Case No: CO/15326/2013
Neutral Citation Number: [2014] EWHC 1879 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 10/06/2014

Before:

LORD JUSTICE TREACY
and
MR JUSTICE NICOL

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Between:

	Eileen Clark	Claimant	
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	Secretary of State for the Home Department

Government of the United States of America	Defendant

Interested Party	

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Mr Edward Fitzgerald QC & Mr Ben Cooper (instructed by Liberty) for the Claimant
Ms Clair Dobbin (instructed by Treasury Solicitor) for the Defendant
Ms Rachel Kapila (instructed by Crown Prosecution Service) for the Interested Party

Hearing date: 20th May 2014
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Judgment
Lord Justice Treacy: 
1.	This is the judgment of the Court to which we have both contributed.
2.	We are considering a renewed application for leave to seek judicial review after refusal by Irwin J. The claimant’s extradition is sought by the US government on a charge of international parental kidnapping pursuant to Part 2 of the Extradition Act 2003. 
3.	The early history of these proceedings is set out in the judgment of this court in Clark v USA [2012] EWHC 957 (Admin) at paragraphs 2 and 3. Those proceedings dismissed an appeal from the decision of the Senior District Judge on 14th March 2011. In the course of the High Court proceedings a psychiatric report from a Dr Fazel dated 4th January 2012 (Fazel 1) was considered. Resistance to extradition on the basis of abuse of process relating to an alleged limitation bar was abandoned. Grounds based on passage of time and consequent alleged oppression were rejected. 
4.	Very shortly after those proceedings terminated, the claimant applied to an American court seeking to offer to surrender to the US authorities in lieu of extradition. That motion was refused. 
5.	On 25th June 2012, Ruth Aitken, a chartered psychologist, provided a report to new solicitors instructed by the claimant, asserting that she suffered from severe post traumatic stress disorder (PTSD) symptoms, moderately severe depression, and severe anxiety. Ms Aitken stated that facing her ex-husband in court would have a very serious impact on the claimant so that her current condition might worsen significantly. Use of a video would not assist: revisiting events in her memory of domestic violence would lead to severe distress. 
6.	Representations were then made to the Home Secretary based on the Human Rights jurisdiction described at paragraph 63 of McKinnon v USA [2007] EWHC 762 (Admin) (McKinnon 1). Based on an asserted history of domestic violence and abuse occurring prior to the claimant’s separation from her ex-husband in 1994, and supported by essentially hearsay witness statements made in 1995 and 2012 (after the High Court decision), and Ms Aitken’s report on the claimant’s mental state, the contention was that extradition would infringe the claimant’s ECHR Article 8 rights and also her rights under Article 5. 
7.	By letter of 14th February 2013, the Secretary of State decided to maintain the order for the claimant’s extradition. 
8.	On 26th April 2013 Dr Fazel provided a further report (Fazel 2), and, based on this, together with an invitation to reassess the case in the round, the Secretary of State was invited to give a further decision. That decision was made on 6th August 2013, and having considered the position, the Secretary of State maintained the extradition order. 
9.	It was that decision which led to this application for judicial review. As stated, permission was refused on the papers, leading to this renewed application. 
10.	Fazel 2 commented that the claimant’s mental state was similar to that at his previous assessment. She was not clinically depressed. She did not suffer from a severe mental illness. Agoraphobia, from which she had previously suffered, had receded and she was not currently suffering from it. There was no generalised anxiety disorder, but there was a phobia related to flying. 
11.	The claimant was suffering from PTSD related to her history of domestic violence and abuse in the 1990’s. Those symptoms had been present for years. They had become worse since the claimant’s arrest in 2010 and the continuation of these legal proceedings. 
12.	Overall and consistent with Ms Aitken’s evidence, together with the “limited corroboration” from the witness statements, Dr Fazel’s opinion was that “a current diagnosis of PTSD is likely, which is moderate in severity.” 
13.	Dr Fazel expressed a “concern” that the claimant would not be able to follow the US legal proceedings or give evidence in court as she would be likely to suffer from acute anxiety symptoms. If medication were given, he was concerned that the dosage would sedate her and hamper her ability to participate in proceedings. 
14.	Fazel 1 had also touched on PTSD since the claimant’s general practitioner had raised that possibility. Dr Fazel referred to the claimant’s proof of evidence which had been before the District Judge and which itself goes into detail of domestic violence and abuse. The primary focus of Fazel 1 was directed to assertions raised shortly before the date originally fixed for the High Court hearing relating to fear of flying and agoraphobia as being amongst the grounds put forward for resisting extradition. However, he appears to have carried out a full mental assessment. He did not consider that the claimant suffered from a severe mental illness. Her agoraphobia was not severe. She suffered from a fear of flying and mild to moderate anxiety symptoms. There was possible PTSD arising from the claimant’s arrest and detention, but it would not meet the criteria for PTSD. Notwithstanding his examination of the claimant and references to her history of domestic abuse, Dr Fazel did not make any link between that abuse and PTSD. 
15.	Following Fazel 2, the Secretary of State was asked to halt the claimant’s extradition to the USA. Since the 2003 Act, the Secretary of State does not have a residual open-ended discretion to stop extradition to a country such as the USA. However, she can be asked to do so if something has arisen between the final stage of the judicial extradition proceedings and actual removal which would make the removal contrary to the requested person’s rights under the European Convention, as paragraph 63 of McKinnon 1 shows. 
