsy and so she called an ambulance. This attempt is in stark contrast to that of the appellant in the case of Jansons v Latvia [2009] EWHC 1845 in which Jansons hanged himself in his cell in Wormwood Scrubs and was only just cut down in time to save him from either dying or suffering serious brain damage. I also think it is of great significance in this case that Ms Turner was permitted to return home under a Home Treatment plan. Further, it was Ms Turner herself who alerted the Home Treatment team on 28 July, that is two days after she had learnt that there was to be a further application by the respondent to revoke her bail. Ms Turner did not, on that occasion, make any attempt at suicide. Until Ms Turner was admitted to the Michael Carlisle Centre on 28 July, no one had suggested that she might require to be detained under the Mental Health Act or that her mental condition required in-patient treatment of any sort. That has now changed to the extent that Dr Hayes’ latest report says that Ms Turner presently requires in –patient hospital care and, it appears, that she has told Dr Hayes that she might be “sectioned” under the Mental Health Act if she attempted to discharge herself from the Centre. There is no independent confirmation of that fact.[44]Thirdly, Dr Hayes has found no psychotic symptoms. He has concluded that the cause of the appellant’s anxiety is closely associated with the fatal road accident in which she was involved. As I read Dr Hayes’ reports, although he regards the risk of Ms Turner attempting to commit suicide as substantial or high, he does not say that this risk is one that is brought about by her mental condition or her depressive illness; rather it is brought about by the fact that she might be extradited. Although Ms Turner’s mental condition evidences clinical depression and some features of post traumatic disorder, she appears to remain rational. Any decision to make an attempt to take her life will, on the evidence, be taken because Ms Turner has decided to make a choice to do so. As Ms Turner told Dr Hayes when he interviewed her on 17 July, she would make a choice between extradition and wanting to be alive: see para 5.6 of that report. That position has not changed since Ms Turner’s admission to the Michael Carlisle Centre.[45]Fourthly, there is no convincing evidence that the consequence of extradition would lead to physical harm to Ms Turner. I accept that Dr Hayes has said that extradition would lead to a deterioration in her mental state and would heighten the suicide risk; but that is not, as I understand it, as a result of anything in particular other than the fact that the extradition would lead to a trial and possible conviction of the offence alleged. In other words, this deterioration would be as a result of the judicial process itself. This again is in stark contrast to the position of Mr Jansons in the Jansons case, where there was cogent evidence that Mr Jansons genuinely believed that he would face assaults, attempts to kill him and attempts to rape him if he were extradited to Latvia and that those fears were, in the view of the expert psychiatrist, likely to exacerbate his PSTD. It was also the psychiatrist’s unchallenged evidence in that case that if Mr Jansons were returned to Latvia he would actually kill himself.[46]Fifthly, Dr Hayes accepted (in his second report) that there are steps that could be taken between any dismissal of the appeal and the implementation of the extradition order to reduce the risk of suicide or attempted suicide. These include placing the appellant under 24 hour constant observation, removal of possible ligatures and monitoring medication. Moreover, if the appellant were in suitably supervised custody, then the chance of a completed suicide would decrease even if “suicidality” would increase.[47]Sixthly, I think that there is considerable force in the observations of Dr Cummings, who is very experienced in dealing with vulnerable patients within the criminal justice system. He makes comments in relation to those awaiting trial, a situation similar to the appellant’s present position, though not exactly the same because there is not there the element of being sent for trial in a different country. Dr Cumming says that where prisoners are in custody awaiting trial or sentence they often say that if convicted or if they get a certain sentence then they will end their life. As Dr Cummings puts it:
“This is not always inevitable and reasonably often, when such a conviction or sentence occurs the decision is different”
. In his view the opinion that is expressed is a reflection of the stress that surrounds uncertainty and the expectation in the approach to the process itself, but once there is the certainty of the decision, the risk can diminish or even resolve. For that reason, continuous risk assessment and management are needed. However, these can, on the evidence, be provided both in the UK and in the USA, in particular if Ms Turner is held in custody.[48]Seventhly, the principal fear of the appellant, that she may not get a fair trial in Florida, is not based on any evidence and has no rational basis. The fear is probably based on uncertainty. There is no independent evidence to support that anxiety, which, in my judgment, has to be characterised as irrational. In this regard I note that it is not suggested that Ms Turner’s mental condition is such that she would, in her present state, be regarded as “unfit to plead” under English law.

