Case No: CO/12092/2011
Neutral Citation Number: [2012] EWHC 3317 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 28/11/2012

Before :

LADY JUSTICE RAFFERTY
MR JUSTICE KENNETH PARKER

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Between :

	GUY SAVAGE	Appellant	
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	UNITED STATES OF AMERICA	Respondent	

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Mr Edward Fitzgerald QC and Mr Ben Cooper (instructed by Kingsley Napley LLP) for the Appellant
Mr Peter Caldwell (instructed by The Crown Prosecution Service) for the Respondent

Hearing date: 16 November 2012
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Judgment
Mr Justice Kenneth Parker : 
Introduction
1.	The United States of America seeks the extradition of the Appellant, Guy Savage, as an accused person for conduct which would constitute offences of fraudulent evasion of a restriction on the import and export of firearms and firearms components.  The United States is a Category 2 territory and Part 2 of the Extradition Act 2003 (“the Act”) applies.
2.	On 30 November 2011 District Judge Nicholas Evans sent the Appellant’s case to the Secretary of State for the Home Department for her decision whether to order the Appellant’s extradition.  This is an appeal against the decision of the District Judge.
3.	Before the District Judge the Appellant was not represented, legal aid having been withdrawn.  He pursued a number of arguments which were plainly hopeless and which have not been renewed in this Court, where he has been expertly represented by Mr Edward Fitzgerald QC and junior counsel.  However, there was before the District Judge a report of Dr Susan Thompson, a consultant psychiatrist.  She had concluded that the Appellant was suffering the effects of post traumatic stress disorder and from a severe depressive episode, ICD-10 code F32.2.  In her opinion, he was at high risk of completed suicide, if he were extradited to the United States, especially if he lost regular contact with his daughters.  Dr Thompson gave oral evidence and was cross-examined.
4.	The District Judge rejected Dr Thompson’s evidence in forthright terms.  In his judgment, Dr Thompson had allowed herself to lose the dispassionate and professional approach to be expected of an expert psychiatric witness in extradition proceedings.  The District Judge found her unconvincing and he neither trusted her judgment nor her conclusions.
5.	On this appeal I do not believe that it would serve any useful purpose to examine closely the circumstances of the proceedings before the District Judge, exploring, for example, why the Appellant pursued arguments that were plainly without merit, or why he had come to represent himself.  Nor do I believe that it would be appropriate critically to seek to assess the validity of the District Judge’s rejection of Dr Thompson’s evidence.  Mr Fitzgerald frankly accepted in argument that he could not realistically expect to persuade this Court that, as the case was presented to him, the District Judge “ought to have decided a question before him at the extradition hearing differently” (section 104(3) of the Act).  The Appellant can succeed only if the Court is satisfied that there is now evidence available that was not available at the extradition hearing which “would have resulted in the judge deciding a question before him at the extradition hearing differently” (section 104(4) of the Act).
6.	Mr Fitzgerald submits that there is such evidence now available and that, in the light of that evidence, it would be unjust or oppressive to extradite the Appellant (section 91 of the Act) and/or a breach of his rights under Article 8 ECHR.  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 these is sufficient.  It is not necessary to enumerate these circumstances, as they will inevitably vary from case to case.  The citation of decisions which do no more than restate the test under section 91 or apply the test to facts is strongly to be discouraged (see the President of the Queen’s Bench Division, giving the judgment of the Court, in The Government of the Republic of South Africa v Dewani [2012] EWHC 842 (Admin), at paragraph 73).
The Issues
7.	There are, therefore, three issues on this appeal:
i)	is the evidence upon which the Appellant now seeks to rely admissible?
ii)	if so, would it be unjust or oppressive to extradite the Appellant, and/or
iii)	would it be a breach of his rights under Article 8 ECHR to extradite him?
8.	For reasons that will become apparent, the first issue is not independent but merges with the second and third issues.
Issue 1:  The Admissibility of the Evidence
9.	As to the criteria for the admission of further evidence, in Three Hungarian Judicial Authorities v Roland Fenyvesi Kalman Fenyvesi [2009] EWHC 231 (Admin) (“Fenyvesi”), Sir Anthony May, at paragraphs 32 and 35 found:
“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.
…
35. Even for defendants, the court will not readily admit fresh evidence which they should have adduced before the district judge and which is tendered to try to repair holes which should have been plugged before the district judge, simply because it has a Human Rights label attached to it. The threshold remains high. The court must still be satisfied that the evidence would have resulted in the judge deciding the relevant question differently, so that he would not have ordered the defendant's discharge. In short, the fresh evidence must be decisive.”
10.	In Fenyvesi, at paragraph 34, Sir Anthony May set out the effect of the Human Rights Act 1998 on the interpretation of the appeals provisions in the 2003 Act, referring to the judgment of Latham LJ in Miklis v Lithuania [2006] EWHC 1032 (Admin):
“34. Section 29(4) of the 2003 Act is not expressed in terms which appear to give the court a discretion; although a degree of latitude may need to be introduced from elsewhere. As Latham LJ said in Miklis, there may occasionally be cases where what might otherwise be a breach of the European Convention on Human Rights may be avoided by admitting fresh evidence, tendered on behalf of a defendant, which a strict application of the section would not permit. The justification for this would be a modulation of section 29(4) with reference to section 3 of the Human Rights Act 1998.”
11.	Fenyvesi is equally applicable to appeals under Section 104(4):  see Richen Turner v Government of the United States of America [2012] EWHC 2426 (Admin) (“Turner”), by Aikens LJ at paragraph 31.
12.	Mr Peter Caldwell, on behalf of the Respondent, contends that the further evidence was either available before the District Judge or at least could have been made available by the exercise of due diligence.  In particular, the Appellant in this appeal has relied heavily on a further medical report from a second consultant psychiatrist, Dr Forrester.  Dr Forrester states the same conclusions as that reached by Dr Susan Thompson regarding the Appellant’s clinical depression and high risk of suicide, but the manner in which Dr Forrester has reached his conclusions makes his evidence significantly less vulnerable to the well founded criticisms made by the District Judge of Dr Thompson’s evidence.  Mr Caldwell submits that, with the exercise of reasonable diligence, Dr Forrester’s evidence could have been put before the District Judge.
