Arshad v Court of Magistrates Malta [2013] EWHC 3619 (Admin)

Case No CO/119/2013[2013] EWHC 3619 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/11/2013
Before
LORD JUSTICE GROSSMR JUSTICE CRANSTON
Between
Mohammed ArshadAppellantCourt of Magistrates MaltaRespondent
Daniel Sternberg (instructed by ABV Solicitors) for AppellantNicholas Hearn (instructed by CPS) for RespondentHearing Hearing dates: 9 July, 14 November 2013
Judgment

Introduction

[1]This is the judgment of the court.[2]We have before us an appeal against an order of District Judge Purdy on 2 January 2013 for the extradition of Mohammed Arshad, the appellant, to Malta. He is sought under a European Arrest Warrant to stand trial in relation to an allegation of being involved in the importation of cannabis into that country. The appeal came on for hearing before a Divisional Court of a different constitution on 11 March this year but was adjourned for further medical reports. We received those reports at a hearing on 9 July. In the light of the recommendations contained in them for a further assessment some months hence we felt we had no choice but to adjourn the matter. We ordered that further reports should assess the appellant’s progress and suicide risk, proffer a prognosis and in particular address the appellant’s fitness to plead at trial given his compulsory detention under section 3 of the Mental Health Act 1983. We now have those further reports.[3]The appeal revolves primarily around the appellant’s mental health. It is said that the judge was in error in finding that the appellant’s extradition was not unjust or oppressive by reason of that. The appellant’s mental health has deteriorated further since the judge ordered his extradition. A related ground of appeal is that the judge erred in finding that the appellant’s extradition was compatible with his rights under article 3 of the European Convention on Human Rights (“ECHR” or “the Convention”) due to conditions for mentally ill and suicidal prisoners in Malta. A further ground of appeal is that extradition would be incompatible with the appellant’s rights under article 8 of the Convention because of the relationship with his mother. At the hearing in July we stated that we would dismiss the appeal on the grounds of articles 3 and 8 of the Convention. We were invited to revisit our conclusions as to articles 3 and 8. We return later in this judgment to these contentions, dealing with them more shortly than we would otherwise have done by reason of the conclusion we have reached in relation to whether the appellant’s extradition will be unjust or oppressive under section 25 of the Extradition Act 2003.

