Haroon Aswat, R (On the Application Of) v Secretary of State for Home Department [2014] EWHC 1216 (Admin)

[2014] EWHC 1216 (Admin)Case No CO/13747/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/04/2014
Before
THE LORD CHIEF JUSTICE OF ENGLAND AND WALESMR JUSTICE MITTING
Between
THE QUEEN ON THE APPLICATION OF HAROON ASWATClaimantSECRETARY OF STATE FOR HOME DEPARTMENTDefendantTHE UNITED STATES OF AMERICAInterested Party
MR EDWARD FITZGERALD QC CBE AND MR BEN COOPER(instructed by BIRNBERG PEIRCE AND PARTNERS) for ClaimantMR JAMES EADIE QC AND MR BEN WATSON(instructed by THE TREASURY SOLICITOR) for DefendantMISS CLAIR DOBBIN (instructed by THE CROWN PROSECUTION SERVICE) for Interested PartyHearing Hearing dates: 1st and 2nd April 2014
JudgmentMR JUSTICE MITTING :Background
[1]The claimant was born in Batley, West Yorkshire on 22 September 1974. His parents are alive and live in Batley. He has four sisters and five brothers. He had an unremarkable childhood. In about 1997, he moved to London. He is a British citizen.[2]On 26 November 1999 he arrived with another man at John F Kennedy Airport, New York. The two men then travelled by Greyhound bus to Seattle. The U.S. Government alleges that they then went by car to Bly, Oregon, to help set up and run a jihadi training camp, overseen by a U.S. citizen, James Ujaama. The claimant is said to have been at the camp for four to six weeks, during which time, weapons, including rifles and a replica AK47 were fired. The object of the training, according to the U.S. Government, was to equip recruits to go to Afghanistan to receive further training and then to fight there or elsewhere. The claimant’s trip to Bly is said to have been organised by Mustafa Kamel Mustafa (“Abu Hamza”).[3]According to the claimant, he undertook a pilgrimage to Mecca in 2000 and then spent time in Afghanistan, Pakistan and South Africa.[4]On 20 June 2005, a criminal complaint was filed against the claimant and a warrant issued for his arrest at the U.S. District Court, Southern District of New York.

His detention for extradition in 2005

[5]On 20 July 2005 the claimant was arrested in Zambia. On 7 August 2005, he was deported from Zambia to the United Kingdom. On arrival, he was arrested on a provisional warrant issued pursuant to a request made by the U.S. Government.[6]On 12 September 2005, a Federal Grand Jury returned a “superseder” (i.e. amended) indictment against the claimant, charging him with four counts of criminal conduct arising out of his participation in the activities of the training camp, punishable on conviction with a maximum sentence of 35 years imprisonment.[7]On 29 September 2005 the United States Government requested the extradition of the claimant to stand trial on that indictment in the U.S. District Court, Southern District of New York.[8]On 5 January 2006 the Senior District Judge decided that there were no bars to the claimant’s extradition and sent the case to the Secretary of State for his decision on whether or not the claimant should be extradited. On 1 March 2006, the Secretary of State ordered extradition. The claimant appealed to the High Court. On 30 November 2006, the Divisional Court (Laws LJ and Walker J) dismissed his appeal: [2006] EWHC 2927 (Admin). It certified a point of general public importance, but on 6 June 2007, the House of Lords refused permission to appeal.[9]By virtue of Section 118(2) Extradition Act 2003, the Secretary of State was then obliged to extradite the claimant to the United States within 28 days. If the Secretary of State did not, a District Judge would have been obliged to order his discharge, unless reasonable cause was shown for the delay: s118(7).[10]On 10 June 2007 the claimant and Babar Ahmad lodged applications with the Strasbourg Court. On 12 June 2007, the Court made Rule 39 indications in both cases, with which the United Kingdom has complied.[11]The claimant has been detained since his arrest on 7 August 2005 – a period of over eight and a half years. Until 27 March 2008, he was detained within the prison estate in HMPs Belmarsh, Woodhill and, after 2 October 2007, Long Lartin. Until March 2008, neither his mental state nor behaviour gave rise to significant concern.

