APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Reed Lord Mackay of Drumadoon Lord Philip	[2009] HCJAC 94 Appeal No: XC411/08 OPINION OF THE COURT delivered by LORD REED in the Appeal by KERRY SHANKS or HOWES Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

For the Appellant: Targowski Q.C., Mason; Good & Moore, Solicitors

For the Respondent: Hawkes; Crown Agent

9 December 2009

Introduction

[1] In this appeal under section 103 of the Extradition Act 2003, the appellant has made an application to have the appeal allowed on the ground that her mental condition is such that it would be unjust or oppressive to extradite her. The application is founded on section 91 of the Act. The issue was not raised at the extradition hearing before the sheriff, but this court held, for reasons explained in an earlier opinion, that it could competently be raised for the first time in this court. The court was invited to consider this application separately from the other grounds of appeal, including grounds founded on what is submitted to be the incompatibility of the appellant's extradition with the Convention rights defined in the Human Rights Act 1998.

The evidence

[2] The court has been presented with evidence, both oral and written, relevant to the application. That evidence came principally from two psychiatrists, Dr Pradeep Pasupuleti and Dr Fionnbar Lenihan. The court was also provided with reports by a psychologist, Mr Dutton, but neither party founded upon them.

[3] Dr Pasupuleti is a registrar in forensic psychiatry at Murray Royal Hospital in Perth. He is in the final stages of preparing to be a consultant. He assessed the appellant by interviewing her in the presence of her husband, who participated in the discussion by filling in gaps in her answers. We note that the appellant's husband has also appealed to this court under section 103 of the Act, the two appeals arising out of the same facts: the United States of America has requested the extradition of the appellant and her husband to stand trial in Arizona on charges of conspiring to import into and distribute in the United States chemicals that are used to manufacture methamphetamine, knowing or having reason to know that the chemicals would be used for that purpose.

[4] In his report, Dr Pasupuleti noted that the appellant had in the past suffered from episodes of post-natal depression, and that she had developed symptoms of anxiety and depression in 2005 after the house she shared with her husband and children was raided by the police in connection with the possession of a firearm. Similar symptoms had developed in 2007 in the context of the extradition proceedings. The appellant reported that she had developed symptoms of severe anxiety and panic attacks during the seven months or so she had spent in prison, and had written several letters indicating an intention to kill herself. These symptoms had been addressed within the prison: she had been prescribed medication by a visiting psychiatrist, and had been placed on close observation by prison officers. She had not in fact attempted self-harm. Dr Pasupuleti recorded his assessment of the appellant as a markedly anxious young woman, who appeared to be a caring mother. Her dressing was appropriate and there were no signs of self-neglect. She displayed reasonable eye contact. Her speech was normal in rate, volume and quantity. There was no formal thought disorder or symptoms of psychiatric illness. She was well orientated as to time, place and person, and had a good insight into the nature of her problems. Dr Pasupuleti concluded that the appellant had developed a mental condition, in response to the extradition proceedings, with predominant symptoms of anxiety, panic attacks and compulsive behaviour (such as repeatedly cleaning and tidying her house). Her mental condition met the criteria of an adjustment disorder. Dr Pasupuleti concluded:

"1. Mrs Howes displays features of an adjustment disorder. This is not of a nature or severity to require admission to hospital...

2. It is very likely that Mrs Howes' anxiety state will worsen around the time of a trial. This may be associated with increased thoughts of suicide or self harm. She should be considered high risk of suicide in the time period immediately after the Court proceedings if the Court were to make a final judgement against her favour. A low threshold is recommended for considering further psychiatric assessment by her local mental health team if she voices such thoughts or displays behaviour to suggest her risk has increased...

3. If Mrs Howes were to be found liable to extradition and remanded in custody, her case should be highlighted to prison staff on her reception to prison as her risk will be high even if not voicing suicidal thoughts...

4. In my opinion Mrs Howes understands the charges she is facing, the difference between a plea of guilty and not guilty and is able to instruct her defence."

[5] In his evidence before this court, Dr Pasapuleti confirmed that he had been instructed to prepare his report on the basis that, as stated in his report, if the appellant were to be extradited, she faced the prospect of "decades of incarceration in the Federal Prison of America and permanent loss of children". He accepted the suggestion put to him, on behalf of the appellant, that the risk of suicide if she were to be extradited and convicted was "substantial". What exactly Dr Pasupuleti (whose English was not always idiomatic) understood by "substantial" in this context (as distinct, for example, from "high" - the word used in his report) was not explored.