Background

[4]The appellant is British. He was born in February 1989 and in 2011 was apparently working as a car trader. His mother and father came to this country from Pakistan as adults. His mother has been in a poor state of health and has suffered from cancer. The appellant has been heavily involved in her care since it appears that his father has not taken on the responsibility. The appellant has an older brother who has his own family and a sister who is also married with a small child. His sister has been visiting him regularly in recent times. The appellant’s care coordinator, Ros Brear, has said that the appellant has some learning difficulties and a consultant forensic psychiatrist, Dr Johns, has opined that his intelligence is probably at the lower end of the range.[5]We deal with the appellant’s health at greater length below. At this point we note that the first reference to mental health issues in his GP’s records was in August 2011, when he reported a depressed mood and stress, but would not elaborate. He was prescribed anti-depressants and referred for stress. In November his mood was stable but he told the GP that he did not want to take anti-depressants. A letter from thecognitive behavioural therapist in early December 2011 said that he had felt depressed for eight months and had thoughts of hurting himself. When he saw the GP on 27 March 2012 he complained of low mood. He had thoughts of self harm and so was referred as a matter of urgency to the crisis team. He told the GP that he had been recently charged with intent to supply. That was a reference to the charge giving rise to the European Arrest Warrant.[6]The European Arrest Warrant relates to alleged offending in 2010. It was issued on 13 April 2012 by the Court of Magistrates’ of Malta. It was certified by the Serious Organised Crime Agency on 16 April 2012. (There had been an earlier European Arrest Warrant, issued in late 2011, and certified by the Serious Organised Crime Agency on 12 March 2012. It was discharged.) The April 2012 warrant outlines a conspiracy in which the appellant was to send cannabis from the United Kingdom through a Maltese middle man to two buyers in Malta. The middle man had visited the appellant in the United Kingdom in July-August 2010 and in October 2010 the appellant had travelled to Malta. There he had arranged a drug deal worth 6000 euros. Then in November 2010 the police in Malta seized 4 kilograms of cannabis resin intended for local consumption. It was carried through the post. Evidence before the investigating magistrate was that the original consignment was to have been 10 kilograms. The warrant alleges that the appellant was the supplier. The warrant explains that the offence is punishable with a maximum sentence of life imprisonment. There is no reference to limitation periods in the warrant.[7]The appellant was arrested on the April warrant on 24 April 2012 and was given bail. (He was arrested under the original warrant on 30 March 2012 and appeared at an initial hearing at Westminster Magistrates’ Court the same day.) The hearing of the appellant’s case took place on 1 November and 7 November 2012. At the hearing the judge heard evidence from the appellant and his mother, sister and brother. He also heard evidence from Dr Nimmagadda, a psychiatrist instructed by the appellant’s solicitors. Dr Nimmagadda prepared two reports for the hearing, dated 11 September 2012. That regarding the appellant outlined his account of a sad family background. It also set out extracts from the GP’s records and those relating to his contact with the local community mental health team, which began in April 2012, after his arrest on the warrant. He had cut his left wrist in a park with a razor blade on 17 April 2012 (the following day a nurse described the cuts as “superficial”) and he had reported thoughts of suicide (the first was when he was 17, but there was no support for this in the medical records) and a further attempt where he had run into the traffic.[8]There had been a mental health assessment by two doctors on 10 May 2012. They concluded that the appellant’s mental presentation was caused by the use of illicit substances and that the extradition hearing and his mother’s illness could be contributing factors. In his report Dr Nimmagadda agreed with their assessment that the appellant did not suffer from an enduring psychotic illness. Dr Nimmagadda’s belief was that the appellant “suffered from depression during that period owing to the stressors in his life.” Currently he suffered from a number of depressive symptoms. The main stressors in the appellant’s case were the threat of extradition and the situation where his mother was dependent on him and he had a close relationship with her. Dr Nimmagadda concluded that if extradited “he is likely to graduate into a severe depressive episode, which significantly increases his suicidal risk.”[9]Dr Nimmagadda’s second report was about the mother. She had Hodgkin’s disease and he said that she depended heavily on the appellant for her care. Dr Nimmagadda assessed her as suffering moderate to severe depression. Her depression was likely to deteriorate and the risk of suicide would increase should her son be extradited. The risk was unlikely to be managed by the medical and other services.