His admission to Broadmoor in March 2008

[12]In March 2008, both deteriorated markedly. He began to shout and chant and may have had auditory and visual hallucinations. He kicked a prison officer; and on 13 March 2008 was placed in a segregation cell. From 14 March 2008, he refused to eat. He was seen by Dr. Kenney-Herbert, who made an urgent referral to Broadmoor on 17 March 2008. He was seen by Dr. Payne on 21 March 2008. His diagnosis was that the claimant was suffering from an acute psychotic episode. Arrangements were made for his urgent admission to Broadmoor on 27 March 2008.[13]In his first few weeks in Broadmoor, he displayed florid symptoms of what came to be diagnosed as schizophrenia, including delusional and grandiose beliefs. These were successfully treated by medication. Since early 2009, he has been prescribed 400 mg per day of amisulpride and, more recently, an anti-depressant. He mixes freely with other patients and is allowed “green ground access” (i.e. access to the secure grounds of Broadmoor Hospital). He receives regular visits from his family.[14]Dr. Claire Dillon, a Consultant Forensic Psychiatrist, has been the claimant’s responsible clinician since June 2011. She has prepared a detailed report dated 26 March 2014 for the purpose of these proceedings. On 11 November 2011 the First Tier Tribunal (Health, Education and Social Care Chamber) reviewed the claimant’s continued detention under Section 41 Mental Health Act 1983. It decided that he was not entitled to be discharged, on the basis that it was necessary for his health and safety or for the protection of other persons that he should continue to receive medical treatment for his mental disorder while detained in a hospital. The Tribunal heard evidence from Dr. Dillon and considered a written report dated 6 May 2011 by Dr. Payne. It accepted Dr. Dillon’s opinion that the claimant suffered from an enduring mental disorder, paranoid schizophrenia, “of a nature although not currently of a degree, which makes it appropriate for him to continue to be liable to be detained in a hospital for medical treatment for his own health and safety”. The Tribunal, which heard evidence from the claimant, considered that he lacked insight into his condition and noted Dr. Dillon’s opinion that, given freedom of choice, he would be unlikely to accept his medication. The Tribunal also accepted her opinion that it would be detrimental to the claimant’s mental health for him to be returned to prison – i.e., to Long Lartin.[15]Dr. Payne’s report also addressed the only other plausible hypothesis for the treatment of his condition – in a hospital other than Broadmoor or Rampton. He considered that his mental disorder and risk could be managed by general adult psychiatric services in a local psychiatric hospital, in conditions of medium security.