Conclusion

[49]Overall, I have to remind myself that it is for Ms Turner to demonstrate that the evidence that is before this court is “decisive” such that if it had been before the District Judge he would have concluded that she had demonstrated that her mental condition was such that it would be oppressive to extradite her to the USA. The threshold is a high one. I have concluded, on balance, that I am not satisfied that it has been reached in this case. I accept that Ms Turner’s mental condition is undoubtedly delicate and difficult and that it has deteriorated over the past month. I accept that her mental condition may well deteriorate further if she is extradited. I also accept that there is a substantial danger that Ms Turner may attempt suicide again if she is extradited. However, ultimately, Ms Turner’s current delicate mental state has as its cause the fact that she was involved in a fatal road accident in which she received little or no physical injury and that her extradition is sought to stand trial on charges which result from that accident. It seems to me, at least on the evidence of the present case, that it cannot be said that Ms Turner’s current mental condition which flows from the consequences of the accident and the request for her extradition, even if that includes a substantial risk of further attempts at suicide by her, will give rise to the extradition being either unjust or oppressive by reason of that mental condition. In that sense, all the evidence that is now before this court is not “decisive”.[50]Under section 104(1) of the Act, this court has three choices on an appeal under section 103 of the Act. It can allow the appeal, or direct that the judge who heard the extradition hearing should decide again the question or questions he decided at that hearing, or dismiss the appeal. If the appeal is allowed the court has to discharge the appellant. For the reasons I have given, in my judgment this appeal has to be dismissed.[51]I agree and add the following.[52]The essence of the appeal is whether, pursuant to Section 91 of the Act, the mental condition of the appellant is such that it would be oppressive to extradite her.[53]In order to allow the appeal I need to be satisfied, pursuant to Section 104 of the Act, that, upon a consideration of all of the evidence, including material not available to the District Judge and subsequent to his decision on 5th May 2011, he would have decided the Section 91 issue before him differently.[54]When the District Judge made his decision on 5th May 2011 there was only limited medical evidence before him. The appellant was fit enough to give evidence. She stated that her health had deteriorated and she was on anti-depressants and had been signed off work due to anxiety and depression. There was a letter from her general practitioner dated 11th April 2011 confirming those facts. There was no reference to any issue of suicide in the District Judge’s summary of the evidence before him.[55]The issue of potential suicide has arisen since the May 2011 decision, particularly in the psychiatric reports from Dr Gwilym Hayes and Dr Ian Cummings. The conclusion from the reports before us when we heard the appeal on 4th July 2012 was that there was a high risk of the appellant committing suicide if the appeal wasn't allowed. The appellant had also stated that she would definitely kill herself in the ten days that would elapse between the extradition order being made and the extradition being carried out.[56]In the intervening period between hearing the appeal on 4th July and the proposed date of handing down judgment on 12th July the appellant took an overdose of Zopiclone and Temazepam tablets on 10th July 2012. Dr Hayes’ opinion in his report of 17th July 2012 is that “this overdose represents a serious attempt at taking her own life and further elevates the already elevated risk of her successfully completing suicide in the future.”[57]Following further submissions on 26th July, the decision to hand down judgment on 30th July and a further application by the Crown Prosecution Service for the appellant’s bail to be revoked, the appellant contacted the Home Treatment Team and she was admitted to the Michael Carlisle Centre in Sheffield. There she remains as a voluntary patient.[58]Dr Hayes visited the appellant at the Michael Carlisle Centre on 6th August. In his further report of 8th August, he confirms that she is a voluntary patient although she told him that she had been informed that she could well be detained under the Mental Health Act if she sought to take her own discharge or left the Ward without authority. That fact has not been independently confirmed. There is no evidence to suggest that it has been necessary so far to take any steps to change her voluntary status. She remains depressed, under medication and a high risk of suicide, which will increase if extradition is ordered. A remand into custody is likely to increase her urge and intent to commit suicide. Dr Hayes repeats earlier observations that it is difficult to prevent a sufficiently determined person from killing themselves. However, he states that, in the short term, a custodial setting may be able to manage the suicide risk.[59]The question arises as to whether all of the evidence now available is such that the District Judge would have considered it to be oppressive to extradite the appellant.[60]I agree with the principles from the relevant cases enumerated in paragraph 28 of the judgment by Aikens LJ. A high threshold has to be reached to satisfy the court that a person’s mental condition is such that it would be oppressive to make an order for extradition. The risk of suicide could make it oppressive. As to that issue, the relationship between the mental condition of the person to be extradited and the impulse to commit suicide needs to be considered. In paragraphs 24, 26 and 29 of Jansons v Latvia [2009] EWHC 1845 the President of the Queen’s Bench Division referred to the link between the mental condition and the risk of suicide. In paragraph 13 of Rot v District Court of Lubin, Poland [2010] EWHC 1820, Mitting J put it as follows:
“Until and unless the reasoning in Jansons is disproved, the risk of suicide must be accepted to be a relevant risk for the purpose of section 25. The question must therefore be addressed and answered in such a case: would the mental condition of the person to be extradited make it oppressive to extradite him? Logically, the answer to that question in a suicide risk case must be no unless the mental condition of the person is such as to remove his capacity to resist the impulse to commit suicide, otherwise it will not be his mental condition but his own voluntary act which puts him at risk of dying, and therefore may make it oppressive to extradite him.”