13.	I see considerable force in Mr Caldwell’s submission.  It seems to me as a general rule that if a party to extradition proceedings relies upon an expert witness and the chosen expert is discredited or substantially undermined at the extradition hearing, the party in question cannot reasonably expect to repair the damage on appeal by calling a further expert, who would furthermore have the advantage of knowing what had happened below so as to appreciate how most effectively to shore up the deficiencies exposed in the earlier expert evidence.  However, without wishing to give encouragement to parties in future appeals, I was ultimately persuaded that I should not exclude the further evidence by reason only of the circumstance that it might with reasonable diligence have been made available before the District Judge.  I am prepared to accept that, given how matters had proceeded below and the Appellant’s depressive condition, the further evidence might not reasonably have been available and that in any event the Court would be disinclined to rule out on the above basis up-to-date and competent medical opinion regarding the nature and extent of suicide risk in the context of an appeal under Section 91 of the Act.  However, that leaves out of account the critical and necessary condition of whether the further evidence is “decisive”, to which I now turn.
Issue 2: In the Light of the New Evidence, Would it be Unjust or Oppressive to Extradite the Appellant?
14.	The relevant principles where it is alleged that the risk of suicide would render extradition oppressive have been recently set out in Turner, by Aikens LJ, at paragraph 28.
 “There have been a number of cases in which the courts have considered what has to be established under section 91 of the Act (or the equivalent section in respect of an application for surrender under Part 1 of the Act, which is section 25 ) in order that a court may be satisfied that it would be unjust or oppressive to return a person to the state requesting extradition, because of the risk of suicide if the order to return were made. The relevant cases, which were recently examined with care by Bean J in Marius Wrobel v Poland [2011] EWHC 374 at [17] establish the following propositions: 
(1) the court has to form an overall judgment on the facts of the particular case: United States v Tollman [2008] 3 All ER 150 at [50] per Moses LJ. 
(2) A high threshold has to be reached in order to satisfy the court that a requested person's physical or mental condition is such that it would be unjust or oppressive to extradite him: Howes v HM's Advocate [2009] SCL 341 and the cases there cited by Lord Reed in a judgment of the Inner House. 
(3) The court must assess the mental condition of the person threatened with extradition and determine if it is linked to a risk of a suicide attempt if the extradition order were to be made. There has to be a “substantial risk that [the appellant] will commit suicide”. The question is whether, on the evidence the risk of the appellant succeeding in committing suicide, whatever steps are taken is sufficiently great to result in a finding of oppression: see Jansons v Latvia [2009] EWHC 1845 at [24] and [29]. 
(4) The mental condition of the person must be such that it removes his capacity to resist the impulse to commit suicide, otherwise it will not be his mental condition but his own voluntary act which puts him at risk of dying and if that is the case there is no oppression in ordering extradition: Rot v District Court of Lubin, Poland [2010] EWHC 1820 at [13] per Mitting J. 
(5) On the evidence, is the risk that the person will succeed in committing suicide, whatever steps are taken, sufficiently great to result in a finding of oppression: ibid . 
(6) Are there appropriate arrangements in place in the prison system of the country to which extradition is sought so that those authorities can cope properly with the person's mental condition and the risk of suicide: ibid at [26]. 
(7) There is a public interest in giving effect to treaty obligations and this is an important factor to have in mind: Norris v Government of the USA (No 2) [2010] 2 AC 487.”
15.	The further evidence bearing on this issue is as follows.
16.	Dr Andrew Forrester BSC (Hons) MB CLB FRCPsych is a consultant psychiatrist and honorary lecturer in psychiatry.  He has provided a report dated 29 April 2012 regarding the mental health of the Appellant.  On consideration of papers relating to the medical and legal position of the Appellant and following a consultation with him, Dr Forrester stated:
“…11.1  In my opinion there is evidence that Guy Savage has developed a number of depressive symptoms during the period since his arrest.  These include pervasive and sustained depressive mood, sleep disorder with evidence of early morning waking, diurnal variation of mood, reduced concentration, interest and enjoyment, with additional hopelessness, worthlessness, reduced motivation and recurrent suicidal ideas.”
17.	Dr Forrester considered that the Appellant met the criteria for a diagnosis of severe depressive episode.
18.	Dr Forrester believed that the Appellant’s depressive symptoms were likely to have developed in the period since his arrest and during extradition proceedings, the extradition proceedings acting as a prominent maintaining factor although other factors should be considered as contributory, including the ongoing divorce proceedings in which the Appellant is engaged, the loss of his business and financial standing and his separation from his children.  Dr Forrester considered that, in the event of extradition further separation from his children could, “further exacerbate his depressive symptoms and risk of suicide”.
19.	In respect of patients with a diagnosis of a severe depressive episode, the World Health Organisation’s International Classification of Diseases (ICD-10) stated that “suicidal thoughts and acts are common”.  Dr Forrester observed that depression increases the risk of suicide.  In general, those who express suicidal intentions are thought to present the highest clinical risk.
20.	Dr Forrester observed that the Appellant had “fluctuating suicidal ideas in the period since his arrest in early 2011”.  Dr Forrester referred to an alleged occasion when the Appellant attempted to self-harm or commit suicide whilst in HMP Wandsworth.  On consultation with the Appellant, Dr Forrester:
“… formed the impression that he meant that he would kill himself rather than be extradited to the United States and I thought his lack of willingness to discuss this further, or to report his thoughts, was concerning in this regard.”
21.	Dr Forrester concluded:
“In my opinion, Guy Savage should be considered at high risk of suicide or serious self harm should the court order his extradition to the United States.
…
Should the decision be made to extradite Guy Savage, I would be concerned about his potential for completed suicide in the period between the decision and his removal, or even during transit.  In the event that he should be successfully extradited, I am of the opinion that a risk of suicide would remain and would require close onward monitoring.”
22.	Dr Brewerton MB MS MRCGP DRCOG is the Appellant’s treating doctor who has been seeing him since 17 February 2011.  Dr Brewerton stated that the Appellant is under severe stress which has resulted in an episode of moderately severe depression.  Dr Brewerton prescribed Temazepam tablets to the Appellant on 23 May 2011 and an anti-depressant in June 2011.  Dr Brewerton thought that such medication would have little effect on the underlying stress causing his current situation.