The proceedings in Strasbourg: 2007-2013

[16]On 6 July 2010 the Fourth Section of the Strasbourg Court giving judgment on the admissibility of applications by four individuals, including the claimant, ruled two grounds of application admissible – that the length of sentence likely to be imposed by a U.S. Court (wrongly stated to be 50 years in the case of the claimant) and the conditions in which the applicants would be likely to be detained after conviction – raised questions under Article 3 which required consideration on the merits; but ruled the remaining grounds of application, including pre-trial conditions of detention, manifestly ill-founded and so inadmissible: (2010) 51 EHRR SE6 p 97. The court knew that the claimant had been diagnosed with schizophrenia and transferred to Broadmoor: paragraph 123. Even so, it reached the same decision in his case: “For the second applicant, who is no longer at HMP Long Lartin but is being cared for at Broadmoor Hospital, the court does not doubt that the United States Authorities would allow transfer to an equivalent high security hospital should that need arise after extradition”.[17]By the time that the Fourth Section determined the applications on their merits, the First Tier Tribunal had reached its decision; and that decision together with its reasons must have been reported to the Court, because it ruled at (2013) 56 EHRR 1 paragraph 256 that it was not in a position to rule on the merits of his complaints, particularly in respect of ADX Florence (where it was contended that he would be detained after conviction) but required further submissions from the parties.[18]The Court asked the Government to address the following three questions by 9 May 2012:
“1. In determining whether detention at ADX Florence would be compatible with Article 3, what relevance, if any, is to be attached to the fact that Mr. Aswat’s mental health has necessitated his transfer from HMP Long Lartin to Broadmoor Hospital? 2. Prior to Mr. Aswat’s surrender to the United States, would details of his mental health condition be provided to the United States’ authorities? 3. After surrender, what steps would be taken by the United States’ authorities: (i) to assess whether Mr. Aswat would be fit to stand trial; and (ii) to ensure that, in the event of conviction, his mental health condition would properly be taken into account in determining where he would be detained?”
With the assistance of a detailed letter dated 8 May 2012 from the United States Government, the United Kingdom responded in time.[19]On 16 April 2013, the Fourth Section handed down its judgment on the claimant’s case. It unanimously held that, “There would be a violation of Article 3 of the Convention in the event of the applicant’s extradition solely on account of the current severity of his mental condition.” and decided to continue its Rule 39 indication until such time as the judgment became final. Its reasons for doing so are set out in paragraphs 51, 52 and 55 – 57 of its judgment:
“51. The medical evidence in the present case indicates that the applicant is suffering from an enduring mental disorder, namely paranoid schizophrenia, which has been characterised by auditiory hallucination, thought disorder, delusions of reference, grandeur and guarded and suspicious behaviour. The last forensic psychiatrist report submitted to the Court indicated that his condition was well controlled on anti-psychotic medication and that participation in occupational and vocational activities at Broadmoor, including attendance at the mosque, had helped prevent any significant deterioration in his mood. However, the applicant had only limited insight into his illness and would be likely to relapse if he ceased taking his medication. In giving evidence to the First Tier Tribunal (Health, Education and Social Care Chamber) Mental Health, a consultant forensic psychiatrist stated that if he were to be returned to prison, his compliance with medication would be uncertain, particularly in the medium to long term, and this would likely lead to a relapse. The Tribunal subsequently concluded that detention and treatment in a medical hospital were necessary for the applicant’s own health and safety. 52 Whether or not the applicant’s extradition to the United States would breach art.3 of the Convention very much depends upon the conditions in which he would be detained and the medical services that would be made available to him there. However, any assessment of those detention conditions is hindered by the fact that it cannot be said with any certainty in which detention facility or facilities the applicant would be housed, either before or after trial. This is particularly the case with respect to the pre-trial period, about which very little information has been provided. The US Department of Justice has given no indication of where the applicant would or could be held, although it has advised that if he consents to his medical records being provided to the US authorities on extradition, those authorities would be able to take his mental health concerns into account in deciding where to house him while on remand. It is also unclear how long the applicant might expect to remain on remand pending trial. If extradited the applicant’s representatives would be entitled to contend that he was not fit to stand trial in the United States on account of his mental disorder. A district judge would then have to assess his competency and, if the applicant was found to be competent, he could appeal to the Court of Appeals. There is no information before the Court concerning the potential length of a competency assessment or any subsequent appeals procedure, but it is reasonable to assume that the length of pre-trial detention might be prolonged if the applicant were to assert these rights. Finally, the Court notes with concern the complete absence of any information about the consequences for the applicant if the district judge were to find that he was not fit to stand trial. ……………. 55. The Court therefore accepts that if convicted the applicant would have access to medical facilities and, more importantly, mental health services, regardless of which institution he was detained in. Indeed, it recalls that in Ahmad it was not argued that psychiatric care in the US federal prisons was substantially different from that which was available at HMP Long Lartin. However, the mental disorder suffered by the present applicant was of sufficient severity to necessitate his transfer from HMP Long Lartin to a high-security psychiatric hospital and the medical evidence, which was accepted by the First Tier Tribunal, clearly indicated that it continued to be appropriate for him to remain there “for his own heath and safety”. 56. The question in the present case is not whether the applicant can be returned to HMP Long Lartin but whether he can be extradited to the United States of America, a country where he has no ties and where he will face an uncertain future in an as-yet-undetermined institution. Moreover, if there is no guarantee that, if tried and convicted, he would not be detained in ADX Florence, where he would be exposed to a “highly restrictive” regime with long periods of social isolation. In this regard, the Court notes that the applicant’s case can be distinguished from that of Mustafa (Abu Hamza). While no “diplomatic assurances” were given that Abu Hamza would not be detained in ADX Florence, the High Court found on the evidence before it that his medical condition was such that, at most, he would only spend a short period of time there. The Court notes, however, that there is no evidence to indicate the length of time that the present applicant would spend in ADX Florence. 57. Whild the Court in Ahmad did not accept that the conditions in ADX Florence would reach the art.3 threshold for persons in good health or with less serous mental health problems, the applicant’s case can be distinguished on account of the severity of his mental condition. The applicant’s case can also be distinguished from that of Bensaid v. United Kingdom as he is facing not expulsion but extradition to a country where he has no ties, where he will be detained and where he will not have the support of family and friends. Therefore, in the light of the current medical evidence, the Court finds that there is a real risk that the applicant’s extradition to a different country and to a different and potentially more hostile, prison environment would result in a significant deterioration in his mental and physical health and that such a detention would be capable of reaching the art.3 threshold.”
[20]On 15 July 2013 the UK applied for the case to be referred to the Grand Chamber. On 11 September 2013, a panel decided not to refer the case to the Grand Chamber. The decision of the Fourth Section thereupon became final and the rule 39 indication lapsed.