[6] Dr Lenihan is a consultant forensic psychiatrist at the Royal Edinburgh Hospital and a visiting psychiatrist at a number of prisons including Saughton Prison, which has about 800 inmates. He interviewed the appellant on her own, so as to avoid the risk that she might be influenced by the presence of her husband. In his report, he noted that the interview went better than he had anticipated on the basis of other reports relating to the appellant (including that of Dr Pasupuleti). He had regard to information which had not been available to Dr Pasupuleti, including information concerning the transfer of foreign prisoners from the United States to their home countries, and information concerning the psychiatric care of prisoners in the United States. We consider that information below. In relation to the appellant's psychiatric history, Dr Lenihan noted that she had never had an in-patient psychiatric stay. She had once seen a visiting psychiatrist in prison. She had at different times been prescribed anti-depressants by her general practitioner. Dr Lenihan's assessment of the appellant's mental state was broadly similar to that of Dr Pasupuleti. He commented that the appellant "displayed symptoms of anxiety and agitation but not to a degree unusual with the population that I normally interview". Dr Lenihan concluded:

"1. Ms. Howes displays a variety of anxiety-related symptoms (including her cleaning behaviours).

2. These symptoms were not present before her arrest. They are a direct result of her arrest and the events which flowed from it.

3. These symptoms wax and wane in response to the tribulations of her court case.

4. These symptoms do not respond to the usual treatments for anxiety disorders because the situational problems which precipitated the symptoms continue.

...

The Practical Significance of Diagnosis

Context-dependent anxiety symptoms of the sort Ms Howes displays are very common in the general population. They are even more common in forensic populations. For that reason they are not usually regarded as being grounds for removal from prison to hospital. This is particularly the case when the legal process itself has caused the anxiety symptoms.

...

I agree with Drs Morris, Ward and Pasupuleti that Ms. Howes will remain symptomatic until her legal issues are settled, one way or another...

Fitness to Plead or Capacity to Take Part in Court Proceedings

...Ms Howes understood the nature of the charges, could distinguish between a plea of guilty and one of not guilty, follow proceedings and instruct her legal representatives. She showed a basic understanding of the court process and the functions of the main officers of the court.

Anxiety, even quite intense anxiety, in relation to court proceedings is not unusual and, in my experience does not prove an impediment to trial process. I would anticipate that Ms. Howes' anxiety would peak before her court appearances and at the beginning of the hearings, settling as the hearings progress...

Anxiety symptoms, while subjectively very unpleasant, do not usually cause lasting harm in themselves. The ability to tolerate and deal with situational anxiety increases with exposure to the feared situation and the goal of treatment is to increase personal resilience, both in respect of the current difficulties and ones in the future.

To summarize my opinion on this point; Ms. Howes is sane, fit to plead and fit to take part in her court proceedings.

...

The Risk of Suicide

Expressions of suicidal intent, even those couched in contingent terms (i.e. "I will kill myself if X happens/does not happen"), are very relevant in terms of assessing the risk of future suicidal behaviours. They are however common in psychiatric and custodial settings and are usually managed dynamically without necessarily acceding to the implicit demand. I would support the advice of my colleagues with regards to apprising the custody staff both in the UK, the USA and in transit, of the likely risks and advising them to use their usual protocols to manage these risks. This could be ensured by passing on copies of my report as well as that of Drs Morris and Pasupuleti. The risk is likely to be highest in the days and weeks following an adverse outcome to the legal process.

It would, I believe, be incorrect to view Ms. Howes' suicidal risk as being an entirely deterministic consequence of an adverse legal decision. Despite her very difficult situation she is an adult with free will and some, albeit constrained, choices."

[7] In evidence, Dr Lenihan was unwilling to accept that there was a substantial risk that the appellant would kill herself. He accepted that it was a possibility, but said that he would not describe it as a substantial risk. It could be anticipated that there would be an increase in the appellant's suicidal thoughts following an adverse decision, to which the prison authorities should respond by increasing the level of observation. Threats of suicide were relatively common amongst prisoners, and were mostly managed within the prison system.

[8] As we have mentioned, Dr Lenihan had regard to information concerning the transfer of foreign prisoners from the United States to their home countries. That information was contained in an affidavit by Mr Charles Brooks, the responsible official in the United States Department of Justice, which explains that international prisoner transfers between the United States are governed by the Council of Europe Convention on the Transfer of Sentenced Persons. Mr Brooks states:

"5. In evaluating an inmate's request to transfer to his home country, the United States considers various factors going to the ends of justice and the social rehabilitation of the inmate. These considerations involving the ends of justice include such factors as the seriousness of the offence, the presence of a firearm, a prior criminal record, past illegal entries into the United States, past deportation from the United States, permanent residence status whether lawful or unlawful, failure to pay financial obligations imposed at sentencing, a pending appeal or collateral attack; ongoing criminal investigations or prosecutions; institutional misconduct; and the length of time remaining on the sentence. The considerations involving the social rehabilitation of the inmate include such factors as. a prisoner's rehabilitative prospects, the strength of his ties to his home country and the strength of his ties to the United States, the presence of close family members in his home country and in the United States, and extended residence or the lack of any residence in the United States.