[61]The appellant’s history now includes three previous incidents of self harm in 1992, in 2004 and on 10th July, all three of which were overdoses.[62]The first followed a drunken argument with her mother which the appellant accepts was a misguided attempt to make her mother feel bad and was not a serious attempt.[63]The second was at a time when she had matrimonial problems and followed the death of her father. In Dr Hayes’ report of 28th December 2011, the opinion was expressed that “she does not appear to ever have made a concerted effort to cause her own death”.[64]Prior to the third on 10th July 2012, no further incidents of self-harm had occurred. In particular, there were no incidents following the District Judge’s extradition order in May 2011, the Secretary of State’s Order for the appellant’s extradition on 28th June 2011, this court’s decision to adjourn the hearing of the appeal in January 2012, nor at any other time prior to 10th July. This was all notwithstanding the medical evidence about the appellant’s depressive illness and post traumatic symptoms.[65]On 10th July 2012, the overdose was taken at her mother’s home in circumstances where, as happened, her mother was able to observe the effects of what she had done with the likelihood that emergency assistance could be summonsed.[66]On 12th July, Helen Finner, of the psychiatric liaison team at the hospital, spoke to the appellant and recorded that “she clearly states that she does not want to die (but) she cannot fathom the prospects of her potentially being extradited to the States”. The appellant was assessed as a high risk of suicide and there were some features of a post traumatic disorder. However, there were no physical symptoms of post traumatic disorder, such as anxiety. There was no evidence of psychotic thought disorder. There was no indication of poor comprehension, recall or understanding. She was considered medically fit for discharge home where it was noted that she had a very supportive family.[67]In Dr Hayes’ report of 17th July, it was noted that the appellant “described her feelings as not so much wanting to be dead but ‘not wanting to be here’. Effectively, if the only choice is extradition, then she does not want to be alive” and that “she accepted that she did not want to be admitted to the psychiatric hospital and, as such, was taken on to the home treatment programme”.[68]In Dr Hayes’ report of 8th August, he states that the appellant “remains adamant in her assertions that if an extradition is ordered she would find some way of “ending it””.[69]The indications from the totality of the medical evidence are that, notwithstanding the depressive illness, some post traumatic symptoms being suffered by the appellant, and her present admission to the Michael Carlisle Centre, she still remains rational and focussed on what she intends to do if the court orders her extradition. In the Respondent’s submissions of 17th August, it is contended that she is seeking “to put herself beyond the reach of the court”.[70]When she took the tablets on 10th July, she chose to take them. She knew what she was doing and why she was doing it. She appreciated that her bail might be revoked in advance of the possibility of her appeal being dismissed. She elected to take tablets rather than to submit to the order of the court. In doing so, Dr Hayes is of the opinion that it was a “serious attempt at ending her own life”. For the above reasons, there are arguments to the contrary. However, even if Dr Hayes is right and it was a genuine and serious attempt, in my judgment the attempt was the consequence of a rational choice to take the tablets to avoid extradition and it was not her mental condition that removed from her the capacity to resist the impulse to take the tablets.[71]When she was admitted to the Michael Carlisle Centre, it was following notification of an application by the Crown Prosecution Service to revoke her bail pending the handing down of the judgment. She wasn't driven to take any further steps to commit suicide. She has voluntarily remained at the Centre since the end of July without any further incident. Her stated intention to commit suicide in the future remains “adamant”, but in my judgment that remains a matter of choice and not because her mental condition is such as to remove her capacity to resist the impulse to commit suicide.[72]It is to be hoped that the appellant will not seek to carry out her present intentions to commit suicide. The evidence suggests that if the extradition process proceeds then appropriate risk management procedures can be put into place which should discourage further attempts. It is to be hoped that the appellant will not seek to defeat any procedures which are put in place.[73]For the above reasons, including the detailed analysis by Aikens LJ in his judgment, I am not satisfied that it has been established to the necessary high threshold that the mental condition of the appellant is such that it would be oppressive to extradite the appellant and that if the District Judge had had all of the present material before him that the decision would have been different.[74]Accordingly, I too would dismiss the appeal.

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