This judgment was handed down remotely at 11am on 26 March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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MRS JUSTICE THORNTON DBE
Mrs Justice Thornton DBE:
Introduction
- The Appellant, Lisa Cheeley Eis, is sought by the USA pursuant to a request dated 5 October 2022 and certified by the Secretary of State on 6 March 2023. She is wanted for trial in relation to three offences of theft, false accounting and misuse of information arising from the theft of over $300,000 from the Appellant's employer, a family business. The counts were preferred by the San Diego District Attorney's Office in the State of California.
- On 22 November 2023, following a hearing at Westminster Magistrates Court on 13 – 14 November 2023, District Judge Leong ("the Judge") decided to send the Appellant's case to the Secretary of State. On 15 January 2024 the Secretary of State ordered the Appellant's extradition.
- Permission to appeal was refused on the papers by Sir Duncan Ouseley sitting as a High Court Judge. After a hearing on 24 May 2024, Hill J granted the Appellant permission to appeal and funding for an addendum psychiatric report.
- The three grounds of appeal are that:
i) extradition would constitute a real risk of a breach of Article 3 European Convention on Human Rights ("ECHR"), namely the risk of inhuman or degrading treatment or punishment by virtue of prison conditions for female prisoners in California. The Judge was incorrect to have concluded otherwise.
ii) extradition would be unjust and/or oppressive pursuant to section 91 Extradition Act due to the Appellant's mental health. The Judge was incorrect to have concluded otherwise.
iii) extradition would constitute a disproportionate interference with the Appellant's private and family life under Article 8 European Convention on Human Rights. The Judge was incorrect to have concluded otherwise.
The evidence before the Judge
- The evidence before the Judge comprised:
a. evidence from the Appellant and her children;
b. reports from:
i. Mr Tugushi, a member of the European Committee against Torture and Inhuman or Degrading Treatment or Punishment since 2005;
ii. Dr Chiu, a clinical psychologist;
iii. Dr Yusuf a consultant psychiatrist.
Evidence of the Appellant and children
- The Appellant and her children gave evidence and were cross examined. Their evidence on prison conditions and ties to England is of relevance to the issues raised by this appeal and was summarised by the Judge as follows:
i) the Appellant said she was concerned by the risk of being extradited to the only women's prison in California because her former partner had been arrested for the murder of a sex worker and she feared reprisals from sex worker prisoners (¶24 of the judgment below);
ii) the Appellant knew about conditions in the prison in the USA because she knew people who had been in prison. She accepted that her information was anecdotal (¶34);
iii) the Appellant was aware of an email from her English husband to her solicitors on 9 November 2023 saying their relationship was over. Her relationship with her husband was hanging by a thread due to the extradition proceedings and she needed to be released to save their marriage (¶44);
iv) the Appellant's daughter and son were concerned about the risk to their mother on return to prison. They accepted they had no specific evidence about the risk and their concerns were based on anecdotal evidence (¶¶48 & 53).
The report of Mr Tugushi
- As a member of the European Committee against Torture and Inhuman or Degrading Treatment or Punishment, Mr Tugushi has inspected prisons in Latvia, Greece, Finland, Armenia, Lithuania, Czech Republic, Poland, Sweden, Bulgaria and Moldova. He has not visited any prisons in the USA.
- Mr Tugushi's report deals with a number of aspects of the treatment of prisoners in the Californian system, including overcrowding, sexual abuse, extreme heat and inadequate ventilation. He also addressed the risks specific to the Appellant.
- Given the way the case was presented before me it is only necessary to set out the parts of the report dealing with the use of solitary confinement. At paragraph 18 of the report he said:
"18 The UN Committee against Torture during its 2014 review ……the Committee remained concerned about reports of extensive use of solitary confinement and other forms of isolation in United States prisons…
- At ¶¶49- 57 he said:
"49 Furthermore, standard correctional procedure, such as searches, restraints, and use of solitary confinement, do not take into account the violence, trauma and mental illness the majority of incarcerated women have experienced outside of jail and can reactivate trauma in women who have suffered abuse".
…
"52 Amnesty International (AI), in its 2016 submission to the UN Committee against Torture provided that the USA's use of solitary confinement is unprecedented".
"53 According to the 2017 report prepared by the Physicians for Human Rights an estimated 80,000 inmates in the United States were held in some form of solitary confinement….
…
"56 According to the report published by the American Civil Liberties Union in 2016, recent decades have seen an explosion in the use of solitary confinement in the United States….. Any prisoner or detainee, regardless of age, gender, or physical or mental health, may be subject to solitary confinement. Persons with mental disabilities are dramatically overrepresented in solitary confinement…. Women, vulnerable LGBTI prisoners and immigration detainees are all placed in solitary confinement, both in civil and criminal detention facilities.
"57 Some U.S jurisdictions have taken steps to limit the use of solitary confinement for certain categories of prisoners through legislation, policy or litigation reform.