The decision of the Secretary of State in 2013 and the further proceedings

[21]On 12 September 2013 the Secretary of State announced her decision not to withdraw the extradition order. She did so on the basis of further information provided to her by the U.S. Department of Justice on 11 July 2013. She did not invite the claimant or his advisers to make submissions before she made that decision.[22]By a Claim Form issued on 23 September 2013 the claimant sought permission to challenge that decision by judicial review. On 24 September 2013 Irwin J directed that the application for permission be listed in court as a “rolled-up” hearing. This is the hearing of that application. Pending it, Irwin J ordered that the Secretary of State was prohibited from removing the claimant from the United Kingdom.[23]The claimant challenges the decision on two principal grounds: i) The Secretary of State was obliged to, but deliberately did not, afford to the claimant an opportunity to make representations about her proposed decision before she made it. ii) The further information provided by the U.S. Department of Justice added nothing material to the information which the Strasbourg Court had, so that it is impermissible to depart from its conclusion that there would be a violation of Article 3 if the claimant was now extradited to the United States. Subsidiary grounds were also advanced to which it is unnecessary for me to refer.[24]The Secretary of State, supported by the Government of the United States, submits that the new information provided by the Government of the United States fills in the gaps noted by the Strasbourg Court; and by doing so, establishes that the extradition of the claimant would not infringe his rights under Article 3.

The common ground

[25]There is an important measure of common ground between all three parties: i) Notwithstanding the mandatory words of Section 118(2), the Secretary of State has, as applicable to these proceedings, a residual discretion not to extradite the claimant in circumstances in which, since the conclusion of the domestic extradition proceedings, an event has occurred which would make extradition of the requested person incompatible with his Convention rights – the so-called McKinnon jurisdiction: McKinnon v. Government of USA [2007] EWHC 762 (Admin). An amendment to the Extradition Act 2003 has removed this jurisdiction from the Secretary of State; any such claim will in the future have to be raised before the courts. ii) That discretion is engaged on the facts of this case. (Although not the subject of an express concession, I do not understand it to be controversial that the decision of the Strasbourg Court is a subsequent event which gives rise to the occasion for the exercise of the discretion). iii) Our task is to determine, objectively, whether or not the evidence before the Secretary of State and us establishes a real risk that the claimant’s extradition would infringe the claimant’s rights under Article 3: McKinnon paragraph 66. (This is a modest extension of the principle established in McKinnon, impliedly conceded by Mr. Eadie QC when answering the claimant’s first ground of challenge; and by his acceptance of the propriety of our considering the evidence of Dr. Dillon in her report of 26 March 2014, a report that was not before the Secretary of State when she made her decision). iv) Despite the non-standard words used by the Strasbourg Court in paragraph 57 of its judgment, it was in fact applying the standard Article 3 test in a foreign case: are there substantial grounds for believing that the extradition of the claimant to the United States would give rise to a real risk of inhuman or degrading treatment in the United States of such severity as to put the United Kingdom in breach of its obligations to the claimant under Article 3? v) The approach which we should adopt is the same as that in fact adopted by the Strasbourg Court. Our task is to discern whether or not the new information would, applying the reasoning adopted by the Strasbourg Court, have produced a different result if it had been before that court. vi) The claimant suffers from an enduring mental disorder, paranoid schizophrenia, which is well controlled by the medication and treatment regime currently available to him at Broadmoor Hospital. vii) If the claimant were to relapse into the acute psychotic state which he experienced in 2008, the consequences would be of such severity for him as potentially to engage Article 3 (“Such a deterioration would be capable of reaching the Article 3 threshold” in the words used in paragraph 57 of the judgment of the Strasbourg Court).