[10]The judge also had two reports from Ros Brear, the appellant’s care coordinator. At that point the appellant had been known to her team for some 8 months. The appellant was assessed to be of a high risk to himself, the only protective factor being his need to care for his mother.[11]Also before the judge was a report from a Maltese lawyer, Dr. Giglio, requested by the appellant’s solicitors. He was admitted as a lawyer in Malta in 1993 and practices criminal law. His report outlined the criminal justice system in Malta. He said that with an appeal to the Court of Criminal Appeal a matter may take up to 5 years. He explained that persons with mental health difficulties were not confined in the ordinary prison but transferred to the relevant forensic section of Mount Carmel Hospital. He added that the section was heavily overcrowded because of competition from those who did not, in truth, need treatment there but because it was considered more comfortable than prison. In prison “the isolation of suicidal prisoners and the conditions of such isolation are not at all salutary”. Dr Giglio observed that a Council of Europe report had had occasion to criticize conditions in Malta.[12]That was a reference to a report by the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of the Council of Europe (“the CPT”), following a visit to Malta in May 2008. The delegation was given ready access to the forensic section of Mount Carmel Hospital. Although recently built, living conditions at the forensic ward at Mount Carmel Hospital were “generally bleak and custodial”. The ward provided no organised activities whatsoever, and the daily regime was “impoverished”. Treatment and care provided in this ward was limited to pharmacotherapy and there was no occupational therapy and psychotherapy. Psychiatric consultations were regular if rather brief, as were the contacts with the nurses. Greater emphasis was placed in the unit on security considerations than on therapeutic interaction with patients and the role of the prison officers appeared to be predominant. The maximum security unit was even more austere. It provided the same treatment and care as the forensic ward. The Maltese Government’s response to the CPT report referred to steps taken to improve conditions since the visit.[13]Also before the judge was a statement from the Maltese authorities. This was to the effect that Malta used modern psychiatric practices. The appellant’s psychiatric report had been forwarded to Dr Joseph Spiteri, in Malta, who had noted that the appellant did not have an acute psychiatric disorder and that the behaviour described could be adequately dealt with in the forensic section of Mount Carmel Hospital.[14]The judge reached certain factual conclusions. First, the appellant’s unusually strong relationship with his mother was one of “huge emotional dependence”. Secondly, if the appellant were to be extradited his brother and sister seemed genuinely unable to envisage any meaningful assistance they could provide the mother. For cultural reasons it was unrealistic for her to accept assistance in her son’s absence. However, she was unlikely to commit suicide and the greater fear for her was self neglect. Thirdly, “[a] real risk of [the appellant] committing suicide, absent active safeguards of the kind robustly operating within HM’s prisons, certainly exists but absent that level of oversight and/or control the risk is greatly increased.” Fourthly, there was no reason to doubt the word of the Maltese judicial authority about the treatment of psychiatrically affected prisoners, including suicidal inmates.[15]Before the judge various bars to extradition were raised, including whether the appellant’s extradition would be oppressive by reason of the condition of his mental health and the risk of suicide, whether extradition would be compatible with his rights under articles 3, 5, 6 and 8 of the Convention and whether his extradition ought to be stayed as an abuse of the process of the court. (The judge’s rejection of the articles 5 and 6 points are not pursued on this appeal so we need say no more about them.)[16]The appellant’s case had been joined with that of St. John Alfred Lewis because of the common issue in the two cases of extradition to Malta of those with mental health conditions, especially a risk of suicide. The judge ordered extradition of both the appellant and Mr Lewis. He delivered his written reasons on 2 January 2013. Mr. Lewis has not appealed the order for his extradition.[17]The judge concluded that on the medical evidence it would not be unjust or oppressive to extradite the appellant. Psychiatric care in Malta, he found on mutual trust principles, to meet ECHR standards. As to prison conditions, these could not be said to offend section 3 ECHR, especially given the Maltese assurances. As to article 8 the decision was far from easy but there were the brother and sister to care for the mother, and Social Services were well aware of her, even if she may be inhibited from using them. Her condition could be said to make it a borderline case but given the nature of the allegation in the warrant it was not disproportionate to extradite.