- At ¶¶58-71 of his report, he quoted extensively from a report called "From Crisis to Care" dated February 2023 including the following:
"70 In 2011, the United Nationals Special Rapporteur on torture stated that the use of solitary confinement…. should be banned as a form of punishment. Still, solitary confinement is used regularly in carceral settings. In women's prisons, people with mental health concerns are often put into psychiatric segregation units rather than provided with needed support, leading to fear of telling prison medical staff about mental health needs. In a 2015 survey conducted by Black and Pink, 85% of the 1,100 LGBTQ incarcerated respondents – and particularly transgender women – reported having been involuntarily put into solitary confinement….."
- At ¶ ¶70-76 he sets out the main risks and concerns related to the extradition of the Appellant:
"72 In case of extradition to the US, Ms. Eis will most probably first stay in a county jail and in case of conviction be transferred to one of the state prisons in California for the female prisoners.
73 Considering the findings and reports of the leading human rights groups operating in the US and internationally, as well as concluding observations of the UN Committee against torture (CAT), UN Human Rights committee (HRC) as well as other sources analysed, Ms. Eis, in case of imprisonment in US risks her rights being violated.
74 Both during her possible imprisonment in the jail as well as in the prison, Ms. Eis risks being detailed in inhuman conditions in the overcrowded, poorly ventilated and overheated facility, being subjected to violence, including of sexual nature, in case of need unable to receive timely medical care. Considering the systemic application of solitary confinement on inmates on different grounds, this risk is present as well.
75 Throughout, none of the international human rights monitoring bodies have access to the Californian prisons. There is no independent monitoring mechanism visiting prisons in California and publishing periodic reports related to the treatment and conditions provided to the inmates.
76 Based on the issues raised above, in case of extradition and detention on remand as well as in case of conviction, Ms. Eis risks being subjected to treatment in violation of Article 3 of ECHR".
The report of Dr Chiu
- Dr Chiu, a clinical psychologist conducted a psychological assessment of the Appellant. His assessment was based on a psychometric assessment and interview with the Appellant; her proof of evidence; the report of Mr Tugushi and letter of instructions from solicitors. He did not have access to the Appellant's medical records. He concluded that in his professional opinion the Appellant displays psychological symptoms consistent with a PTSD presentation with comorbid generalised anxiety symptoms and depressive symptoms (¶5.2.1). Her mental health is likely to affect her experience in a US prison (¶5.3.2). At ¶5.3.2 he expressed the opinion that:
"Extradition to the US prison could mean to her that she will be in greater danger and her future will become more uncertain, these may elevate her PTSD and anxiety symptoms".
Psychiatric report of Dr Yusuf
- Dr Yusuf is a consultant psychiatrist. He is approved by the Secretary of State pursuant to section 12(2) Mental Health Act 1983 as having special experience in the diagnosis or treatment of mental disorders. He interviewed the Appellant on 13 October 2023 and produced a report dated 16 October 2023.
- At ¶¶73 and 74 he expressed the opinion that:
"73…it would appear plausible that the defendant fulfils the criteria for a complex PTSD".
"74 This is on the basis of her experience of emotional and other forms of abuse, in her 23-year marriage, the denouement of that relationship, which culminated in according to her self-report with her son shooting his father – but also in the background of emotionally unstable personality traits from her childhood, which was highly disrupted and full of rejection, abandonment and instability".
- At ¶¶78-82 he expresses the following opinion:
"78 In terms of the potential consequences of extradition, I note the opinion of Mr Tugushi in relation to potential issues around article 3 of the ECHR. It is my opinion, on balance of probabilities, that her mental health condition would deteriorate as a result of an extradition as a result of three factors.
79 The first of these is the likely, if not inevitable, termination of her relationship with a current partner, which appears to have been beneficial in terms of her mental health, particularly in terms of finding herself in a stable and loving relationship.
80 The second is the likely conditions of her incarceration in the US prison system, particularly the state prison in California, and the potential loss of a therapeutic regime both in terms of her PTSD and diabetes.
81 The third relates to the possibility of her ex-husband 'catching up with her' – and more particularly her perception of this, leading to worsening of her anticipatory anxiety, fear of retaliation by him, either directly or by proxy, thus exacerbating her PTSD symptomatology.
82 At present, her complex PTSD appears to be of mild severity, and it is my opinion that this would likely rise to moderately severe were the extradition to go ahead, and she not receive appropriate therapy in the US prison system".
