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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Fletcher v Government of India [2021] EWHC 610 (Admin) (16 March 2021) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2021/610.html Cite as: [2021] EWHC 610 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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IVOR FLETCHER |
Appellant |
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- and - |
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GOVERNMENT OF INDIA |
Respondent |
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JAMES STANSFELD (instructed by Crown Prosecution Service) for the Respondent
Hearing dates: 28 January 2021
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Crown Copyright ©
MR JUSTICE CHAMBERLAIN :
Introduction
Background
The evidence before the District Judge
"10.10 Ivor Fletcher also has a history of self-harming behaviour that has previously been closely linked with the mental disorders from which he suffers. Impulsivity appears to have been a particular issue, as it often is with people who present with traits of emotionally unstable personality disorders, in both his previous self-harming behaviour and in his previous suicidal acts. This background of recurrent self-harming and suicidal thoughts and behaviour, upon background diagnoses of depression and personality disorder, indicates that there is an elevated risk of suicide in this case.
10.11 Each of these factors - depression, personality disorder, history of self harming and suicidal thoughts and behaviour - is, on its own, associated with an elevated risk of suicide, however the risk is likely to be further enhanced when they appear together, as in Ivor Fletcher's case.
10.12 When they are also associated with specific suicidal ideas and plans that have been researched, as described by Ivor Fletcher in section 9 of this report, in my opinion the risk of suicide should then be considered substantial. In my view, the risk of completed suicide is likely to be greatest in the period following an extradition decision and, given the statements he has made, likely to persist during the period of preparation for removal, while in transit, and after arrival in prison in India.
…
10.14 Ivor Fletcher cites the treatment he received in Indian prisons, the conditions he experienced there, and his belief that he will be physically harmed by having his legs broken if he is returned to India, as a key factor in his suicidality. When this is taken at face value, it appears that Ivor Fletcher is able to think through how and when he will act, however an important factor to consider is the influence of his underlying personality disorder which introduces a strong element of impulsivity. In my opinion, and despite the plans Ivor Fletcher has described, it is likely that any future suicidal acts will be underlain with this impulsivity, arising from underlying personality disorder, as they appear to have previously been."
District Judge Zani's findings and conclusions
(a) The Appellant had suffered from mental health issues for some years, but had been able to cope with living independently and continued to take appropriate prescription medication. There was no evidence that such medication would be either unavailable or not prescribed by the Indian prison authorities: [84], [103];
(b) There had been no reported incidents of either hospitalisation, self-harm or attempts on the Appellant's life since his arrest in the UK on 7 November 2018: [85];
(c) Personality disorder and depression are "not particularly uncommon, not only within the prison estate, but also within the wider society generally": [86];
(d) The Appellant's expert witnesses (Dr Mitchell and Dr Forrester) had not been able to provide the court with "any meaningful information" regarding the anticipated psychiatric care and assistance that will, or may, be made available to the Appellant upon extradition being ordered: [87];
(e) The Appellant had attributed the origins of his mental health conditions to a period in an Indian prison from April 2002 until June 2003. However, the weight of this evidence was reduced by the fact that the Appellant did not give oral evidence and, accordingly, was not cross-examined: [88]-[93];
(f) Since returning to the UK in 2005 the Appellant had experienced multiple breakdowns, including an admission to a psychiatric ward and episodes of self-harm: [93], [98], [100].
"I am entirely satisfied that the Indian authorities know their obligations to deal appropriately with such medical issues as the Appellant may present, and that they will abide by such obligations. Accordingly, such challenge under s. 91 of the 2003 Act must fail".
Dr Forrester's supplementary report of 14 September 2020
"9.8 He then told me that he has been feeling depressed recently and that this has been worse since lockdown commenced in March 2020. He said that he feels depressed 'every day', that it is 'always there', and that it is exacerbated by visiting his father.
…
9.20 I asked him if he had been having any thoughts of self harm or suicide and he replied to say he had been experiencing suicidal thoughts on a daily basis. By his own account, 'I'm only holding on because there is a glimmer of hope… my confidence… is draining away.'
9.21 He then said that he has considered how he might kill himself, stating that 'I've got a lot of quetiapine left' and 'cutting… I know where the veins are, don't have to dip deep for arteries… cut one of them and bleed out.'
9.22 I asked him how he would respond if extradition was ordered and he replied to say he 'would cut and bleed… I see it as… if I was to let them do that to me, I don't think I would survive then ten years… given the conditions in there… my health.'
9.23 He said that he does not see a future for himself in the event of extradition, stating that 'I'd be homeless, without any money, without a State pension, that's a pretty dire future… what's the point of going there to spend my last days in an Indian jail… I figure why suffer for all of that time… at least if I take action to end my life, I decide when and how… better than getting killed in a jail.'