6. Once transferred, administration of the sentence is taken over by the receiving state, where the sentence, even if it the same as that in the United States (sic), is enforced according to the rules of the receiving state. This can often mean that the transferred inmate will serve less actual time than he or she would have had the inmate remained in the United States. Since a transferred inmate is being accorded a benefit not available to a similarly situated American, and one which can often result in a reduction of the actual time served, one factor always present is the likelihood of return to the United States of a transferred inmate.

7. In this regard, the presence or absence of immediate and close family members is an extremely important factor. The location of close family members not only goes to where the sentence can be served most humanely but also to the likelihood that the inmate would wish to be reunited with them after his or her release. Therefore, while not dispositive, family unification or reunification is always a critical consideration in deciding whether to approve or deny a transfer."

[9] No question of transfer would, of course, arise unless, following extradition, the appellant were not only to be convicted but also sentenced to a period of imprisonment of more than six months (that being the minimum period specified in the Convention). On that hypothesis, however, the matters discussed by Mr Brooks would be relevant. In relation to the factors listed in paragraph 5, we note that the charges against the appellant do not involve the presence of a firearm; that, on the information provided to us, she has no prior criminal record, no past illegal entries into the United States, no past deportation from the United States, and no permanent residence status there; that she has strong ties to Scotland and none to the United States, that she has close family members (including young children) in Scotland and none in the United States, and that she has had no residence in the United States. We also note the terms of paragraph 7 of the affidavit. In the circumstances, it appears to us that one cannot predict the appellant's future mental health, as Dr Pasupuleti was instructed to do, on the assumption that, if extradited, she faces the prospect of "decades of incarceration" and "the permanent loss of her children", without taking account also of the prospect that she might be acquitted, or might receive a non-custodial sentence or a short sentence of imprisonment, or might be considered favourably for transfer to Scotland under the Convention.

[10] Dr Lenihan also had regard to a letter from Ms Mary Ellen Warlow, the Director of the Office of International Affairs in the Criminal Division of the United States Department of Justice, which indicated that, if the appellant were to be extradited to the United States, she would be escorted there by two deputy US Marshalls who would take measures to ensure that she did not harm herself. Were she to be held in custody pending trial, she would have access to a physician, nurse, psychiatrist, psychologist and licensed professional counsellor. She would, upon request, undergo a medical and mental health examination. If such an examination revealed mental health problems, she would be provided with appropriate care and treatment. If the Scottish authorities were to provide the US authorities with the appellant's medical reports, they would in turn be provided to the relevant bodies in the United States and to the appellant's court-appointed counsel. In the event of the appellant being convicted, the sentencing court would be provided with information about her mental health (amongst other matters) and with copies of her medical reports. Ms Warlow further states:

"(13) if Ms. Shanks were to be sentenced to a term of incarceration, she would be transferred to the BOP [the US Bureau of Prisons], which would, in turn, review Ms. Shanks' medical records and conduct a preliminary medical screening to determine whether she had any medical issues, including mental health issues, which needed to be addressed;

(14) the BOP, which has at least one physician and psychologist on staff at all of its facilities, would make arrangements for qualified medical practitioners, including a psychiatrist or other specialist if necessary, to provide Ms. Shanks with appropriate medical care and treatment, including counselling and medication, for any medical and/or mental health conditions, including suicidal ideation, depression, and anxiety; and

(15) if Ms. Shanks were to arrive at a BOP facility in, or subsequently suffer from, acute psychiatric distress, the BOP would provide her with immediate access to a psychiatrist and provide an appropriate level of supervision; if the BOP facility were unable to provide Ms. Shanks with appropriate care and supervision, it would transfer her to another facility which would provide such care and supervision."

In his evidence, Dr Lenihan stated that these arrangements were broadly similar to those in Scotland, and in general terms appeared to be reasonable.

[11] Dr Lenihan was an impressive witness, and we accept his evidence. As we have explained, it was largely consistent with that of Dr Pasupuleti. Insofar as their evidence diverged, we consider that of Dr Lenihan to be more reliable. In coming to that conclusion, we are influenced primarily by Dr Lenihan's greater experience, particularly of patients in a custodial setting, as well as by other considerations of lesser importance (such as his examination of the appellant on her own, and his access to relevant information concerning prisoner transfer arrangements and psychiatric care in American federal prisons).