The judgment below
Prison conditions:
- At ¶¶70- 82 the Judge summarised Article 3 ECHR; the key cases interpreting Article 3, including Soering v United Kingdom (1989) 11 EHRR 439. She set out the two-stage approach in Aranyosi & Caldararu [2016] QB 921. She quoted extensively from the judgment in Rae v USA [2022] EWHC 3905 (Admin) (Chamberlain J) assessing the principles on the approach to Article 3 in the context of extradition to the USA. At ¶82 she addressed the Scottish case of Tweedie v the Scottish Ministers [2023] HCJAC 29, relied on by the Appellant, which considered the sexual abuse of female prisoners in US federal prisons in Missouri. The Court in Tweedie concluded that the Appellant had failed to demonstrate a real risk of treatment contrary to Article 3.
- At ¶¶83 – 94 the Judge considered the admissibility of Mr Tugushi's report. She cited the case of Brazuks v Latvia [2014] EWHC 1021 (Admin). She considered the subsequent decision in Vasile Stanciu v Armenia [2022] EWHC 1529 (Admin) and [2022] EWHC 3368 (Admin), concluding that the judgments in Vasile affirmed the approach in Brazuks [¶89]. She considered the case of Chalwa v India [2018] EWHC 1050 (Admin) which the Appellant sought to rely on, concluding at ¶86 that "the High Court was right to consider [Dr Mitchell] an expert".
- At ¶93 she reached the following conclusion about Mr Tugushi's expertise:
"I say that Mr Tugushi is not an expert for the purposes of assessing the Article 3 risks in relation to prisons in the United States. He is not qualified to speak on the prisons in the USA. Mr Tugushi does not even have the benefit of visiting any prisons in the USA such that his observations can be considered as evidence of fact. I rule that his views or opinions as set out in his report are not admissible. His conclusions amount to a review of the open-source material. However, the information provided from such open source material is useful information that I can and will consider when considering whether there is a real risk of a breach of the RP's Article 3 rights".
- At ¶¶96-105 the Judge analysed the open source material identifying each of the paragraphs of Mr Tugushi's report relied on by Counsel. She then quoted extracts from the report 'From Crisis to Care' 2023 which had not featured in Mr Tugushi's report, including the number of prisoners surveyed in compiling the report, the annual investment in prisons by the state of California and the decrease in the population of female prisoners.
- At ¶106 she set out her findings in relation to Article 3. I focus on the findings relevant to the submissions developed during the hearing before me. The evidence from the Appellant and her children was general, speculative and based upon anecdotes from others whom they had not named in court [¶106]. The open source material within Mr Tugushi's report, with the exception of the 2023 report, was of some age [¶110]. There is general evidence of the use of solitary confinement. The 2023 document deals with the experiences of 6 women. Further information was provided by 120 responses to a survey of prisoners. [¶111]. There was no updated information on continuing issues with female prisoners being denied medical treatment (¶112). There was recent evidence that California has had an over 70 % reduction in prisoners in the women's prisons and it is a fact that California has invested over $400 million a year in its women's prisons [¶113].
- At ¶114 she addressed the risk of solitary confinement:
"The RP asserts that she would be at risk of being in solitary confinement and that would cause her mental health problems to become more severe or that she would be at risk of sexual violence. Although the United States of America is not a contracting party to the European Convention on Human Rights and it is not a member of the European Union, it is nonetheless a liberal state with a long history of respect of democracy, human rights and the rule of law. It is unclear to me as to why the RP asserts that she is at risk of solitary confinement when the general information is that the prisoners who are non white females or who are LGBT prisoners are far more at risk of being so treated. As mentioned in the case law, I have to have substantial grounds for believing that the RP would face a real risk of being subjected to solitary confinement that would be equated to torture or inhuman or degrading treatment. This is a stringent test and not one that is easily satisfied. I conclude that I do not have substantial grounds for such a belief that the RP would be subjected to solitary confinement so as to breach her Article 3 rights (114)".
- At ¶116 - 118 she said:
"116 I am certainly of the view that it may not be possible for any prison to eliminate the risk of abuse entirely. As was said in Morrow, the existence of a general risk is not the issue…
117….I am of the view that the RP has not established a real risk that she would be denied medical treatment …..
118 The RP has not established on clear and cogent grounds that there is a real risk of being subjected to inhuman or degrading treatment. Consequently, I do not consider that the Aranyosi procedure arises at all. There is no necessity for me to seek any assurances in such circumstances. The RP fails in her challenge under Article 3".
Section 91 Extradition Act:
- At ¶120 the Judge set out section 91 Extradition Act and the key cases interpreting the section. A person seeking to establish oppression has a high burden, approaching breach of Article 3. There must be an assessment of the implications of the medical question for extradition. Treatment in the requesting state need not replicate treatment in the UK ((Kolanowski v Poland [2009] EWHC 1509 (Admin); Mikolajczyk v Wroclaw District Court [2010] EWHC 3503 (Admin); South Africa v Dewani [2012] EWHC 842 (Admin) and Magiera v Poland [2017] EWHC 2757)).