"10.7 I remain of the opinion, as outlined in paragraph 10.11 of my earlier report in this case, that each of the identified factors in this case – depression, personality disorder, history of self harming and suicidal thoughts and behaviour – is, on its own, associated with an elevated risk of suicide, and that the risk is likely to be further enhanced when these features appear together, as they do in Ivor Fletcher's case.
10.8 An additional factor to consider is Ivor Fletcher's age. He is aged 57 and it is known that suicide rates are increased in middle aged and older men
10.8 Ivor Fletcher currently describes the presence of suicidal thoughts on a daily basis, with suicidal intentions and specific plans should extradition proceed. Despite this, he has also said that 'no immediate threat' arises, largely because he still thinks 'there is a glimmer of hope' (by which I understand him to mean that he is awaiting the outcome of this appeal).
10.9 However, despite this partial reassurance, I am of the opinion that his risk of suicide should presently be considered very high. This is because he presents with a number of risk factors, including severe depression, personality disorder (with a resulting strong element of impulsivity which he is unable to control), a history of self-harming behaviour and suicidal acts, and because he has described the presence of daily suicidal thoughts, with both suicidal intentions and specific plans.
10.10 Given this risk, I have written to Ivor Fletcher's GP, with his consent, to communicate what I believe is a very high risk of completed suicide.
10.11 In my opinion, the risk of completed suicide is likely to rise sharply if he loses this appeal and it is likely to remain very high during the period of preparation for removal, during removal itself, and following arrival in prison in India."
The assurances provided by the Respondent
(a) On arrival in India, the Appellant will be assessed by appropriate mental health professionals and appropriate steps will be taken to ensure his timely psychiatric assessment and treatment (see FI-4). He will be assessed by a medical professional on his arrival at Model Central Jail, Kanda. The timing and location of the assessment will be decided by the medical professional. He will be transferred with an "adequately strong escort team" (which may include a psychiatrist or psychologist) from the airport to prison (see FI-7).
(b) The Appellant will be held at the Model Central Jail, Kanda, District Shimla, Himachal Pradesh (see the Assurance). On arrival at the prison, he will be confined to a "safe barrack under strict watch and vigil" (see FI-5). This has iron grills and railings fixed on all doors, windows etc., instead of wood or glass or other material, and the inmates are unable to get access to ceiling fans or electric wires. These measures are intended to prevent suicide attempts from, for example, jumping from the barrack. The safe barrack is located near the Head Warder's room, so that a strict vigil can be kept on movements within the barrack. The barrack has capacity for 12 inmates, with six windows for adequate light and ventilation and inmates are outside of the barrack during the daytime and are able to move within their block (see FI-6).
(c) The Superintendent of the Jail could decide to transfer the Appellant from the safe barrack to a normal cell or barrack (see FI-6). The cells in both type of barracks are 520 square feet, with a capacity of 12 inmates. Thus, each inmate has more than 4 sq. m. Photographs are provided (see the Assurance; FI-4; FI-6).
(d) The Appellant will have access to all the healthcare facilities in the prison, which includes a medical officer and associated para-medical staff. Presently there are no psychiatric staff posted in the jail (see FI-5). However, if needed, the Appellant could receive specialist psychiatric care and treatment at IGMC Shimla, which is located nearby (see FI-3). The psychiatric team from IGMC Shimla pays periodic visits to the jail (see FI-5).
(e) Any decision to transfer the Appellant to the prison hospital will be taken by the Superintendent on the recommendation of the medical authority. The Appellant will be able to remain at IGMC Shimla for as long as medically advised (see FI-6).
(f) The Department of Prisons and Correctional Systems provides medication, free of cost, as required to treat any physical health condition during the Appellant's detention (FI-4), including his current medication mirtazapine (FI-6). He will also be provided with any medicines and therapy prescribed by Medical Officers/Psychiatrists (FI-5).
(g) Persons at risk of suicide at the Model Central Jail are kept under "strict watch and vigil" and confined in the safe barracks (see sub-para. (b) above). They are "continuously provided with psychiatric treatment from IGMC Shimla. They are also kept busy in other Jail Welfare Activities" (see FI-5). The Appellant will be permitted to go outside the cell for six hours every day with access to yoga classes, open air gym, library etc. (see the Assurance) (see FI-6).
The evidence about prison conditions
Legal framework
"(1) This section applies if at any time in the extradition hearing it appears to the judge that the condition in subsection (2) is satisfied.
(2) The condition is that the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him.
