Parker v The Republic of Argentina [2013] EWHC 226 (Admin)

[2013] EWHC 226 (Admin)

Case No CO/938/2012

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 15/02/2013

Before

Lord Justice Laws

THE HONOURABLE MRS JUSTICE SWIFT DBE

Between

ANTHONY PARKERAppellant

THE REPUBLIC OF ARGENTINARespondent

Michael Bisgrove (instructed by Rustem Guardian Solicitors) for Appellant

Ben Brandon and Ally Wilkes (instructed by Crown Prosecution Service) for Respondent

Hearing Hearing dates: 22 January 2013

Judgment

[1]This is the judgment of the Court. The appellant, Anthony Parker, is a British citizen who was born in Italy. The respondent, the Republic of Argentina, has requested the extradition of the appellant under Part 2 of the Extradition Act 2003 (the 2003 Act). On 23 December 2011, Senior District Judge Riddle, sitting at the City of Westminster Magistrates’ Court, sent the case to the Secretary of State for a decision as to whether the appellant should be extradited. The appellant appeals against that decision pursuant to section 103 of the 2003 Act.

[2]The appellant is now seeking to rely at the hearing of his appeal on new evidence from an expert witness which was not before the Senior District Judge at the extradition hearing. At a Case Management Conference on 22 January 2013, we heard argument as to whether that expert evidence should be admitted. We decided that it should not and informed the parties of that fact. We indicated that we would set out our reasons in writing which we now do.

The background

[3]The circumstances giving rise to the extradition request occurred on the night of 3 December 2008, when an unattended suitcase containing five parcels of cocaine was found in the departure lounge at Ezeiza airport in Buenos Aires. A review of CCTV footage taken at the airport led the Argentinian authorities to suspect that the appellant had left the suitcase there some time before it was discovered and had then boarded a plane for Frankfurt. When he arrived at Frankfurt, he was searched but no drugs were found on him. He was released and returned to the UK. The Argentinian authorities want to question the appellant about the incident with a view to prosecution.

The history of the extradition proceedings

[4]The Court was greatly assisted by a very detailed Chronology produced by the respondent’s counsel. In summary, the main points are these.

[5]A request for the appellant’s extradition was first made on 28 July 2008 and was certified on 3 August 2009, but the Magistrates’ Court refused to issue a warrant. A further request was made on 10 May 2010 and certified on 24 August 2010. A domestic warrant was issued by the Magistrates’ Court on 1 November 2010 and the appellant was arrested on that warrant on 26 November 2010. Since then he has been on remand in HMP Wandsworth pending resolution of these proceedings.

[6]The initial hearing at the Magistrates’ Court took place on 26 November 2010. The appellant was represented by experienced solicitors. During the next 12 months, throughout which period the same solicitors continued to represent him, there were no less than 16 hearings in the case at which the appellant’s legal team identified a number of different challenges to extradition on which the appellant intended to rely. Those issues included: a) The effect of extradition on the appellant’s mental health; b) Possible retaliation by criminal gangs if he were to be extradited to Argentina; c) Whether the appellant had ever been formally “accused”; d) Whether there was sufficient evidence of identification to constitute a case to answer (the ‘prima facie case’ issue); e) Whether a valid warrant for the appellant’s arrest had been issued in accordance with section 78 of the 2003 Act; f) Whether, if the appellant were to be extradited, there might be a breach of his rights under

Article 3 of the European Convention on Human Rights

(ECHR) arising from the failure of the Argentinian authorities to provide him with sufficient protection against potential reprisals from criminals to whom he was known;

[7]The appellant’s solicitors initially obtained two expert Reports. The first Report, dated 23 January 2011, was from Dr Mark Tarn, a locum consultant in forensic psychiatry employed at the Lambeth Hospital and at HMP Brixton. Dr Tarn gave his opinion on the appellant’s mental state, together with the potential effects on the appellant if he were to be transferred to an Argentinian prison. Briefly summarised, he concluded that the appellant was suffering from recurrent depressive disorder and post-traumatic stress disorder (PTSD) with an associated panic disorder. Dr Tarn assessed the appellant’s disorders as being of moderate severity. As of January 2011, they were being controlled by antidepressant, antipsychotic and anxiolytic medications. Dr Tarn considered that there was a risk of deterioration as a result of continuing stress and anxiety caused by the extradition proceedings. If that risk were to materialise, more aggressive medication and, possibly, transfer to the prison hospital or a psychiatric unit would be necessary. He considered that the medication necessary to treat the appellant’s condition would be available in Argentina. Dr Tarn was also of the opinion that the appellant needed targeted psychological therapy for his PTSD. He doubted whether this would be available in Argentina although he pointed out that, even within the prison system in the UK, the availability of such treatment is at best patchy.