Events post extradition order until July

[18]Following the judge’s decision in early January this year, the appellant received treatment at the Tindal Centre, which is an NHS facility for those with mental health problems. He cut his wrists superficially with a razor blade in early February and at the time was reporting suicidal thoughts. After that he was an in-patient at the centre. He expressed paranoid thoughts and suicidal thoughts, but not consistently. In mid-February there was an application for his admission for assessment under section 2 of the Mental Health Act 1983. Doctors recommended that he should be made the subject of compulsory admission to hospital under section 3 of that Act because of the diagnosis of depression, personality disorder issues, drug misuse and his refusal voluntarily to agree with his management and treatment plan. Apparently the appellant’s father, as his nearest relative, objected to the application, which was not pursued.[19]Dr Nimmagadda prepared an addendum psychiatric report on 2 March 2013. He interviewed the appellant and spoke to his sister. The sister told him that since the appellant was in hospital her mother had become physically and mentally unwell. Dr Nimmagadda noted a significant deterioration in the appellant’s mental state since his last assessment. He was refusing his oral medication so was being given injections against his will. He presented with a number of symptoms of clinical depression including persistent low mood. He continued to report having a number of suicidal thoughts. “I believe he currently presents with high suicidal risk”. His clinical presentation was consistent with a severe depressive episode. He was not fit for extradition and he should remain in a psychiatric hospital for treatment and to manage his risk of suicide.[20]Between March 25 and early April 2013 the appellant was an informal inpatient at the Tindal Centre. He discharged himself against medical advice on 3 April 2013. However, on 8 April 2013 the appellant was assessed under section 136 of the Mental Health Act 1983. He remained in the Tindal centre for a day before again discharging himself, again against medical advice. On 15 April 2013 he informed his care co-ordinator that he intended to harm himself. From that date he was admitted at the Tindal centre under section 2 of the Mental Health Act 1983 and again became an informal patient.[21]In early June he was assessed under section 3 of the Mental Health Act 1983 due to concerns regarding the degree of his psychotic episodes, his potential for self-harm and concerns regarding views he had expressed that he would kill his mother for compassionate reasons. The appellant was assessed by Dr. Sophie Johnson of the Tindal centre and Dr. Raj Attavar. Dr Johnson became his consultant psychiatrist in mid March 2013. Both doctors agreed that the appellant met the criteria for compulsory admission for treatment under section 3 of the Mental Health Act 1983. In mid-June proceedings were issued in the Reading County Court for an approved mental health professional to displace the appellant’s father as the person responsible for discharging the functions of the nearest relative. Following the appellant’s father and sister consenting to the appellant being subject to compulsory admission those proceedings were compromised. Thus on 20 June 2013 the appellant was detained in the Tindal centre pursuant to section 3 of the Mental Health Act 1983. He was to be reassessed in December 2013. The appellant has been detained under section 3 to the present day.[22]Dr Andrew Horne was instructed as an expert by the appellant’s representatives to provide a psychiatric report, which was completed on 14 May 2013. Dr. Horne’s opinion was that a permanent separation of the appellant from his mother either because of her death or his extradition would make him feel enormously angry and would lead him to kill himself. Dr. Horne’s conclusions were that “if he were extradited his mental state would deteriorate very seriously and he would try very hard to kill himself… I think that in the long term if he were extradited the chance of his committing suicide would be very high indeed.”[23]Dr. Andrew Johns, a psychiatrist instructed by the CPS, provided his report as an expert on 17 June 2013. The appellant told him of the voices he heard and of his thoughts of self harm. He had been on two periods of unescorted leave, which had gone well and he had not thought of running in front of cars. Dr Johns concluded that the appellant was not a reliable historian and that he exaggerated his symptoms although he did not, on balance, find him to be malingering. His accounts of seeing “headless animals” and “gold people” were deeply unconvincing, as were his reports of smelling dead animals. His account of symptoms became more florid following the arrest warrant and was not consistent over time. His reported hallucinations were not symptoms of serious psychosis but manifestations of anxiety in a man with personality difficulties. His repeated presentation to medical services with thoughts of self-harm largely represented an over-emotional response to his current difficulties due to his personality, rather than being caused by psychotic illness or severe depression. His diagnosis was complicated by his misuse of alcohol and drugs from late adolescence until relatively recently. He met the Pritchard criteria (fitness to plead). Finally, Dr Johns said:
“I note that the risk of suicide and harm to others may be monitored and contained by incarceration in a hospital or a prison.”
[24]A joint report setting out areas of agreement between Drs. Horne and Johns was prepared on 21 June 2013. The agreed diagnosis was that the appellant suffers from a depressive disorder and an unspecified personality disorder with emotionally unstable and histrionic traits. He had some symptoms from August 2011 but the onset of the extradition proceedings has been the main cause of the current exacerbation, since extradition represented a threat of imprisonment abroad and separation from his mother. He was at a high risk of attempts at self-harm and a moderate risk of suicide. He required continued hospital care and should not attend court for extradition since this would interfere with his treatment. If extradited the risk of self-harm was likely to increase. Drs. Horne and Johns recommend that he be re-assessed after 3-4 months. The areas of disagreement between Drs. Horne and Johns were that the former diagnosed schizophrenia, with some unusual symptoms, and that his severe mental health problems might respond poorly to treatment. Dr Johns diagnosed personality disorder. A period of three months would allow for a better understanding of the risks and for an assessment of progress. As we have said, it was on the basis of joint recommendation for reassessment in 3-4 months that we adjourned the hearing in July.