- At ¶¶127 – 143 the Judge records her findings and conclusions. It was common ground that the Appellant has type 1 diabetes, high blood pressure and high cholesterol and neuropathy. At ¶135 she attaches little weight to Dr Chiu's conclusion that extradition would place the Appellant in a 'greater danger'. His opinions were hampered by his failure to consider the Appellant's medical records and his conclusion was based on the Appellant's self-assessment and Mr Tugushi's inadmissible views on prison conditions.
- At ¶¶136 – 139 the Judge examined the three factors for Dr Yusuf's conclusion that the Appellant's mental health condition would deteriorate on extradition. She gave no weight to Dr Yusuf's view as to the effect of prison conditions given his opinion was based on Mr Tugushi's inadmissible opinions. She also rejected the risk associated with the Appellant's former husband, saying it was "wholly unclear" how her former husband, on remand in custody, would be able to locate the Appellant and take some form of retaliatory action against her [¶139].
- However, at ¶140 the Judge said this:
"I can accept that the RP's mental health condition would deteriorate and that her PTSD would likely worsen if extradition were to be ordered as the RP's distress over the rocky state of her marriage to David Foster is very real. Further the RP is currently still processing the shock that her former husband is charged with a murder that occurred in 1990. She has been informed that he might be investigated for other similar unsolved homicides. I accept that she is extremely distressed and shocked at the thought of having lived 23 years with a man who was accused of a violent murder and who was the father of her two children. I can accept that with the enormity of such shocking information, the RP's PTSD would increase. I am however unable to accept that she would not be able to access therapeutic treatment within a prison in the USA".
- Nonetheless, at ¶¶141 – 142 the Judge said:
"141…the RP has not demonstrated that there will be a difference in the level of treatment and secondly that level of difference in treatment makes it oppressive to extradite her".
"142 As said in the judgment in Magiera, illnesses like diabetes is common and well understood. It is easily treatable with insulin or regulated through diets. The same can be said of the RP's other physical ailments. I classify PTSD with symptoms of depression and anxiety in the same vein in that it is an illness that is treatable with medication and therapy even in a prison environment. The RP's various illnesses are such that extradition would not be unjust or oppressive".
Article 8:
- At ¶144 the Judge directed herself to the relevant well established legal framework (Norris v USA (No2) UKSC 9; HH v Deputy Prosecutor of the Italian Republic [2012] UKSC 25; and Poland v Celinski and others [2015] EWHC 1274 (Admin)). At ¶146 she set out the factors in favour of extradition: the weighty public interest in ensuring extradition arrangements are honoured, the UK should be not be a safe haven (albeit it was not said that the Appellant is a fugitive); the offending is serious; there had been no delay in the investigation; the Appellant does not have dependent children and her relationship with her UK husband is unstable with indications that the marriage is over.
- At ¶147 she set out the factors against extradition: if the Appellant is not extradited her marriage in the UK could be saved; her UK husband is vulnerable; she has been diagnosed with PTSD following an abusive relationship; her former partner has been charged with murder which has exacerbated her PTSD symptoms; the Judge observed that in addition the Appellant appeared to advance as a factor against extradition that not all the money stolen had been used for extravagant living.
- At ¶¶148 – 164 the District Judge makes findings and draws together the factors in the requisite balancing exercise. She accepted the shocking news about the Appellant's partner could exacerbate her PTSD. She dismissed the Appellant's speculative fears that her former partner might track her down. The issue of whether her former partner was to blame for her offending is a matter for the US courts. She expressed doubt about the Appellant's credibility, in particular her failure to disclose an email from her English husband indicating their marriage was over. She accepted that both the appellant and her English partner were struggling with PTSD but concluded that the Appellant's ties with the UK were "very much weakened by the difficulties in her relationship". Her children are adults and do not reside in the UK. There is a weighty public interest in extradition and the offending is serious.
- Drawing together the factors at ¶164 she concluded that:
"Consequently the public interest in extradition will outweigh the Article 8 rights of the RP, David Foster and her children unless the consequences of the interference with family life is exceptionally severe. The claims of the RP's children to a right of emotional support from their mother does not tip the balance in favour of a discharge. I accept that the distress and trauma caused by extradition is severe for both David Foster and the RP but it is not so exceptionally severe as to render extradition disproportionate. I find that it is not disproportionate to extradite the RP".
The fresh evidence
- Before this Court, the Appellant seeks to adduce an addendum psychiatric report from Dr Yusuf dated 20 June 2024. The focus of the report is on the Appellant's reaction and subsequent presentation to the news that her ex-husband had been arrested for the rape and murder of a sex worker in San Diego in 1990 and that a large number of unsolved murder cases had been reopened (¶¶2 and 3 of Dr Yusuf's report).
- At ¶¶28-29 Dr Yusuf concluded:
"28 It is clear, on balance of probabilities, that there has been a reactivation and deterioration of her complex PTSD as a result of the news of her exhusband's arrest. Her other issues remain, and my opinion has not changed in relation to the harnms(sic) of extradition".