[8]The second expert Report obtained by the appellant’s solicitors was from an Argentinian lawyer and was intended to address the issue of whether the appellant had been validly “accused”. Since that Report was never disclosed and the issue was not pursued, it appears that the Report must have been unfavourable to the appellant.

[9]On 31 January 2011, the appellant’s solicitors informed the Magistrates’ Court that they were seeking funding from the Legal Services Commission (LSC) for a third expert Report from an expert on Argentinian prison conditions. The funding was granted in late February/early March 2011 and the expert, Dr Liminez (possibly Linares), reported in late May/early June 2011. Shortly after receipt of that Report, the appellant’s solicitors informed the respondent’s solicitors that the Report was “inadequate” and would not be relied upon. They indicated that they were seeking funding from the LSC to instruct an alternative expert on the topic.

[10]At a hearing on 7 June 2011, the appellant’s solicitors informed the Magistrates’ Court that the issues at the extradition hearing would be those identified at e) and f) of paragraph 6 of this judgment, together with a further issue, namely the impact of Argentinian prison conditions on the appellant’s physical and psychiatric condition. The reference to the appellant’s “physical condition” related to the fact that he suffers from diabetes. A letter had been obtained from Dr Peter Din, the appellant’s general practitioner, stating that the appellant had Type 2 diabetes with complications in the form of diabetic retinopathy and diabetic nephropathy. His diabetes had been difficult to control, in part because the appellant was often unable to attend or missed medical appointments.

[11]When the appellant’s Skeleton Argument was filed in late June 2011, only two challenges to extradition were identified. They were(i) the alleged absence of a valid warrant and

(ii) a contention pursuant to section 91 of the 2003 Act that the appellant’s physical or mental condition was such that, in the light of the prison conditions and the unavailability of medical treatment in Argentina, it would be unjust or oppressive to extradite him. In July 2011, the appellant’s solicitors gave formal notice to the respondent’s solicitors of the appellant’s intention to abandon his contention that there was a risk that his Article 3 rights might be breached if he was extradited. On 10 October 2011, however, they indicated that the appellant now wished to revive the Article 3 issue. This was never done.

[12]In early July 2011, the appellant’s solicitors informed the respondent’s solicitors that efforts were being made to find an alternative expert to report on Argentinian prison conditions but that, in the light of the costs being quoted by such experts, they had little hope of obtaining the necessary funding. In the event, no further expert evidence was obtained before the extradition hearing.

[13]That hearing was initially listed for 30 August 2011 but, shortly before then, it was vacated by agreement between the parties and re-listed for 20 October 2011. At a review hearing held on 12 October 2011, the appellant told the Magistrates’ Court that he had lost confidence in his legal team and wished to instruct other solicitors and counsel. The district judge conducting the review hearing refused to permit transfer of the appellant’s legal aid certificate and directed that the extradition hearing on 20 October 2011 should proceed.

[14]The extradition hearing started on 20 October 2011 before Senior District Judge Riddle. The same solicitors and counsel continued to act for the appellant. On that date, the Senior District Judge heard submissions from counsel on the first issue raised by the appellant, namely whether there had been a valid warrant. The hearing was then adjourned part heard to 30 November 2011.

[15]Some time after the hearing on 20 October 2011, the appellant made an application for his legal aid certificate to be transferred. That application was refused by Senior District Judge Riddle on paper. On 21 November 2011, the application was renewed before a different district judge who granted a transfer on the basis that the resumed hearing on 30 November must go ahead. Meanwhile, the appellant’s original solicitors had obtained an Addendum Report from Dr Tarn which indicated that there had been no demonstrable change in the appellant’s condition since he last reported. Dr Tarn reported that the appellant had told him that, if returned to Argentina, he would take his own life. Dr Tarn regarded the risk of suicide as ‘credible’ and advised that an appropriate risk assessment should be incorporated into any subsequent planning for the appellant.