Events July-November

[25]The appellant has continued to be detained at the Tindal Centre under section 3 of the Mental Health Act 1983. Dr Johnson is still his consultant psychiatrist and responsible clinician under that Act. In a report of 25 October 2013 she said that the appellant has been very unwell since his admission to the Centre and has required one-to-one observations for significant periods of time due to a high suicide risk. In the two to three weeks before the report there has been some improvement in his mental state; he has been on hourly checks and had had some limited leave. He continued to experience command hallucinations to kill himself but felt able to resist them. In her view the appellant met the criteria for paranoid schizophrenia and emotionally unstable personality disorder. He found it very difficult to be separated from his mother and this had contributed to his suicidal ideation. He believed he would be less of a burden on his family if he killed himself as he would be able to care for his mother as a ghost. There had been seven suicide attempts since April 2013, two serious on 15 August. Others had been of moderate seriousness. The legal proceedings were undoubtedly worsening his psychosis and exacerbating his depressive symptoms. In Dr Johnson’s opinion the appellant was genuinely suffering from the disorders. His suicide risk would be significantly increased if extradited since he relied heavily on his mother and sister:
“His suicide risk would be extremely high if he were extradited to Malta ... [His] psychosis and emotional instability would worsen if he was extradited ... [He] would struggle to make relationships with staff, his ties with his family would be loosened and this would lead to a deterioration in his mental health … He is currently unfit to plead or stand trial.”
Dr Johnson added the appellant will need life long medication to maintain a level of stability.[26]At the request of the appellant’s solicitors Dr Horne prepared a further report dated 25 October 2013. In it he reviewed the appellant’s medical notes since his earlier report, interviewed the appellant and spoke to the ward nursing staff and the appellant’s sister. Despite the view of some staff that the appellant’s symptoms are not genuine, and Dr Horne’s own view that at times he exaggerated them, Dr Horne concluded that the appellant was genuinely suffering from chronic schizophrenia, which had clearly become treatment resistant. While there had been a slight improvement over the previous fortnight, overall his mental stare had deteriorated since he was last seen. The schizophrenic features of his presentation were becoming more marked. His suicidal intent had increased significantly. He had made a very serious suicide attempt and he appeared determined to try to commit suicide again as soon as the opportunity arose. “[H]e has a very high risk of committing suicide”. He continued to need skilled inpatient treatment in hospital. Dr Horne added:
“I do not think he is fit to plead. If he were extradited his mental state would deteriorate further and the abilities needed to plead and stand trial would be impaired further.”
If he takes his medication, there was a one in three chance of significant improvement, and a small chance of a dramatic improvement. The prescribed medication usually achieved its maximum benefit in 3-5 months, but sometimes took a year. “16) I therefore cannot predict in what way such improvements, if they were to occur, would affect his fitness to be extradited and plead and stand trial. 17) His personality disorder, limited intelligence and the stress caused by the threat of extradition all make for a poorer prognosis, and I think it is not very likely, even if he takes clozapine as advised, that he will be fit to be extradited and plead and stand trial in the foreseeable future.”[27]At the request of the CPS Dr Johns has also prepared a further report. Dr Johns examined ward notes and discussed the issue with Dr Johnson and ward staff. In his opinion the appellant continued to show signs of severe mental illness. There was no evidence of malingering. Dr Johns stated that he had to change his diagnosis: the appellant was most likely suffering a form of schizophrenia, with secondary depression disorder and unspecified personality disorder with emotionally unstable and histrionic traits. He was an unreliable historian. As regards his progress his condition had worsened since June and he was appropriately detained. It was essential that he continued to receive continuous monitoring and psychiatric care and he could not be considered for leave off the ward. The risk of suicide was high, due to persistent command voices and to his prevailing low mood and despair. As to prognosis, Dr. Johns was more pessimistic than in his first report regarding the likelihood of an imminent response to treatment. Based on his experience the appellant might improve within four months. If he did not respond then he was likely to remain very unwell for at least six months. He was unfit to plead and was not medically fit to attend court.[28]In accordance with our order of 9 July Dr Horne and Dr Johns prepared a joint report on 31 October 2013. Unlike the previous joint report in June there are no areas of disagreement in this report. It states that the appellant suffers severe mental health conditions. The extradition proceedings are the main cause of the exacerbation of his condition. He is suffering from a form of schizophrenia with a secondary depressive disorder and an unspecified personality disorder with emotionally unstable and histrionic traits. He is not a reliable informant. His condition has worsened since June. His expressions of psychotic experiences are more frequent. His expressed wish to kill himself is more determined. He is generally more disturbed and troubled on the ward. He has made a serious and determined attempt at suicide. The risk of suicide remains high owing to command voices and his prevailing low mood and despair. He requires continued hospital care. His detention under section 3 of the Mental Health Act 1983 to allow for this treatment is appropriate. He should not attend court for extradition now, since this would interfere with his treatment. The joint report continues:
“(6) The appellant does not meet the Pritchard criteria and is not fit to plead. (7) If he were extradited now the risk of suicide would be likely to increase further. (8) Even if he complies with [his medication] it is less likely than not that he will show a significant improvement in 6 months.”