"29 She is receiving counselling which is benefit to her in prison, and it is evident that extradition to the US would, on balance of probability, be significantly psychologically harmful to her mental health".
- In the event the Court admits the addendum evidence of Dr Yusuf, the Respondent applies to admit the following fresh evidence:
i) a letter from San Diego County Sheriff's Office, dated 24 February 2025, explaining that medical and health care services are available for individuals in custody with complex PTSD, diabetes and high blood pressure;
ii) a letter, dated 25 February 2025, from the Deputy Chief US Marshal Service Office of International operations confirming that the US Marshalls are able to deal with the Appellant's medical and mental health conditions during any extradition transfer; and
iii) screen shots of social media postings by the Appellant stating how excited she is to be moving back to the USA.
Submissions
Submissions for the Appellant
- On behalf of the Appellant Mr Hepburne Scott submits that the evidence before the Court demonstrates a real risk of a breach of Article 3 ECHR and makes it oppressive to extradite the Appellant.
- In his skeleton argument, Mr Hepburne Scott focussed on evidence of sexual violence against female prisoners but acknowledged in oral submissions the more recent evidence in this regard before the Court in Tweedie v the Scottish Ministers [2023] HCJAC 29. Mr Hepburne Scott also requested the Court take judicial notice of the change of political regime in the USA and the evidence that Elon Musk is making 'swinging cuts to federal budgets'. There was a representative from the US Department of Justice in court who spoke to a representative from the state of California and provided instructions to Ms Brown, who explained that the Appellant is expected to be held in a state prison and state budgets are separate from federal government budgets, following which Mr Hepburne Scott withdrew this submission. His oral submissions focussed on the use of solitary confinement.
- Mr Hepburne Scott submitted the Judge was wrong to exclude the opinion evidence of Mr Tugushi. The authorities in relation to expert evidence in relation to prison conditions are potentially inconsistent. Whilst the case of Brazuks v Latvia [2014] EWHC 1021 (Admin) tends to suggest Mr Tugushi's opinion evidence was not admissible due to his not having visited the relevant US prison, the more recent authority of Chawla v India [2018] EWHC 1050 (Admin)) suggests otherwise. In Chawla, the Court accepted the evidence of Dr Mitchell as expert evidence notwithstanding Dr Mitchell had not visited the relevant prison but on the basis of his general expertise and use of open source materials. The position of Mr Tugushi is directly analogous. Applying Chawla, the Judge was incorrect to treat the opinion evidence of Mr Tugushi as inadmissible (at ¶¶83-94).
- The reports from Dr Chiu and Dr Yusuf make clear the Appellant suffers from complex PTSD with comorbid generalised anxiety symptoms and depressive symptoms. The shocking news about her husband's arrest for murder of a sex worker and possible involvement in a number of killings has led to a further deterioration in her mental health, triggering her PTSD. The open source material demonstrates the extensive use of solitary confinement in Californian prisons and the treatment of prisoners with mental health conditions is of particular concern for the vulnerable Appellant.
- In relation to Article 8, Mr Hepburne Scott relied on the following factors as outweighing the public interest in extradition:
a. the period of delay of 5 years since the offences and the concomitant decrease to the public interest in return and the increase in the impact on private and family life in England since June 2020;
b. the Appellant's previous good character;
c. the Appellant's PTSD, as exacerbated by the shocking revelations regarding her ex-husband;
d. the Appellant's concerns regarding the breakdown of her marriage due to these proceedings; and
e. the Appellant is accused of an economic crime.
Submissions for the Respondent
- On behalf of the Respondent Ms Brown submitted the Judge was correct to exclude the opinion of Mr Tugushi. The Court in Chawla v India [2018] EWHC 1050 (Admin) did not refer to Brazuks v Latvia [2014] EWHC 1021 (Admin). In any event, the Judge in this case correctly noted that Dr Mitchell's expertise on prisons in India can be distinguished from Mr Tugushi's expertise on prisons in the United States. Moreover, there was a distinct lack of evidence of a real risk of a breach of the Applicant's rights pursuant to Article 3 ECHR. The level of careful consideration that the District Judge afforded to the various strands of evidence advanced by the Appellant in respect of this argument is evident from the judgment. Similarly, there was simply no evidence upon which the court could conclude that extradition would be oppressive and/or unjust by virtue of the health of the Appellant and the District Judge's findings are unimpeachable.
- The factors relied upon both individually and cumulatively by the Appellant are insufficient to render extradition a disproportionate interference with the Appellant or her family's Article 8 rights, particularly when considered against the nature of the offending and the significant loss and emotional stress caused to the complainants.
- There is nothing in the fresh evidence on appeal that would have caused the District Judge to discharge the Appellant and it is not therefore decisive.