23.	Dr Fairburn is a clinical psychologist in adult mental health, with particular experience of working with people who have suffered from psychological trauma.  Dr Fairburn has worked with the Appellant at the Central and North West NHS Foundation Trust since March 2012.  He has met the Appellant every week since 16 May 2012.  For reasons similar to those given by Dr Forrester, Dr Fairburn’s view was that the Appellant was at a high risk of committing suicide if he was extradited to the United States.
24.	There were also before the Court witness statements from the Appellant’s mother, from two sisters of the Appellant and from an individual who had known him for about 15 years.  These statements all spoke to the Appellant’s severely depressed moods and to the stress and anxiety occasioned by the extradition process.
25.	In the present context there was also expert evidence from the United States regarding the prospect of pre-trial detention, the conditions of such detention, the extent of prosecutional discretion, the incidence of plea bargaining and pressure to accept guilt, and the conditions of post-conviction and post-sentencing confinement.  It seemed to me that the principal purpose of this material was to reinforce the clinical evidence:  it was intended to show that the conditions that the Appellant could expect to face in the United States were very unfavourable, that his anxieties about the future were fully understandable and that this particular background gave extra credence to the psychiatric view that he was at high risk of suicide if extradited.  One of the experts, Mr Dratel, specifically addressed the quality of medical care in the United States Bureau of Prisons (“BoP”) facilities, and said inter alia:
“A full analysis of the quality of psychiatric care offered by BoP – or, more accurately, the abject lack thereof – is difficult to perform because the system lacks transparency.  It also lacks sufficient funding for medication or regular therapeutic treatment of inmates who clearly would benefit from regular and professional psychiatric care that focused on helping the inmate rather than simply ensuring he is submissive to prison authority and not a threat to security.”
Discussion
26.	The key question is:  does the further material, including, in particular, the report of Dr Forrester, amount to decisive evidence such that the District Judge would have concluded, if he had had it before him, that the mental health of the Appellant was such that it would be oppressive to extradite him.  The following factors, in my view, are the most important.
27.	First, there is no history in this case of episodes of actual self-harm.  Although Dr Forrester referred to suicide “attempts”, the only alleged episode of self harm was that mentioned by the Appellant himself.  The Appellant’s account was not corroborated by any other eye witness, and it appears that the alleged episode was not communicated in any way to the prison authorities, so as to appear in any prison record or at the time to activate measures of special vigilance.  It is, therefore, necessary to be very cautious before accepting the Appellant’s own account of this alleged single episode.  Apart from that alleged episode, the Appellant has not made any attempts towards suicide during the whole period of the extradition proceedings.  Dr Brewerton has been treating the Appellant since February 2011.  Dr Fairburn, the clinical psychologist, has been working with the Appellant since March 2012 and has met with him every week since 16 May 2012.  Neither of them has reported any attempts at suicide or of serious self harm.
28.	Secondly, Dr Forrester (and, for that matter, Dr Thompson) did not find any psychotic symptoms.  The Appellant told Dr Forrester that he did not have any immediate plans to kill himself.  The Appellant said, “I’m not going to America”.  Asked if he intended to kill himself if he was extradited to the United States, the Appellant did not give a direct affirmative or negative answer, but said that he would “rather make the point here”.  On the evidence in this case the Appellant, notwithstanding his having a depressive illness, clearly retains a substantial capacity for rational thought, including substantial capacity to exercise a choice whether to make an attempt to take his own life.  That capacity to exercise choice may be affected by distortions in his thinking attributable to his depression, but it remains real and substantial, and is relevant to the question whether it would be oppressive to extradite him.
29.	There is a third factor which is related to the preceding one.  In Turner, there was a report by Dr Ian Cummings, consultant forensic psychiatrist.  Dr Cummings was very experienced in dealing with vulnerable patients within the criminal justice system.  He pointed out that where prisoners are in custody awaiting trial or sentence they often say that if convicted or if they get a certain sentence then they will end their life.  The expressed intention is a reflection of the stress that surrounds uncertainty, but once there is the certainty of the decision, the risk can diminish or resolve (see paragraph 47 of Turner).  In this case Dr Forrester has been reliant upon what the Appellant has himself said about his mental state and about what he might do if extradited to the United States.  In my judgment, and with respect to Dr Forrester, I do not believe that he has given sufficient weight to the important element elucidated in Turner.  The Appellant is faced with the same stresses and uncertainties as are referred to at paragraph 47, which may well at the moment suggest a significant risk of suicide, but which, as experience confirms, frequently reduce or are tolerated, at the same time substantially lowering or eliminating any suicide risk.
30.	Finally, the United States has proper facilities to cope both with the Appellant’s depressive illness and the risk of his attempting to commit suicide if extradited.  The Respondent produced to the Court a letter dated 14 November 2012 on behalf of the director in the Criminal Division of the US Department of Justice.  The letter states that the Department of Justice spoke with the Administrator of Psychological Services at the Central Office of the BoP in Washington DC.  According to the Administrator, the BoP maintains facilities across the United States that provide mental health evaluation and treatment to inmates, and every BoP facility has a trained psychologist to provide assistance to inmates with mental health needs.  Specialised treatment and evaluation include suicide prevention and treatment for inmates at risk.  BoP’s suicide rate is lower than that of the United States population as a whole.  In his evidence Mr Dratel referred to some of his own experiences within BoP facilities regarding mental health treatment.  However, the evidence from the Department of Justice shows that BoP is fully alive to the need to cater for mental illness in its facilities, and that it has made arrangements and designed programmes for that purpose.  There is no evidence of any systematic failure to cope adequately with the problem of mental health of inmates, and the fact that the suicide rate in BoP facilities is lower than the average tends to allay any concern that there is any such systematic failure.
31.	Having regard to the foregoing factors, and in the light of the evidence in this case, I cannot conclude that the Appellant’s current mental condition, as diagnosed by Dr Forrester, would give rise to the extradition being either unjust or oppressive by reason of that mental condition.  All the evidence that is now before the court is not “decisive” in the sense required by the applicable case law relating to the admission on appeal of further evidence.
Issue 3:  Article 8