Section 25: the appellant’s mental health

[29]It is submitted on the appellant’s behalf that the judge erred in finding that extradition was not unjust or oppressive within the meaning of section 25 of the Extradition Act 2003 (“the 2003 Act”) by reason of the condition of his mental health. The appellant’s condition has deteriorated since the order for his extradition and the current medical assessments show conclusively that his extradition would be oppressive. If we are not minded to discharge the appellant under this ground we should adjourn the appeal to permit him to continue to receive the recommended treatment in hospital.[30]Section 25 of the Extradition Act 2003 for category I cases, which is in the same terms as section 91 of the Act for category II cases, provides as follows: “25 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 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 until it appears to him that the condition in subsection (2) is no longer satisfied.[31]The issues of a person’s mental condition, and the attendance risk of suicide if he were extradited, were considered in Republic of South Africa v Dewani [2012] EWHC 842 (Admin); [2013] 1 WLR 82. The appellant in that case suffered two mental disorders (depressive illness and post traumatic stress disorder), there was a real and significant (but not immediate) risk of suicide or self harm, he was unfit to plead and the risk of suicide would become higher if an order were made for extradition. The doctors disagreed about the prognosis, but his treating doctor and the doctor appointed by the requesting state were optimistic, the latter opining that it was better for him to remain in Britain to recover.[32]The court (Sir John Thomas P and Ouseley J) said that little help is gained by reference to the facts of other cases and that the focus of the court should be on the statutory test. The term "unjust or oppressive" requires regard to be had to all the relevant circumstances, including the fact that extradition is ordinarily likely to cause stress and hardship; neither of those is sufficient. “It is not necessary to enumerate these circumstances, as they will inevitably vary from case to case…”: [73]. The court decided that the case should be adjourned under section 91(3)(b). “[83] Thus balancing his unfitness to plead, the risk of a deterioration in the appellant's condition, the increased prospects of a speedier recovery if he remains here and, to a much lesser degree, the risk of suicide and the lack of clear certainty as to what would happen to the appellant if returned in his present condition, we consider that on the evidence before the Senior District Judge it would be unjust and oppressive to order his extradition. Despite the highest respect in which we hold decisions of the Senior District Judge, we consider that he erred and should have exercised his powers under s.91(3)(b) and ordered that the extradition hearing be adjourned.”[33]By contrast, inWolkowicz & Biskup v Poland, Rizleriene v Lithuania [2013] EWHC 102 (Admin); [2013] 1 WLR 2402 Sir John Thomas PQBD and Burnett J upheld the orders of the district judge as to extradition. The court approved the principles formulated by Aikens LJ in Turner v Government of the USA [2012] EWHC 2426 (Admin) of the correct approach to suicide risk under section 25 of the 2003 Act (and section 91 in part 2 of the 2003 Act): “[28](1) The court has to form an overall judgment on the facts of the particular case.(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.(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.(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.(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?(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?[34]Sir John Thomas PQBD went on to emphasise the centrality of preventative measures. The key issue in almost all cases will be the measures in place to prevent any attempt at suicide being successful. Within the European Union it will ordinarily be presumed that a receiving state will discharge its responsibilities to prevent the requested person committing suicide, in the absence of strong evidence to the contrary. As a consequence it should not be necessary to require any assurances from requesting states within the European Union. Only in a rare case, therefore, would a defendant be able to establish in the case of a category 1 territory that preventative measures will not be effective in preventing the risk of suicide: [10].