[16]On 30 November 2011, the extradition hearing before Senior District Judge Riddle resumed, with the appellant represented by new solicitors and counsel. The appellant’s counsel, Mr Bisgrove applied for an adjournment on the grounds that(a) he and his solicitors had been instructed only recently;

(b) there was a need to obtain expert evidence about the appellant’s physical state of health;

(d) the appellant had suffered a recent bereavement. The application was opposed and Senior District Judge Riddle refused the adjournment.

[17]The hearing then proceeded. No live evidence was called. Various documents were placed before the Senior District Judge. In particular, the appellant relied on the Reports from Dr Tarn, Dr Din’s letter, his medical notes and international reports from Amnesty International, Human Rights Watch and the US State Department raising serious concerns about conditions in Argentinian prisons. The respondent relied on a sworn statement from two Argentinian witnesses who had analysed the CCTV footage; a number of still images from the CCTV footage; and a letter from the Head of the Psychiatric Division in Buenos Aires, which stated inter alia that, if extradited, the Healthcare Office had decided that the appellant would be accommodated (both pending trial and, if convicted, thereafter) in a penitentiary with healthcare facilities.

[18]In submissions to the Senior District Judge, Mr Bisgrove conceded that neither the appellant’s medical condition nor the information about conditions in Argentinian prisons would, taken on its own, be sufficient to constitute “oppression” within the meaning of section 91 of the 2003 Act. However, he argued that the combined effects of the lengthy pre-trial delays, the overcrowding and the generally substandard prison conditions (including the poor facilities for medical treatment) described in the international reports, coupled with the appellant’s physical and psychiatric problems and the inevitable isolation he would suffer if extradited, would render his extradition “oppressive”.

[19]Mr Bisgrove also sought to argue that there was a risk that extradition might interfere with the appellant’s rights under Articles 5 and 6 of the ECHR, in particular his right to trial within a reasonable time or to release pending trial (Article 5(3)), to a fair and public hearing within a reasonable time (Article 6(1)) and to liberty and security of the person (Article 5(1)). The Senior District Judge permitted Mr Bisgrove to supplement his oral submissions on this point by written submissions after the hearing, in view of his late instruction in the case. Mr Bisgrove argued that the international reports showed that the appellant was at risk of suffering a flagrant denial of his Article 5 and 6 rights.

The judgment

[20]In his written judgment dated 23 December 2011, Senior District Judge Riddle concluded that the warrant was valid and declared that he was satisfied that the documents before him disclosed a prima face case.

[21]The Senior District Judge reviewed the material before him relating to the physical and mental health of the appellant. He found that there was no evidence that the appellant had serious physical, psychiatric or psychological problems that would make prison either in the UK or Argentina inappropriate. He expressed confidence that, if necessary, the Argentinian authorities would arrange appropriate medical treatment for the appellant. He accepted that there was a risk (albeit not high) of the appellant committing suicide if he were returned to Argentina and of his physical and mental health deteriorating. He concluded that the risk amounted to a hardship but decided that it fell short of establishing “oppression” within the meaning of section 91 of the 2003 Act.

[22]Senior District Judge Riddle found that the evidence did not establish that the appellant would not have a right to apply for bail in Argentina, although he accepted that in practice bail was unlikely to be granted. He found that there was no substantial reason to believe that there would be an unacceptable delay in bringing any proceedings to trial. He observed that the threshold for establishing interference with Articles 5 and 6 is a high one. He found no evidence such as would establish either a flagrant breach, or a real possibility of a breach, of Article 5 or 6.

The appeal proceedings

[23]In December 2011, an appeal was lodged against Senior District Judge Riddle’s decision. In March 2012, the appellant’s representation order was extended to cover the costs of obtaining two further experts’ reports: one from an Argentinian expert dealing with the position relating to pre-trial bail and detention, and the other from a specialist in diabetes.

The progress of the appeal

[24]On 27 June 2012, the appellant served a Report from Dr Maria del Carmen Verdu, together with updated Grounds of Appeal and a Skeleton Argument.