Discussion
The legal framework
- The relevant legal framework was common ground.
a. The High Court may only allow an appeal under section 103 Extradition Act 2003 if the Court is satisfied that the judge below ought to have decided a question at the extradition hearing differently, so as to require an appellant's discharge. In short, the question for the appellate court is whether or not the district judge made the wrong decision. Findings of fact, especially if evidence has been heard, must ordinarily be respected (Celinski v Poland [ 2016] 1 WLR 551; re B (A Child) (Care Proceedings) [2013] 1 WLR 1911; and Love v Government of the United States of America [2018] 1 WLR 2889 at ¶¶25-26).
b. Where evidence is available that did not exist at the extradition hearing, an appeal will be allowed where the evidence would have resulted in the judge ordering the person's discharge. This is a strict test, consonant with the parliamentary intent and that of the Framework Decision, that extradition cases should be dealt with speedily and should not generally be held up by an attempt to introduce equivocal fresh evidence which was available to a diligent party at the extradition hearing. (s104(4) Extradition Act 2003; Hungary v Fenyvesi [2009] 4 All ER 324).
c. The extradition of a person by a contracting state will raise concerns under Article 3 ECHR where there are serious (i.e strong) grounds to believe that he/she would run a real risk of being subject to treatment contrary to Article 3 in the requesting state. The question whether treatment reaches the minimum level of severity required to engage Article 3 is intensely fact-sensitive and contextual requiring the court to look forward and attempt to gauge whether there is a real risk of Article 3 ill-treatment. The highly contextual nature of the assessment may make it more difficult to establish a real risk of a breach, particularly where the requesting state is one with a long history of respect of democracy, human rights and the rule of law, such as the USA (Rae v USA [2022] EWHC 3095 (Admin) at ¶64).
d. A judge must order a person's discharge pursuant to section 91 Extradition Act where the physical or mental condition of the person is such that extradition would be oppressive. A person seeking to establish oppression has a high burden, approaching that of breach of Article 3. Hardship is not enough. There must be an intense focus on the medical condition and what it means for an individual in terms of their daily living so a proper assessment can be made of what effects upon him and his condition extradition would have. Once that exercise has been carried out the court must assess the extent to which any adverse effects or hardship can be met by the requesting state providing medical care or other arrangements. Treatment in a requesting state need not replicate treatment in the UK (Kolanowski v Poland [2009] EWHC 1509 (Admin); Mikolajczyk v Wroclaw District Court [2010] EWHC 3503 (Admin); South Africa v Dewani [2012] EWHC 842 (Admin) and Magiera v Poland [2017] EWHC 2757)).
e. The question raised by a challenge based on Article 8 is whether the interference with the private and family life of an Appellant is outweighed by the public interest in extradition. This is an exercise of judgment as to where the balance must be struck between two powerful and conflicting interests, namely the public interest in extradition and the private and family lives of the individuals involved. The public interest in extradition will always carry great weight, but the weight to be attached to it in a particular case does vary according to the nature and seriousness of the crime or crimes involved. Whilst there is no test of exceptionality "it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe (Re HH and PH –v- Deputy Prosecutor of the Italian Republic, Genoa: F-K (FC) –v- Judicial Authority [2012] UKSC 25. [5], [8], [90], [150]).
The admissibility of Mr Tugushi's opinions on prison conditions
- In Brazuks v Latvia [2014] EWHC 1021 (Admin), Collins J made the following observations about the use of expert evidence on prison conditions in a requesting state:
"42 I should say a word about the experts' reports which have been put forward. No doubt it is helpful to identify the material available in reports on prison conditions in any requesting state. That material can then be produced to the court and any relevant matters referred to in support of any submissions. The views of an expert are not relevant and probably not admissible since it is for the judge to decide on the evidence produced whether there is a real risk of any material ill-treatment. Approval should not be given to pay such experts who have no direct personal experience of the conditions in a particular country. If they do have such experience and it is relevant, they can of course give evidence of what they have observed. They may also have knowledge of the economic situation or of any views expressed by government officials which may mean that any shortcomings will not be likely to be dealt with. Thus their knowledge of the existing situation and their added knowledge of the prospects of improvements may entitle them to put forward expert opinions. But if they do not have any such expertise, they will be doing no more than giving factual evidence".
- Brazuks v Latvia was cited by the Divisional Court in Stanciu v Armenia [2022] EWHC 3368 at ¶¶7 and 8:
7. The Judge received oral evidence from Mr Arshak Gasparyan who was put forward by the Appellant as an expert in prison conditions in Armenia. However the Judge, applying the decision of Collins J in Brazuks v Latvia [2014] EWHC 1021(Admin) , concluded that Mr Gasparyan was not an expert for the purpose of assessing the Article 3 risks in relation to the prison at issue. He had done no more than produce open source material in his two reports, and his visits to a number of prisons in Armenia took place some time ago. Fordham J ruled that the Judge's conclusion was not arguably wrong on this topic.