(3) The judge must—
(a) order the person's discharge, or
(b) adjourn the extradition hearing until it appears to him that the condition in subsection (2) is no longer satisfied."
"It would… be oppressive to order his return when there is, on any view on the evidence, such a substantial risk that he will commit suicide. It is not as if this is an appellant who is threatening to commit suicide without any history of having tried to do so. Not only is he threatening that he will commit suicide and the doctor believes him but he has in fact, for the same reason, attempted to commit suicide in Wormwood Scrubs Prison and very nearly succeeded in doing so. In reaching the conclusion that it would be oppressive to return him, this is not a reflection on the ability of the Latvian prison authorities to protect him and provide the necessary treatment. But an assessment, so far as the evidence enables one to do so, that the risk that he will succeed in committing suicide, whatever steps are taken, is on the evidence, sufficiently great to result in a finding of oppression…."
"(1) The court has to form an overall judgment on the facts of the particular case…
(2) A high threshold has to be reached in order to satisfy the court that a requested person's physical or mental condition is such that it would be unjust or oppressive to extradite him…
(3) The court must assess the mental condition of the person threatened with extradition and determine if it is linked to a risk of a suicide attempt if the extradition order were to be made. There has to be a 'substantial risk that [the Appellant] will commit suicide'. The question is whether, on the evidence the risk of the Appellant succeeding in committing suicide, whatever steps are taken is sufficiently great to result in a finding of oppression…
(4) The mental condition of the person must be such that it removes his capacity to resist the impulse to commit suicide, otherwise it will not be his mental condition but his own voluntary act which puts him at risk of dying and if that is the case there is no oppression in ordering extradition…
(5) On the evidence, is the risk that the person will succeed in committing suicide, whatever steps are taken, sufficiently great to result in a finding of oppression?...
(6) Are there appropriate arrangements in place in the prison system of the country to which extradition is sought so that those authorities can cope properly with the person's mental condition and the risk of suicide?
(7) There is a public interest in giving effect to treaty obligations and this is an important factor to have in mind."
"The key issue, as is apparent from propositions (3), (5) and (6), will in almost every case be the measures that are in place to prevent any attempt at suicide by a requested person with a mental illness being successful."
(a) The first involved conflicting reports from three psychiatric experts; two of whom gave oral evidence at trial [30ff]. The clinical view of the expert whose evidence was preferred by the trial judge was that the appellant had no psychiatric disorder or depressive illness and that there was a low to medium suicide risk upon extradition: [34]. He had attempted suicide by overdose in a custodial setting approximately a month before the Divisional Court hearing, but even assuming there was a high risk or suicide there was nothing to suggest that effective steps could not be taken to mitigate the risk by authorities either in the UK or in the requesting state: [39].
(b) In the second case, the appellant relied on an expert report which his own legal representative conceded did not meet the high threshold of "oppression": [48]. As such, there was no basis for contending that his condition could not be properly managed by the requesting state, notwithstanding his chronic delusional disorder: [56].
(c) In the third case, the Senior District Judge concluded that there was no credible evidence of attempted suicide or self-harm for the 18 months that the appellant had been in the UK and that her expert was "unable to be dispassionate" and "had applied his own definition of 'oppression'": [64], [68]. The Divisional Court held that in light of the evidence of treatment and facilities in the requesting state, it seemed "impossible" to contend that the trial judge was not entitled to reach her conclusions of the facts [73].
"… the question in Proposition (3) is to be approached as the ultimate determinative question – when Proposition (3) is read with propositions (5) and (6) – is as follows (the encapsulation is mine):
The question is whether, on the evidence, whatever steps are taken – and even if the Court is satisfied that appropriate arrangements are in place in the prison system of the country to which extradition is sought so that those authorities will discharge their responsibilities to prevent the requested person committing suicide – the risk of the requested person succeeding in committing suicide, by reason of a mental condition removing the capacity to resist the impulse to commit suicide, is sufficiently great to result in a finding of oppression.
As it seems to me, this composite approach makes best sense of the phrase 'whatever steps are taken' in Turner propositions (3) and (5). It is a mistake to treat the Turner Propositions as being a sequential flowchart – like a 'route to verdict' – such that Proposition (6) provides an answer notwithstanding that the 'question' described in Proposition (3) has previously been answered 'yes'. Putting the same point another way, the phrase 'so that those authorities can cope properly with' in Proposition (6) would need to entail 'steps' being 'taken' which will reduce the risk so that it is no longer 'sufficiently great to result in a finding of oppression' for the purposes of Proposition (3) and (5)."