Dr Verdu’s evidence

[25]Dr Verdu is a criminal lawyer who practises in Argentina and is a founding member of a human rights organisation which monitors incidents of violence committed by the Argentinian police force, prison guards and other security force members. In summary, Dr Verdu’s conclusions were that, if extradited, the appellant would inevitably be subjected to a prolonged period of pre-trial detention in very poor conditions and without adequate treatment for his diabetes. Her evidence was that the pre-trial process would take several years, during which time the appellant was highly unlikely to be granted bail.

Further evidence

[26]The appeal was listed for hearing on 19 October 2012. Before the hearing, the respondent successfully applied for an adjournment in order to take instructions from the Argentinian authorities on the matters raised in Dr Verdu’s Report. Subsequently, the appellant’s representation order was further extended to cover the costs of an updated psychiatric Report.

[27]On 10 January 2013, further evidence was received by the respondent from the Director of Health and a senior official in the General Directorate of the Correctional Regime in Buenos Aires, taking issue with the information about the Argentinian legal system and prison conditions contained in Dr Verdu’s Report.

The Case Management Conference

[28]The appeal was again listed for hearing before this Court on 22 January 2013. On 15 January 2013, the respondent applied for the hearing to be adjourned since, if Dr Verdu was to be called, the respondent wished her to be made available for cross-examination. The adjournment was granted and it was directed that the hearing should instead proceed by way of a Case Management Conference.

[29]At the Case Management Conference, the respondent argued that Dr Verdu’s evidence, which had not been before Senior District Judge Riddle, did not meet the requirements set out in section 104 of the 2003 Act.

The relevant law

[30]Section 104(2) of the 2003 Act provides that, where an appeal is brought pursuant to section 103: The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied. … (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. (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.

[31]Guidance on the correct approach to the exercise of the court’s powers under section 104(4)(a) and (b) was given in Szombathely City Court and others v Fenyvesi and another

[2009] 4 All ER 324

. In Fenyvesi, extradition had been refused by the district judge on the ground that, if the respondents were returned to Hungary, there was a real risk that they would suffer inhuman or degrading treatment at the hands of prison officials and a real risk that they would be denied a fair trial. The judicial authorities appealed and sought to persuade the court to allow them to adduce fresh evidence. In that case, the appeal against extradition was under section 28 of the 2003 Act. The provisions governing the court’s powers in relation to an appeal based on fresh evidence are identical to those applicable to an appeal under section 103.

[32]Giving the judgment of the court in Fenyvesi, Sir Anthony May, P, said:

“[32] 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 so 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. This is a strict test, consonant with the parliamentary intent and that of the Framework Decision, that extradition cases should be dealt with speedily and should not generally be held up by an attempt to introduce equivocal fresh evidence which was available to a diligent party at the extradition hearing. A party seeking to persuade the court that proposed evidence was not available should normally serve a witness statement explaining why it was not available. The Appellants did not do this in the present appeal.”

The parties’ submissions

[33]Mr Brandon, on behalf of the respondent, contends that neither of the conditions set out in section 104(4) of the 2003 Act is satisfied in this case. The extradition proceedings in the Magistrates’ Court were lengthy, extending as they did over a period of a year. That period had afforded ample opportunity for the appellant to obtain a Report from Dr Verdu or another individual with comparable expertise. Dr Verdu was available to be instructed throughout that period. Had the appellant’s solicitors exercised due diligence, the Report could have been obtained in time for the extradition hearing before the Senior District Judge. As it is, if the new evidence were to be admitted, there would have to be a complete re-hearing of the case. Mr Brandon submits that, in the circumstances, the Court should not permit this. He points out that the appellant has not followed the normal practice of serving a witness statement setting out why the expert evidence which has now been obtained was not available at the lower Court: see Fenyvesi at paragraph 32e. He suggested that the Court can infer from that failure that the appellant has no explanation.