The relevant legal principles

[12] Section 91 of the Act applies where it appears to the judge that "the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him". In such a case, unless an adjournment would be appropriate, the judge must order the person's discharge. In the present case, it was conceded on behalf of the appellant that, for the purposes of section 91 of the Act, it would not be unjust to extradite her. It was however submitted that extradition would be oppressive. In that regard, counsel for the appellant made clear that it was not being suggested that the care of persons with mental health problems awaiting trial in the United States, or of convicted persons, was inadequate: his argument was that the apprehended deterioration in the appellant's health consequent upon extradition, and the risk of suicide, was such that extradition would be oppressive. Counsel for the respondent on the other hand submitted that the level of risk involved did not meet the high threshold required.

[13] Section 91, and the corresponding provisions in section 25 (applicable to extradition relating to category 1 territories), have been considered in numerous cases, many of which were cited to us. A judgment as to whether it would be unjust or oppressive to extradite a requested person is not however a technical issue of law, but requires the court to form an overall judgment upon the facts of the particular case: a judgment which, as Moses LJ observed in United States v Tollman [2008] 3 All ER 150 at paragraph 50, is likely to reflect shades of grey rather than black or white. Previous cases are therefore illustrative of the court's approach rather than definitive of the circumstances in which an order for discharge may or may not be appropriate. That said, it is apparent from such cases as Boudhiba v National Court of Justice, Madrid [2007] 1 WLR 124, United States v Tollman, R (Tajik) v United States [2008] EWHC 666 (Admin), Spanovic v Croatia [2009] EWHC 723 (Admin) and Jansons v Latvia [2009] EWHC 1845 (Admin) that in practice 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. That reflects a number of considerations. One, on which Hale LJ placed emphasis in R (Warren) v Secretary of State for the Home Department [2003] EWHC 1177 (Admin) at paragraph 40, is the public interest in giving effect to treaty obligations in extradition cases. It follows, as Sir Anthony May observed in Jansons v Latvia at paragraph 7, that "this court will not lightly conclude that a threat of suicide is sufficiently grave and likely to be carried out successfully, so that what would otherwise be the due process of extradition under international arrangements should not take place." Another important consideration is the fact that the countries with which such treaties are concluded are likely to have adequate facilities available for treating the health problems of persons whose extradition is requested. That point is illustrated by the case of Boudhiba, which bears some similarity to the present case. There was psychiatric evidence that the appellant was suffering from clinical depression with psychotic features, complicated by post-traumatic symptoms. He was said to be suicidal. One of the psychiatrists expressed the view that extradition would probably lead to further deterioration and an increased risk of suicide. Smith LJ, with whom Newman J agreed, stated (at paragraph 65):

"Spain is a civilised country. The evidence shows that, if extradited, proper examination will be made to ascertain whether the defendant is fit to stand trial. Such examination will also establish whether the defendant is a suicide risk and whether he is in need of psychiatric treatment. So, I would conclude that, even though it may turn out that the defendant is of low intelligence and might be unfit to stand trial, it is not unjust or oppressive to extradite him to Spain."

The present case

[14] Although other cases are, as we have explained, merely illustrative, we note that the circumstances of this case, as disclosed by the evidence, appear to be less serious than those of any case cited to us in which an order has been made under section 91 (and appear, indeed, to be less serious than those of a number of cases in which such an order has been refused). It is not in dispute that appropriate measures can be taken in the United States (and en route to the United States) to protect the appellant's safety, and that appropriate facilities are available there for the assessment and treatment of her mental health. These are important factors. Counsel for the appellant made the point that, however good such facilities may be, and whatever measures may be taken to prevent self-harm, it may not be possible to prevent the appellant from successfully attempting suicide. The availability of such facilities and measures nevertheless reduces the risk. As counsel for the respondent submitted, the existence of a risk is not conclusive: it is necessary to take account of the nature and extent of the risk. The risk is of a nature which, as Dr Lenihan explained, is relatively common in the context of persons awaiting trial or serving sentences after conviction, and is one which law enforcement agencies and prison authorities are used to addressing, in the United States as in this country. In assessing the extent of the risk, it is necessary to have regard to the possibility that the appellant may be acquitted, or given a non-custodial sentence or a short sentence of imprisonment, or transferred to Scotland to serve any sentence here. It is also necessary to bear in mind that she has no history of self harm or attempted suicide, and that her mental health problems are not considered to be of the most serious character. In the circumstances, we do not consider that the evidence considered as a whole warrants the conclusion that the appellant's extradition would be unjust or oppressive.

[15] It follows that this application must be refused.