8. For the avoidance of doubt, we consider that had Mr Gasparyan visited the relevant prison, Armavir, in the recent past, his evidence of what he observed would have been admissible as evidence of fact. That he was not an expert would have gone to its weight and not to admissibility.
- Mr Hepburne Scott seeks to rely on the case of Chawla v India [2018] EWHC 1050 (Admin). It is however necessary to look at the particular submission before the Court in Chawla, to which the judgment responds:
"36 Mr Summers submitted that there was no evidence to support the District Judge's finding of a risk of violation in this case. Leggatt LJ in the course of submissions noted that this was likely to be an uphill struggle for the Government. Mr Summers submitted that the expert evidence from Dr Mitchell did not assist because Dr Mitchell has not visited Tihar prison. It was suggested that the concerns referred to by the District Judge were based on unreliable complaints reported in newspapers.
37 We do not accept this characterisation of the expert evidence from Dr Michell or the evidence before the District Judge. Dr Mitchell relied on reports and information including "Torture in India" a report by the Asian Centre for Human Rights in 2011 which detailed incidents of torture at Tihar prison in Delhi; the Supreme Court of India Writ Petition regarding "Inhuman conditions in 1382 prisons" order dated 5 February 2016 of Madan Lokur J. which included Tihar prison, recording that overcrowding remained a problem; and press reports. Dr Mitchell also referred to the local Government website in Delhi which detailed that as at 31 December 2015 the Tihar prison consisted of 9 jails, 8 of which held male prisoners…"
- It is apparent from the extracts from the judgment in Chawla set out above that the Court was responding to an apparently stark submission that there was no evidence upon which the district judge could have found a risk of violation of Article 3 and the evidence, such as it was, comprised unreliable newspaper reports. The judgment does not refer to Brazuks v Latvia or make any specific response to the submission about Dr Mitchell's personal experience of Indian prisons.
- It is however of note that the Judge in this case appears to have personal knowledge about the experience of Dr Mitchell stating at ¶86 of the judgment below:
"Dr Mitchell is a member of the CPT and to my knowledge he has visited prisons in India even if had not visited the particular prison in Chawla. The High Court was right to consider him an expert".
- The Judge went on to distinguish Mr Tugushi's experience of prisons in the United States from Dr Mitchell's experience in Indian prisons stating "Mr Tugushi does not even have the benefit of visiting any prisons in the USA such that his observations can be considered as evidence of fact" [¶93].
- Mr Hepburne Scott submitted that Mr Tugushi had brought his general expertise to bear on the open source material in contrast with the lay assessment of a judge reviewing the material. It is however for the Judge to decide on the evidence produced whether there is a real risk of any material ill-treatment (Brazuks v Latvia [2014] EWHC 1021 (Admin) at [41]).
- The Judge was entitled to exclude the opinion evidence of Mr Tugishi.
The open source material on solitary confinement
- In Criminal Proceedings against Aronyosi, ([2016] QB 921) the Court referred to the need for "information that is objective, reliable, specific and properly updated on the detention conditions prevailing in the issuing member state" [¶89] ( underlining is this Court's emphasis).
- As the Judge identified, with the exception of a 2023 report, which is considered further below, the open source material on solitary confinement dates back to 2014 – 2017. It includes a 2014 review by the UN Committee against Torture; a 2016 submission by Amnesty International to the UN Committee Against Torture; a 2016 report prepared jointly by (unnamed) NGO's; a report by the American Civil Liberties Union in 2016 and a 2017 report by Physicians for Human Rights. Mr Hepburne Scott pointed to Mr Tugishi's observation about the lack of systematic monitoring of US prison as the reason and a concern in itself. However he acknowledged the existence of more recent information before the Court in Tweedie v Scottish Ministers [2023] HCJAC 29, at least in relation to the federal state response to the sexual abuse of prisoners.
- The most recent information in Mr Tugushi's report comes from a document titled 'From Crisis to Care' (February 2023) about conditions in California's prisons for women. Mr Tugushi deals extensively with the document, reproducing it verbatim at paragraphs ¶¶58-71 of his report. However, as the Judge identified, the document has a limited evidence base. Due to difficulties in getting access to prisoners the report is based on interviews with 6 prisoners and survey responses from 120 prisoners. The document refers to the regular use of solitary confinement and, in particular, to prisoners with mental health concerns being placed in psychiatric segregation units. However, the evidence base in this regard appears to be a 2015 survey about transgender women being put into solitary confinement (there is no suggestion the Appellant is transgender) and an article published in 2020 referred to in a footnote.
- The 2023 document also refers to more positive developments, which are not mentioned in Mr Tugushi's report. As well as reference to the state of California investing $405 million per annum in its prisons for women, the document states:
"Whilst rates of incarceration in women's prisons have skyrocketed across the US over the past decade, California's women's prison population has decreased by 70.8% due to significant state policy changes. California recently emptied the women's units at Folsom State Prison and the facility will be shut down in 2023".