The issue in the proceedings: what will happen to him if extradited?

[26]The contentious and determinative issue is: what will happen to the claimant if he is extradited?[27]Approaching that issue in the same manner as did the Strasbourg Court, as it is common ground we should, the starting point must be its clearly stated reason for holding that there would be a violation of Article 3: “There would be a violation of Article 3…in the event of the appellant’s extradition solely on account of the current severity of his mental condition” (my emphasis). It is the likely impact of extradition and all that it entails on that condition which was central to the Strasbourg Court’s decision and must be to ours.

The present regime for treating the claimant

[28]It is well controlled by the regime currently applied at Broadmoor. The elements of that regime are set out in Dr. Dillon’s report of 26 March 2014:
“In my opinion, the improvement in Mr. Aswat’s mental state, and the reduction in the risk to his own health and safety, is due to the care that he receives within hospital, and this cannot be provided within the prison estate within the UK. Mr. Aswat’s current treatment includes amisulpride (an oral anti-psychotic medication) 400 mg daily and sertraline 50 mg (an anti-depressant). Mr. Aswat has previously completed the Understanding Mental Illness Group and is provided with ongoing one-to-one psychology sessions by the ward psychologist each month. Mr. Aswat occupies his time by attending off ward areas, including the workshops within the hospital and the Education Department, where he is undertaking an Open University Degree. Mr. Aswat holds green ground access which allows him to access the terrace, an area within the secure perimeter of the hospital where patients can walk, gain fresh air and socialise. With regard to social support Mr. Aswat currently receives regular visits from his family which he values. Mr. Aswat cites his family and religion as positive factors in ensuring that he does not feel hopeless about the future.”
These views are consistent with those which she expressed to the First Tier Tribunal, who accepted her evidence in its decision of 11 November 2011.[29]As is apparent from that citation, in Dr. Dillon’s opinion, medication is an important and necessary factor in the treatment of the claimant’s condition, but it is not the only one. Other factors, including the ability to make use of the educational and recreational facilities of the hospital and regular visits from his family, are also significant.[30]The next question to be considered is what would be the effect of removing him from that regime? In part, the answer depends upon the nature of the regime to which he would then be subjected; but only in part. In the same report, Dr. Dillon has expressed a clear opinion about the first part of this issue:
“Without all of the interventions described above, [i.e. those cited above] I believe it would be very likely that Mr. Aswat would experience a relapse in his mental state and as a result his health and safety could be significantly at risk.”
She also addressed, as she did before the First Tier Tribunal, the risks to the claimant’s mental condition if removed to a prison such as Long Lartin, “When considering the likely consequences of a transfer to prison the best evidence comes from his previous response to being in a prison environment, which resulted in his first psychotic episode. This occurred within an environment where there was a Mental Heath In-reach Team, with professionals who could assess and treat his mental state, if he were willing to engage.” As a result of overnight research on the internet, Mr. Eadie has sought to establish that the facilities for the diagnosis and treatment of severe mental health conditions at Long Lartin may be inferior to those available within detention facilities in the United States. I will deal later with the latter; but I can see no reason to doubt or depart from Dr. Dillon’s description of the environment at Long Lartin – an environment which, in her view, clearly included significant mental health provision.[31]I am satisfied that Dr. Dillon’s evidence establishes, at a minimum, that removal from Broadmoor (or an equivalent hospital with a similar regime) to a prison, even one with significant mental health provision, would put the claimant at risk of relapse into an acute psychotic state.