[34]Mr Brandon further submits that, before Dr Verdu’s evidence could be admitted, the Court must be satisfied that it would be decisive, i.e. that it would have resulted in the Senior District Judge deciding one or more of the issues before him differently and discharging the appellant. He argues that this Court cannot be so satisfied. He refers to the case of Lucy Wright (also known as Lucy Robertson) v The Government of Argentina [2012] WL 609160. In March 2011, Dr Verdu reported for the appellant in that case about the Argentinian legal system and prison conditions in Argentina. The contents of her Report was similar to the Report in the present case (some passages were identical), although for understandable reasons the Report in the Lucy Wright case laid more emphasis on the position of female prisoners. The Report was before the appellate court, but had not been before the Senior District Judge who heard the case at first instance. In Lucy Wright, the respondent made no application to cross-examine Dr Verdu and, although it adduced some written evidence from the Argentinian authorities, that evidence did not deal with all the matters raised in her Reports.

[35]At the appeal hearing in the Lucy Wright case, the appellant had contended that Dr Verdu’s evidence demonstrated that there was a real risk that, if returned to Argentina, she would face inhuman and degrading treatment contrary to her Article 3 rights and that extradition would also be incompatible with her rights under Article 5(3) to trial within a reasonable time or to release pending trial. Despite the fact that Dr Verdu had not been cross-examined and the respondent’s evidence was incomplete, this Court found no incompatibility with the appellant’s Article 5 rights. The Court’s finding that there was a real risk of Article 3 mistreatment was based on Dr Verdu’s evidence of systematic abuse of foreign women prisoners in Argentina and was expressed as being based solely on the specific facts of the case. The Court observed that its decision might well have been different if the Government of Argentina had advanced proper evidence or given undertakings.

[36]Mr Brandon points out that, in the present case, the appellant is not relying on a potential breach of Article 3. His case under Article 5 is in effect very similar, if not identical, to that relied on by the appellant in Lucy Wright and has already been rejected by this Court in that case. That being so, there can be no prospect of the same arguments succeeding in the appellant’s case, particularly since the respondent would wish to cross-examine Dr Verdu and would rely on evidence disputing the assertions contained in her Report.

[37]For the appellant, Mr Bisgrove argues that it was not possible to adduce expert evidence at the hearing in the Magistrates’ Court in support of the appellant’s concerns that extradition would be incompatible with his rights under Articles 5 and 6. The expert Report obtained by the appellant’s previous solicitors “did not address the relevant issues” and no further Report had been obtained by the time the current solicitors took over the conduct of his case on 21 November 2011. It was then too late to commission further expert evidence before the resumed hearing. An application for an adjournment had been made to the Senior District Judge at that resumed hearing but had been unsuccessful. As it was, the evidence before the Senior District Judge about prison conditions and the Argentinian legal system had been of a very general nature and had not been sufficient to establish the real possibility of any breach of Article 5 or 6.

[38]Mr Bisgrove submits that, in his judgment, the Senior District Judge acknowledged the possibility that further evidence on the point might have altered the position. He said, in relation to the respondent’s contention that no adequate treatment for the appellants’ psychiatric condition, would be available in Argentina:

“Against this Mr Parker provides no specific information to meet the facts of his particular case. I do not speculate on the reasons for that. I am aware that he has been represented for most of the proceedings by solicitors and counsel who are able and very experienced in this field. I understand the difficulties faced by Mr Bisgrove, coming into this case so late in the day. I understand why he would want to obtain evidence to deal with the gaps in his case. However, as I said earlier, I gave full reasons for refusing the adjournment and note in particular that the defendant has had over a year to prepare his case. In the absence of specific evidence, or any response to the opinion of the Healthcare Office, counsel relies on information from international reports.”

[39]In his submissions to the Senior District Judge, Mr Bisgrove had posed a number of questions about the appellant’s eligibility for bail in Argentina and the likely length of delay before trial. In his judgment, the Senior District

Judge observed:

“I will deal first with… the article 5 and 6 point. Had it been raised at an earlier stage, it may well have been possible to obtain clarification from Argentina as to the position on bail and the likely delay in this matter proceeding to trial. However, in view of the already inordinate delay in this case I have not thought it appropriate, nor indeed necessary, to ask for those further enquiries to be made. The information provided in the report (i.e. the2011 US State Department report) is insufficient to establish a human rights barrier to extradition….”