- Having assessed the open source material the Judge concluded that it was, for the most part, elderly. The most recent material (2023) had a limited evidence base. The Judge accepted that there is general evidence of the use of solitary confinement but the general information indicated the risk was greater for LGBTI/non-white prisoners (the Appellant is not within either category). She reminded herself that the USA is a liberal state with a long history of respect for democracy, human rights and the rule of law (¶114). The Judge dismissed the evidence of the Appellant and her children on prison conditions as anecdotal.
- On the material before her the Judge was entitled to conclude that there are no substantial grounds to give rise to a real risk of a breach of Article 3 ECHR.
The addendum report of Dr Yusuf
- In his submissions on Article 3 and section 91 Extradition Act, Mr Hepburne Scott relied on the addendum report of Dr Yusuf, obtained after the judgment below. He pointed to Dr Yusuf's assessment that the Appellant's discovery that her husband is under investigation for murder had led to a reactivation and deterioration of her complex PTSD. He emphasised the impact of solitary confinement on the vulnerable Appellant.
- However, the Judge accepted the Appellant's PTSD had worsened with her discovery of her husband's arrest for murder (¶140). Mr Hepburne Scott submitted that the force of Dr Yusuf's addendum report lies in the authoritative medical diagnosis of the decline in the Appellant's mental health. However, the Judge had not expressed any caveats in her acceptance of the impact on the Appellant. It follows that I do not consider Dr Yusuf's addendum report to be decisive and I decline to admit it (Hungary v Fenyvesi [2009] EWHC 231 (Admin)).
- Having accepted that the Appellant is suffering from PTSD, the Judge went on to conclude that PTSD is an illness which is treatable with medication and therapy even in a prison environment (¶141). This allies with the Judge's finding that the Appellant had not established a real risk that she would be denied medical treatment (¶117). Mr Hepburne Scott did not challenge either of the Judge's findings in this respect. Although I am not asked by the Respondent to admit the recent letter from the County Sheriff's Department, I observe that it confirms the views arrived at by the Judge in this regard.
- On the material before her, the Judge was entitled to conclude that extradition will not be oppressive under section 91 Extradition Act.
Article 8 – the balancing exercise
- Mr Hepburne Scott indicated in oral submissions that he did not seek to press the Article 8 ground upon the Court. In my view this was a pragmatic concession.
- The Judge concluded that the public interest in extradition was strong both in terms of the general public interest in honouring extradition arrangements and in the seriousness of the offending in this particular case (¶161/162). She directed herself, in accordance with HH [2012] UKSC 25 [8], that the public interest in extradition would outweigh the Article 8 rights of the Appellant and her family unless the consequences of the interference with family life are exceptionally severe (¶164).
- The Judge assessed the factors advanced by the Appellant in favour of discharge but ultimately concluded that they were insufficient to tip the balance in the Appellant's favour. In particular, she acknowledged the Appellant's PTSD and the breakdown of her English marriage but concluded they did not outweigh the public interest in extradition. The reality before the Judge was that the Appellant's relationship with her husband in the United Kingdom was precarious at best. The evidence before the Judge pointed to the relationship having ended, thereby significantly weakening her ties to the UK. Her children are adults who live in the United States and have their own lives. The factors relied upon both individually and cumulatively by the Appellant are insufficient to render extradition a disproportionate interference with hers or her family's Article 8 rights.
- Mr Hepburne Scott submitted that economic crime is to be regarded as less serious than crimes of violence but was not able to point to any legal authority to this effect beyond paragraph 8 of HH [2012] UKSC 25 that the weight to be attached to the public interest will vary according to the nature and seriousness of the crime involved. As the Judge observed, the offending outlined in the Extradition Request relates to serious allegations of dishonesty over a period of some 6 years realising a sum of the order of £300,0000. Both the breach of trust and the financial distress caused to the owners of the small business targeted is significant.
- Mr Hepburne Scott emphasised the delay in proceedings. However, the Judge set out the chronology to which no challenge is made (¶145 and ¶146d)). The complaint to the police was lodged in October 2018. The police were seeking disclosure of bank details in the summer of July 2019. The charges were laid against the Appellant on 23rd June 2020 the day after she left for the United Kingdom. The US authorities issued a warrant for her arrest on 24th June 2020. The Judge was entitled to conclude there was no delay in the investigation.
- Although it is not necessary for me to consider the up to date material, I observe that the balance has since tilted even further in favour of extradition. The Appellant's relationship with her English husband has come to a definitive end and the Respondent has produced evidence of recent social media posts by the Appellant expressing pleasure at the prospect of returning to the USA to see her children and family.
Conclusion
- For the reasons set out above, the appeal is dismissed.