The likely treatment of the claimant in the United States

[32]The next question to be addressed is, what would happen to the claimant in the United States? Some of the uncertainties referred to by the Strasbourg Court in paragraph 52 of its judgment have been addressed. (It is hardly surprising that the Court was not fully informed about the pre-trial conditions of detention because none of the questions which it raised of the UK Government were addressed to that issue). The letter from the U.S. Department of Justice dated 11 July 2013 did address the issue: if the claimant’s condition can be managed in a pre-trial facility, he would in all likelihood be housed in the pre-trial facility closest to the court: The Metropolitan Correctional Centre (“MCC”) in New York. If it could not be managed there, he would “likely” be housed in a Bureau of Prisons (“BOP”) Psychiatric Referral Center. In MCC he would have access to mental health services. The facilities for managing his schizophrenia, which were described to the Strasbourg Court in the Department of Justice letter of 8 May 2012 would apply pre-trial as well as well as post-conviction. The Strasbourg Court quoted extensively from the letter in paragraph 27 of its judgment, but made little more than oblique reference to it when expressing its assessment: the only possible reference is in paragraph 57, “a different and potentially more hostile prison environment”. I draw the following conclusions from the Department of Justice’s description of pre-trial conditions and those which would obtain post-conviction if the claimant were transferred to a standard BOP facility not ADX Florence. The claimant would be admitted to MCC. On admission, he would immediately be assessed by health service staff including, because of his condition, a doctoral level psychologist. He would be classified based on his mental health treatment needs. In the first instance, they would be met within MCC. He would be provided with appropriate, but different, medication from that prescribed at Broadmoor. If he was assessed as being or became “acutely mentally ill” he would be transferred to a BOP Psychiatric Referral Centre for acute psychiatric care, defined as “care, including but not limited to, crisis intervention for inmates who are persistently suicidal, homicidal, or unable to function in the institution without creating a dangerous situation due to their mental illness”. Such in-patient services are “generally brief, with the goal of returning the inmate to a level of functioning that would allow him or her to return to the designated institution”. If seriously, but not acutely, mentally ill, the claimant would be placed in one of the BOP’s residential mental health treatment “programs”, which I do not understand to refer to a Psychiatric Referral Centre, but to a programme within a detention facility. In-patient admissions (i.e. to a BOP Psychiatric Referral Centre) are made “only as necessary to manage brief psychiatric emergencies”. The BOP’s practice and policy for inmates diagnosed with schizophrenia is to manage and treat them in general prison population settings.[33]Inevitably, there are still detailed gaps about the precise circumstances in which the claimant would be detained in MCC. We do not know whether he would be housed in a single cell; and if so, for how long in every 24 hours. Nor do we know what opportunities for contact with others and for undertaking the types of educational and recreational facility available to him at Broadmoor would be. Stringent criticisms of the conditions of detention have been made by Gareth Peirce, who has visited some of those extradited to the United States following the rejection of their applications by the Strasbourg Court in Ahmad v. UK [2013] 56 EHRR 1. A bleak picture of conditions at MCC is painted by Joel Sickler, a criminologist who has visited and reported upon numerous federal prisons over 30 years. Their reporting of conditions at MCC is controversial; and for my part, I would not be willing to reach any final determination without giving the Government of the United States the opportunity to provide detailed evidence in reply. For present purposes, it is, in my judgment, not necessary to reach a final decision on their descriptions of conditions at MCC. All that it is necessary to observe is that it is a prison, of which the primary purpose is to detain those awaiting trial on serious charges. It is not an institution whose primary function is to treat and care for those with serious mental health problems.[34]Dr. Dillon set out her understanding of the conditions in which he would be detained at MCC in her report of 26 March 2014:
“I am guided by the information provided by Mr. Aswat’s legal team about the conditions within MCC and how they are vastly different to those that he is used to within Broadmoor Hospital. I understand he would largely be held in solitary confinement, with little access to items or contact with others. The function of the facility is of course very different to the therapeutic milieu provided by a hospital, but it is precisely the environment that is provided by a hospital, in conjunction with the medication and therapeutic inputs that are essential to preventing a relapse. Social isolation was a feature of Mr. Aswat’s illness while in HMP Long Lartin and this preceded the development of florid psychotic symptoms and therefore it is possible that this contributed to his further deterioration. One of the treatment focuses within Broadmoor Hospital has been to ensure Mr. Aswat is occupied and engaged in activities, as this is known to be an important part of rehabilitation for patients with a severe and enduring mental illness, such as schizophrenia. I would be concerned that the sudden experience of being isolated with a lack of stimulation could prompt a relapse at a time that he would already be stressed due to his legal predicament and without mental health service support. Ordinarily, if a patient were to be transferred under the care of a new team there would be a detailed multi-disciplinary handover process and careful planning, which would include developing contingency plans for managing a future relapse.”