"… Notwithstanding the ability of the German authorities to discharge the responsibilities by making appropriate arrangements, on the evidence such is the mental condition of the Appellant linked to the risk of suicide – where the condition is such as to remove the capacity to resist a suicidal impulse – that the risk of the Appellant succeeding in committing suicide, whatever steps are taken, is sufficiently great to result in a finding of oppression…"
Submissions
Discussion
"whether, on the evidence, whatever steps are taken – and even if the Court is satisfied that appropriate arrangements are in place in the prison system of the country to which extradition is sought so that those authorities will discharge their responsibilities to prevent the requested person committing suicide – the risk of the requested person succeeding in committing suicide, by reason of a mental condition removing the capacity to resist the impulse to commit suicide, is sufficiently great to result in a finding of oppression".
(a) The cases in which the test for oppression has been found to be met on the basis of risk of suicide (Jansons and Farookh) have involved recent, genuine suicide attempts. Where there have been such attempts, these will be relevant to the conclusion about future risk. But the assessment of future risk of completed suicide (the starting point for oppression) is a matter for expert evaluation and involves consideration of a wide range of factors, of which the history of attempts is only one.
(b) In this case, although there has been no attempted suicide since 2016, there is uncontested expert evidence that the Appellant presents a "very high risk" of completed suicide, given the combined effect of: (i) his severe depression; (ii) his personality disorder; (iii) his history of self-harming behaviour and suicidal acts; and (iv) the reported presence of daily suicidal thoughts, with both suicidal intentions and specific plans. Giving due weight to the public interest in honouring the UK's treaty commitments, this would be sufficient to meet the high threshold for oppression unless preventive measures would reduce the risk below that threshold.
(c) The Appellant's description to Dr Forrester of his plans to commit suicide suggest that his current suicidal thoughts arise in the context of a rational consideration of the predicament he believes he will face in prison in India and his inability to cope with that predicament. However, that does not mean that any attempt to commit suicide will be "voluntary" in the sense described in Turner. On the evidence, there are two mental disorders which play a part in the "very high risk" of completed suicide: depression and personality disorder. The latter is associated with a "strong element of impulsivity which he is unable to control", which underlay his previous self-harming and suicide attempts. In my judgment, the evidence of Dr Forrester establishes that the risk of completed suicide derives in substantial part from a mental disorder which "removes his capacity to resist the impulse to commit suicide" – i.e. Turner proposition (4) is satisfied.
(d) This means that the preventive measures are critical. The most important such measure is the "safe barrack" where the Appellant would be accommodated. FI-6 indicates that the main difference between the "safe barrack" and other cells is that it is configured so that prisoners cannot jump out of it to commit suicide. This involves using "proper iron [g]rills; [r]ailings" on "all its doors, windows, porch, stairs etc. instead of using wooden, glass or other material". Inmates also cannot have access to "ceiling fans and electric wire etc." It is 16ft x 32.5ft and has the capacity to house 12 inmates. I accept Dr Mitchell's expert evidence that this does not provide any reassurance that the barrack does not contain ligature points which could be used in suicide attempts. Although there is no evidence that the Appellant has used ligatures before, the evidence does suggest that he is determined to commit suicide if extradited. This makes it important that any assurance should address all realistic modes of committing suicide. The assurances given here do not.
(e) The Indian authorities say in FI-6 that the safe barrack "should be near to the room of the supervisory staff inside the jail from where the supervisory staff can have a bird's eye view of this barrack and keep strict vigil upon the movements inside the barrack", that the safe barrack is located "near" the Head Warder Room and that "[t]he Jail watch and ward staff and supervisory staff deployed to watch and ward this barrack, will also keep strict watch and vigil upon Mr Fletcher by 24X7". But this does not explain: (i) how close the room of the supervisory staff is to the safe barrack; (ii) whether staff are able to make observations directly from their room and if so how; (iii) if not, how often they go to the safe barrack to observe prisoners and for how long; (iv) how many supervisory staff are present and how many prisoners they are required to supervise; (v) what measures are in place to supervise prisoners when they are locked out of the barrack during the day; (vi) what (if any) measures are in place to prevent prisoners having access to objects or implements with which they can self-harm or attempt suicide. These deficiencies mean that the information provides little reassurance that the measures in place would significantly reduce the risk of completed suicide from the "very high" level which Dr Forrester assesses the Appellant presents.
(f) I would not regard it necessarily problematic that the prison has no specialist psychiatric care available on-site, given the availability of such care at IGMC Shimla, some 20 km away. But I accept Dr Mitchell's evidence that the lack of detail as to the frequency with which psychiatrists from IGMC Shimla visit the jail means that it is difficult to assess the psychiatric care which would in practice be available. Certainly, the detail that is provided does nothing to allay the concerns about the extent of supervision to prevent suicide.