[40]Mr Bisgrove submits that those observations demonstrate that, had the evidence of Dr Verdu been before the Senior District Judge, it would have filled in the gaps in the appellant’s evidence, and would have resulted in a finding that extradition would interfere with his Article 5 and 6 rights and would have led to his discharge. Mr Bisgrove seeks to distinguish this case from Lucy Wright on the grounds that, in Lucy Wright, the appellant admitted her guilt and any pre-trial detention would therefore have counted against her eventual sentence. Mr Bisgrove contrasted that with the position in the present case if, after a lengthy investigation, the appellant were not to be charged with any criminal offence or were to be acquitted at trial. In that event, the appellant would have served a lengthy period of imprisonment without being convicted of any offence.

Discussion and conclusions

[41]The background to this issue is one of considerable delay. The proceedings in the Magistrates’ Court took more than a year to complete and multiple hearings were necessary. During the whole of that period, the appellant was represented by experienced solicitors (and, for some of the time at least, by experienced counsel) who raised a variety of different challenges or potential challenges to his extradition. Those challenges did not include potential interference with the appellant’s Article 5 and 6 rights. It was only during the resumed extradition hearing on 30 November 2011 that counsel then instructed, Mr Bisgrove, raised the issue. It did not, according to the relevant entry in the respondent’s Chronology (which was not disputed), form one of the bases for the application for an adjournment made by him at the start of the hearing. It seems from the Senior District Judge’s observations (quoted at paragraphs 38 and 39 of this judgment) that the question of obtaining further evidence about prison conditions, pre-trial delays and the availability of bail and medical treatment in Argentina must have arisen later in the hearing. Be that as it may, the Article 5 and 6 issues were raised very late in the extradition proceedings.

[42]It appears that the appellant’s solicitors obtained a Report from an expert on Agrentinian prison conditions in May/June 2011 but, for some reason, that Report was not satisfactory for their purposes. We have no evidence about the precise topics on which the expert was asked to report. We do not know, for example, whether the expert had been instructed to report solely on the issue of whether the prison conditions in Argentina were likely adversely to affect the appellant’s medical condition or on the issue of whether adequate healthcare would be available or if the expert’s instructions had extended to such matters as the right to bail and pre-trial detention.

[43]There can be no doubt that evidence from Dr Verdu (or from another comparable expert) could have been obtained on the appellant’s behalf in time for the final extradition hearing. It is suggested that a lack of funding prevented this. However, there is no evidence to that effect, nor as to the extent and/or adequacy of the steps taken to obtain such evidence and/or the necessary funding. In those circumstances, we have no basis for finding that the evidence was not available at the time of the final extradition hearing.

[44]We are not persuaded that, even if the evidence had been available it would have resulted in the Senior District Judge making a different finding, whether on section 91 “oppression” or on potential interference with the appellant’s Article 5 and/or 6 rights. The expert evidence before the Senior District Judge suggested that the appellant’s psychiatric and physical conditions were reasonably stable and had presented no problems during the year for which he had been in custody in the UK. There was evidence from the Argentinian authorities to the effect that appropriate medical treatment would be available in an Argentinian prison. Whilst it is possible that, had Dr Verdu’s Report been before the Senior District Judge, he may have concluded that the appellant had reached the higher threshold required in order to establish “oppression”, we cannot be satisfied that this would have been so. Nor are we satisfied that, if Dr Verdu’s Report had been relied upon at the extradition hearing, the outcome of the Article 5 and 6 issues would have been different. We note that, in Lucy Wright, the Court was not persuaded by very similar evidence from Dr Verdu, despite the fact that she was not cross-examined and despite the absence of evidence from the respondent which met fully the points raised in her Reports. In the present case, the respondent has applied to cross-examine Dr Verdu if her evidence is admitted and, if we were to permit the appellant to rely upon that evidence, we would certainly consider it right to accede to the respondent’s application. Moreover, the respondent has produced evidence which takes issue with many of the matters asserted by Dr Verdu in her Report.

[45]In the event, we have concluded that neither of the conditions set out in section 104(4) of the 2003 Act is satisfied. We do not consider that the appellant’s case is one of those rare cases referred to in Fenyvesi (at paragraph 34h) where the provisions of section 29(4) may be ‘modulated’ by reference to section 3 of the Human Rights Act 1998. We therefore conclude that the respondent should not be permitted to adduce or rely upon Dr Verdu’s evidence at the appeal hearing.

[46]The parties have agreed an order which will be made when the judgment is handed down. The appeal is to be re-listed for a full hearing. We do not reserve the case to ourselves.