[35]We have reached the conclusion that the appropriate order in this case is one to adjourn the proceedings under section 25(3)(b). After the July hearing we were not persuaded that this was the inevitable course. We noted that it was not the case that the appellant had suffered from mental illness for some considerable time or had a history of suicide attempts. The appellant had reported depression from the age of 17 but it is accepted by the expert psychiatrists that he is an unreliable historian. Indeed the first reference to mental health issues in his GP’s records was in August 2011, when he reported a depressed mood and stress, but would not elaborate. That was following the initiation of extradition proceedings. (It will be recalled that the alleged conspiracy was discovered by the Maltese authorities in November 2010.) The first objective evidence of mental health issues was 9 months later.[36]The first time self harm was mentioned to the GP was in March 2012, the same occasion he alluded to the European Arrest Warrant. Moreover, both expert psychiatrists, Drs. Horne and Johns, agreed that the onset of the extradition proceedings had been the main cause of the current exacerbation, since extradition represented a threat of imprisonment abroad and separation from his mother. As for the appellant’s attempts at suicide, these threats have been recurrent from the first part of 2012 but in July when we first heard the case the only attempt for which there was firm evidence was from April 2012, when he made superficial cuts to his left wrist with a razor blade in a park. Moreover, the agreed evidence of Drs. Horne and Johns in their June report was that risk of suicide was only moderate. Although both doctors also assessed that he was at high risk of attempts at self-harm, and if extradited the risk of self-harm was likely to increase, we thought that the preventative measures would be crucial.[37]However, the case now has a different complexion from what it had in July. The appellant’s condition has worsened. Dr Johns changed his diagnosis. The appellant is receiving treatment in the Tindal Centre and the seriousness of his condition is underlined by his continued compulsorily detention under section 3 of the Mental Health Act. Drs Horne and Johns now agree that the appellant suffers from schizophrenia with a depressive disorder and an unspecified personality disorder. While it is clear that extradition proceedings have caused his condition to deteriorate, the doctors (including his treating doctor, Dr Johnson) do not regards his symptoms as invented or exaggerated to improve his position in these proceedings. There was a serious suicide attempt in August and Drs Horne and Johns agree that the risk of suicide remains high. The two experts also agree that the appellant should not attend court for extradition now, as it would interfere with his treatment and that, if extradited at the present, the risk of self-harm is likely to increase further.[38]The severe condition of the appellant’s mental health, the high risk of suicide assessed by both doctors, his unfitness to plead and his current treatment and prognosis have led us to conclude that his extradition at this point would be oppressive. It is said on his behalf that that points to discharge under section 25 of the 2003 Act; after all, the Maltese authorities can always issue a new warrant in the future should his position change so he could be extradited. In our judgment, however, that is not the right course. The prognosis is not good but both doctors seem to agree that that if he is to improve it should be evident in 6-12 months. In his report Dr Horne opines that if he takes his medication there is a one-in-three chance that there may be a significant improvement. Dr Horne explains that the effect of the medication comes on gradually, usually reaching maximum benefit at 3-5 months, but sometimes taking a year to achieve maximum benefit. The view of Dr Johns is that if he responds to medication he may well improve within 4 months, but if he does not then he is likely to remain very unwell for least 6 months. It is clear that this is not the case which faced the judge. But in our view these various factors point to the appropriate course being to adjourn under section 25(3)(b) so that the appellant can continue to be treated at the Tindal Centre to see if he does recover.