32.	Article 8 provides: 
“8(1) Everyone has the right to respect for his private and family life, his home and his correspondence. 
8(2) There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. ”
33.	The Supreme Court has clarified the test to be applied in extradition matters involving Article 8. In Norris v. The Government of the United States of America [2010] 2 WLR 572. At paragraph 62, Lord Phillips stated: 
“The judge then has to consider a considerable number of possible statutory barriers to extradition. These include the matters that might violate human rights to which I have referred at para 4 above. It is only after he has done this that the judge has to consider whether extradition will be compatible with Convention rights pursuant to section 87 of the 2003 Act. This is a fact-specific exercise, and 18 the judge must have regard to the relevant features of the individual case. It is at this point that it is legitimate for the judge to consider whether there are any relevant features that are unusually or exceptionally compelling. In the absence of such features, the consideration is likely to be relatively brief. If, however, the nature or extent of the interference with article 8 rights is exceptionally serious, careful consideration must be given to whether such interference is justified. In such a situation the gravity, or lack of gravity, of the offence may be material.”
34.	Lord Phillips went on to reiterate how high the threshold would be. At paragraph 82, he held: 
“In a case such as this it is the exception that proves the rule. One has to consider the effect on the public interest in the prevention of crime if any defendant with family ties and dependencies such as those which bind Mr Norris and his wife was thereby rendered immune from being extradited to be tried for serious wrongdoing. The answer is that the public interest would be seriously damaged. It is for this reason that only the gravest effects of interference with family life will be capable of rendering extradition disproportionate to the public interest that it serves. This is not such a case. Unhappily the delay that has been caused by Mr Norris’ efforts to avoid extradition to the United States has increased the severity of the consequences of that extradition for his family life. But those consequences do not undo the justification that exists for that interference.”
35.	In HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 Lady Hale stated that “exceptionality” is a prediction not a test (at paragraph 8).
36.	As regards Article 8, Mr Fitzgerald again relied heavily on the diagnosis of the Appellant’s mental condition, and the associated risk of his committing suicide if extradited, to contend that it would be disproportionate to extradite him.  However, having rejected the case that it would be unjust or oppressive to extradite him by reason of his mental condition, I am not able to find, in the light of the demanding test under Article 8, that it would be disproportionate to extradite him, even allowing for the fact that the alleged offences for which the Appellant’s extradition is sought, although very serious, are not at the top of the calendar of criminal offences.  In the context of Article 8, Mr Fitzgerald produced a detailed and reasoned note to the effect that the relevant conduct for which the Appellant’s extradition is requested could effectively be prosecuted in the United Kingdom.  Mr Caldwell did not take issue with that analysis, but submitted that it was irrelevant on the facts of this case, given the applicable law on this matter.