[35]We have not been told precisely what Dr. Dillon was told about conditions at MCC. Hence, I suspect, her laconic and cautious description, which focuses upon solitary confinement and lack of contact with others; and her emphasis on the difference between the function of the facility and the therapeutic milieu provided by a hospital. Her concern about the withdrawal of an important part of rehabilitation for a patient with schizophrenia is based on that consideration. On any reasonable reading of her conclusions, removal from hospital conditions to a prison will, in her opinion, at a minimum put the claimant’s health at real risk of severe deterioration. My understanding of the judgment of the Strasbourg Court is that that was its principal focus, hence the wording of paragraphs 55 and 57. Adopting the same approach as the Strasbourg Court to the information that we now have, I would reach the same conclusion.[36]The Department of Justice’s letter of 11 July 2013 does address the other uncertainties to which the Court referred in paragraph 52: on the basis of the trials of others in a similar position to that of the claimant, he will be held in pre-trial detention for no more than about 18 months; if his competency is in issue, he will be hospitalised for treatment for a maximum period of four months for assessment; if assessed to be unfit, he will be committed to the custody of the Attorney General and, by him, to a Psychiatric Referral Centre and, ultimately, will be subject to civil commitment; unsurprisingly, the exact time that this process will take is fact specific and difficult to estimate in advance. These are, however, second order considerations: it is not suggested that the claimant is, in his present condition, incompetent (unfit to plead in English legal language); and it is highly likely that he would only become incompetent if, as a result of the conditions in which he was detained, he relapsed into an acute psychotic state. Thus, the answer to the principal question determines the answers to the remaining questions.[37]The letter also deals with the Court’s concerns about the possible transfer of the claimant to ADX Florence post-conviction: if “it is determined that he is unable to manage his activities or daily living by himself (including his taking of prescribed medication) it is highly unlikely that he would be placed at the ADX, but rather, at a medical center”. A similar statement satisfied the Court in the case of Abu Hamza, whose physical difficulties precluded long-term incarceration in ADX Florence, that he would not be sent there for more than a short period. I would have expected it to have given the same answer in the claimant’s case, had this statement been contained in the letter of 8 May 2012.[38]The only means which I can see by which the basic concerns of the Strasbourg Court can be answered are that the United States offers an assurance to the Secretary of State that, upon arrival in the United States, the claimant will immediately be transferred to a Psychiatric Referral Centre and kept there unless and until the equivalent of his treating clinician, Dr. Dillon, determines that he could be transferred to another institution without compromising his health and safety; and if not, that he will be kept at a Psychiatric Referral Centre until trial. His extradition would have to be preceded by detailed discussions and the exchange of information between Dr. Dillon and the receiving psychiatrist. By those means, the real risk of relapse into an acute psychotic state which formed the basis of the Strasbourg Court’s decision would be removed.[39]Given the conclusions expressed above, it is strictly unnecessary for me to express any view about the claimant’s first ground of challenge – the lack of opportunity to make representations before the decision was made. The tight timetable imposed by Section 118(2) made it difficult, but not impossible, for prior consultation to occur. If the claimant required more than a few days at most in which to make representations, he would have had expressly to have accepted that reasonable cause existed for extending the 28 day deadline for extradition. In any event, the question is academic, because, as required by McKinnon, we have had to consider for ourselves whether or not the claimant’s rights under Article 3 would be infringed if he were to be extradited; and the claimant has had every opportunity to present his case on that issue to us. I would, on balance, have held that the Secretary of State was under no duty to give the claimant the opportunity of making representations to her before she made the decision under challenge.[40]For the reasons given, I would give permission for this judicial review claim, allow it, and quash the decision of the Secretary of State of 12 September 2013. The claimant does not seek in Section 7 of the Claim Form, any remedy beyond an order prohibiting the Secretary of State from removing the claimant from the UK until his application for judicial review of that decision has been considered by the Court. It has not been suggested that we should preclude the Secretary of State from making a fresh decision if further information or assurances are provided by the Government of the United States within the tight timetable imposed by Section 118. I would therefore be minded to grant no relief beyond a quashing order. I agree with the Lord Chief Justice’s proposal to adjourn the final decision in this matter for 60 days for the Government of the United States to consider whether or not it wishes to give the assurances outlined in paragraph 38.