Article 3 ECHR

[39]The appellant’s arguments in respect of articles 3 and 8 were renewed before us and we were invited to revisit our conclusions. Nothing in the further material now before the Court persuaded us to do so. We do not think that the argument on article 3 on the facts of this case adds anything to the argument under section 25. So far as concerns article 8, the reality of the appellant’s detention under section 3 of the Mental Health Act 1983 – crucial to his section 25 case – gives rise to obvious difficulty for his article 8 case so far as concerns his mother. As to the appellant’s private life, we remain firmly of the view that article 8 considerations would not result in it being disproportionate to extradite the appellant, had it not been for our conclusions in respect of section 25. So we can deal with those matters shortly.[40]It is accepted on the appellant’s behalf that the starting point for any inquiry for the purpose of making a decision under section 21(1) is the presumption that Malta as a Convention state is able to, and will, fulfil its article 3 obligations. Given the underlying objective of the European Arrest Warrant scheme, that presumption is not easily displaced. However, it is submitted that in this case that there is clear and cogent evidence which establishes that, in this particular case, extradition would not be compatible with the appellant's Convention rights. There are the CPT’s criticisms of the Forensic Unit at Mount Carmel Hospital and what is said to be the inadequate response of the Maltese government. There is also the report of Dr. Giglio. The Maltese authorities could have provided additional evidence beyond the short document before the judge, which asserts that there is provision in Malta for mentally ill, but have not done so. The appellant’s vulnerability, the uncertainty surrounding the conditions in Mount Carmel Hospital and the possible length of the proceedings in Malta as outlined by Dr Giglio mean that the extradition of the appellant does pose a real risk of a breach of his article 3 rights.[41]In our view the judge was correct in rejecting this aspect of the appellant’s case. Nothing that has occurred in the meanwhile renders his conclusion incorrect. Wolkowicz held that the key issue in almost all cases will be the measures in place to prevent any attempt at suicide being successful and that within the European Union it will ordinarily be presumed that a receiving state will discharge its responsibilities to take those measures. There is no strong evidence to the contrary in Malta’s case. With respect to Dr Giglio and the treatment of mentally ill prisoners, the relatively short passage in his report on Mt Carmel Hospital hardly constitutes the clear and cogent evidence demanded by the authorities. The CPT report is troubling but does not go near rebutting the presumption that the appellant will be properly treated in light of his mental health conditions. In Krolik v Poland [2012] EWHC 2357 (Admin) a Divisional Court (Sir John Thomas PQBD and Globe J) said that there would have to be a significant volume of reports, from bodies such as CPT, UNHCR and NGOs, before the presumption arising from the mutual respect between Convention states (and this case also European Union Member States) could be rebutted. In this case the evidence gets nowhere near establishing a real risk of article 3 mistreatment.

Article 8

[42]The appellant’s case in respect to article 8 turns largely on the relationship of the appellant with his mother. The judge found that there was a huge emotional bond between the two. Moreover, the mother depended on the appellant for assistance with her medical care. In particular the judge had the evidence in Dr Nimagadda’s separate report about the irreparable impact the appellant’s extradition would have on the mother. It would be disproportionate to extradite him. Since the judge heard the case, the appellant contends, it is even clearer that the separation of the appellant from his mother will aggravate the deleterious effect that extradition will have on his mental health with a concurrent increase in the risk of self-harm and suicide.[43]In HHvDeputy Prosecutor of the Italian Republic, Genoa[2012] UKSC 25, [2012] 3 WLR 90 Baroness Hale confirmed that that the approach of the court to article 8 rights is not radically different as between extradition and expulsion cases: [29] She commented that Norris v USA (No. 2)[2010] UKSC 9, [2010] 2 AC 487 had been wrongly interpreted to impose an exceptionality test and in some cases had been used to set a threshold which was unattainable in practice: [22] That was not a case which considered in any depth the position of vulnerable adult children, although we have born in mind these salutary remarks in our consideration of the issue.[44]In our view there cannot be any objection on article 8 grounds to the appellant’s extradition. If it is assumed that family and private life are engaged, the proportionality assessment has in the balance in favour of extradition the public interest in honouring extradition arrangements. The judge alluded to the fact that they weigh heavily in a case where the allegation is one of the appellant sending drugs across borders. We accept that there will be an impact on both the mother and the appellant if he is extradited, but as the judge concluded, if the brother and sister were not to care for the mother, Social Services are well aware of her, even if she may be inhibited from using them. We note that since the appellant has been detained under section 3 of the Mental Health Act since June this year he has not been in a position to offer his mother strong support. There is also the appellant’s private life, in particular his condition and its treatment, we simply cannot see how, in an extradition case involving an allegation of this nature in the warrant, it would be disproportionate to extradite.

Conclusion

[45]For the reasons we have given we adjourn this case under section 25 (3)(b) of the Act. To this extent we differ from the judge and allow the appeal; it will be apparent from our reasons that the material before us was significantly different to that which was before him.