37.	In the course of his judgment in Norris, (paragraphs 66 and 67), Lord Phillips considered the significance of the possibility that a prosecution could be brought in the requested jurisdiction: 
“66. At this point I will deal with the other subsidiary issue of principle that has been raised - is it of relevance when considering proportionality that a prosecution for the extradition offence might be brought in the requested jurisdiction? As I have pointed out, the Strasbourg Court gave a positive answer to this question in Soering 11 EHRR 439. There has recently been a spate of cases in which the extraditee has argued that he ought to be prosecuted in this jurisdiction, of which Bermingham [2007] QB 727 was but one. The most recent was R(Bary) v Secretary of State for the Home Department [2009] EWHC 2068 (Admin). References to the others can be found at para 72 of the judgment in that case. In each one the argument was rejected. 
67. Extradition proceedings should not become the occasion for a debate about the most convenient forum for criminal proceedings. Rarely, if ever, on an issue of proportionality, could the possibility of bringing criminal proceedings in this jurisdiction be capable of tipping the scales against extradition in accordance with this country's treaty obligations. Unless the judge reaches the conclusion that the scales are finely balanced he should not enter into an enquiry as to the possibility of prosecution in this country.”

38.	For my part, I believe that this is not a case where the scales are “finely balanced”.  On the contrary, it is a case where it would plainly not be disproportionate for the Appellant to be extradited to the United States and where, therefore, it would not be appropriate to consider whether the Appellant could be prosecuted in the United Kingdom.
Conclusion
39.	For these reasons, I would dismiss the appeal.
Lady Justice Rafferty:
40.	I agree.