Lord Thomas of Cwmgiedd, CJ:

[41]I agree entirely with the full and comprehensive judgment of Mitting J. There are four observations that it is important to make:

The effect on this court of the decision of the Strasbourg Court

[42]As Mitting J has set out at paragraph 25 iv), there was no dispute about the applicable legal principle. The issue therefore before the Strasbourg Court was essentially an issue of fact – were there substantial grounds for believing that the extradition of the claimant to the United States would give rise to a real risk of inhuman or degrading treatment in the United States of such severity as to put the United Kingdom in breach of its obligations to the claimant under Article 3?[43]In the course of his submissions to us, Mr Eadie QC was careful to make clear that the Secretary of State did not wish us in any way to go behind the approach or any of the findings of the Strasbourg Court. We were therefore constrained by the approach and the findings made in the judgment of the Strasbourg Court as Mitting J has made clear at paragraphs 25 v), 27 and 35. I wish to stress that I have come to the conclusion that we have reached only because of the approach taken by the Strasbourg court to this particular case and what that court considered was required in respect of this particular claimant by the application of the agreed principle under Article 3.

Dealing with the mental illness of a requested person

[44]As is evident from the judgment of Mitting J, the entire dispute arose out of the way in which the claimant’s acknowledged serious mental illness should be dealt with. As long ago as April 2012, a suggestion was made by the head of the casework team at the Mental Health Casework Section of the Ministry of Justice to Dr Claire Dillon, the clinician responsible for the claimant, that she might liaise with a possible treating team in the United States. She indicated her willingness to do so if she could be provided with the necessary contact details for the clinician in the United States who would be responsible for the claimant. To my deep regret, nothing was done to pursue this common sense approach. Such inaction must not happen again.[45]Where therefore extradition is sought by a state not within the European Union of a requested person whom it is agreed is suffering from a serious mental illness, the following should take place: i) The clinician in such a requesting State who will be responsible for the requested person if extradited should liaise with the clinician responsible for the requested person in England and Wales to attempt to resolve the issues as to the appropriate treatment if extradited. ii) As the disputes in such cases generally relate to the appropriate nature and location of the treatment of the requested person, if extradited, a great deal of the factual dispute should be capable of agreement between responsible clinicians. iii) If such issues cannot be resolved between the clinicians, they should be able to identify the points of difference so that the court can receive the necessary evidence and itself resolve the issues. This is the process followed in relation to expert evidence. It should be followed in cases where it is common ground that the requested person is suffering from a serious mental illness.

Fact finding

[46]This case involved an intensive and difficult fact-finding exercise. I would respectfully venture to suggest that for the future such fact finding exercises are best undertaken by a national court. A national court is much better equipped to hear the evidence and clarify difficulties through a trial process conducted by a national judge, with questioning of the relevant witnesses in that process, if necessary. The approach that I have set out in the preceding paragraph in respect of a person whom it is agreed has a serious mental illness is but one example of the procedural processes which a national court can deploy to ascertain the facts. This case illustrates, therefore, a real and substantial difficulty that can arise when such a fact-finding exercise is undertaken by the Strasbourg Court in place of the national court.

Provision of assurances

[47]In the light of the conclusion which we have reached, it is necessary to refer to the request made on behalf of the Home Secretary that we should allow some time for the United States to consider whether it wished to give the kind of assurances envisaged in the judgment of the Strasbourg Court.[48]I agree with the view Mitting J expresses at paragraph 38. In my judgment it would be appropriate to accede to this request and to postpone the final decision in this matter for a period of 60 days for the Government of the United States to consider whether it wishes to give the assurances outlined by Mitting J at paragraph 38.[49]It is entirely a matter for the Government of the United States whether they wish to give any such assurances but it seems to us that it is only with the provision of such assurances that, in the light of the judgment of the Strasbourg Court in this particular case, extradition of the claimant would be compatible with Article 3.

Cited in 1 later judgment