16.	As already stated, in this case the Secretary of State entertained such submissions on the claimant’s behalf, but rejected them in her letter of 6th August 2013. That rejection is challenged in the present proceedings for judicial review. Judicial review is the correct procedure. During the course of the hearing we canvassed with Mr Fitzgerald QC for the Claimant whether the right route would have been to seek to reopen the appeal to the High Court under CPR r.52.17, but that is a course of last resort and we were rightly reminded that it is not available in circumstances such as the present where the Secretary of State’s decision could be challenged by judicial review – see Taylor v USA [2009] EWHC 1020 (Admin). 
17.	Two grounds are put forward:
i)	The PTSD is a subsequent diagnosis fulfilling the test in paragraph 63 of McKinnon 1. Moreover, no Article 8 point was taken in the judicial proceedings. 
ii)	If the evidence of Dr Fazel is new, then the matter should be looked at holistically, applying the objective consideration set out at paragraph 66 of McKinnon v SSHD [2009] EWHC 2021 (Admin) (McKinnon 3). The approach taken should include matters such as delay in the light of the more focussed approach of the courts to Article 8 rights in extradition cases since H(H) v Italy [2013] 1 AC 338. 
18.	At paragraph 66 of McKinnon 3 Stanley Burton LJ said:
“In my judgment, it follows from the basis of the implied power of the Secretary of State that is the subject of these proceedings, that the question for the court is not whether the Secretary of State properly exercised her discretion, or reached a sustainable decision, but whether objectively the evidence before the Secretary of State established a real risk that the claimant’s extradition would infringe his Convention rights, and in particular his right not to be subjected to treatment that would contravene Article 3.”
19.	It was accepted by the Secretary of State, at least for the purposes of this application, that this was the approach that the court should adopt. 
20.	The ‘private life’ which must be respected in accordance with Article 8 of the Convention includes a person’s physical and mental integrity. The case presented to the Secretary of State was that the claimant was suffering from PTSD because of domestic abuse and this condition would be exacerbated if she were to be extradited to the USA. In some (but very rare) cases removal may have such an extreme effect on a person’s mental state that it would constitute ‘inhuman or degrading’ treatment. Removal would then violate Article 3 of the Convention and would be prohibited. Such cases are very rare (in part) because of the very high threshold which is set by this unqualified obligation in the Convention. A lower threshold may suffice to constitute an ‘interference’ with private life for the purposes of Article 8(1), but such interferences will not be a violation of the Convention if they are proportionate and otherwise necessary in a democratic society for one of the legitimate aims enumerated in Article 8(2). There is no doubt that giving effect to extradition arrangements is a legitimate aim. The key question for the Secretary of State in Convention terms in this case (as in so many others) therefore was whether the interference was proportionate.
21.	As to ground (i) it is important to bear in mind paragraph 3 of Maurice Kay LJ’s judgment in McKinnon v SSHD [2009] EWHC 170 (Admin) (McKinnon 2). The policy of the 2003 Act is to put an end to serial applications raising issues which have already been or should have been raised in the earlier proceedings. The Secretary of State’s McKinnon jurisdiction is an exceptional one limited to fresh evidence. McKinnon was a case where the evidence was truly fresh. As Maurice Kay LJ said in McKinnon 2 the Asperger’s Syndrome from which Gary McKinnon suffered had not been suspected until 4 weeks after his appeal had been dismissed by the House of Lords. Late diagnosis of such a condition is not uncommon – see McKinnon 2 at paragraph 1. This case is much less clear cut in that respect. \\We note additionally that at paragraph 16 of McKinnon 2 the court stated in clear terms that McKinnon could not succeed on Article 8 grounds if he failed on Article 3. 
22.	We analyse Dr Fazel’s reports as follows: 
a)	Dr Fazel’s first report as to his instructions shows that he was asked to consider the claimant’s mental state, with fear of flying as one element. His second report suggests that his initial instructions were limited to a consideration of mental state based on post-arrest matters. This is an unsatisfactory inconsistency. It seems to us that his first report was prepared on a rather wider basis than his second report suggests.  He records his instructions as including ‘the likely effect on Ms Clarke’s mental health of being extradited’.
b)	His second report says that the claimant is in the same mental state as before and does not suffer from severe mental illness. True it is that he now diagnoses PTSD arising from marital abuse, but he does not explain how he missed this before beyond unconvincingly raising the question of what his instructions were. Nor does he explain how, having initially concluded that PTSD did not exist, it now does. 
c)	Dr Fazel was aware of the claimant’s complaints of domestic abuse at the time of his first report. We note that in his first report Dr Fazel did find some symptoms which he later relied on for the PTSD diagnosis – nightmares, difficulty sleeping, hypervigilance, exaggerated startle response. This is not, therefore, a case of the claimant putting forward new symptoms between the two reports. However, in Fazel 1 Dr Fazel did not link those symptoms to past domestic abuse, nor did he think, despite noting those symptoms, that a diagnosis of PTSD was appropriate. 
d)	The claimant had raised domestic violence in the proceedings before the District Judge but did not put the 1995 statements before him. They were readily available and the 2012 statements were obtained very soon after the High Court proceedings failed. The material was in truth easily available to the claimant and her lawyers. 
e)	Caution needs to be taken with an email from previous counsel as providing an excuse for not advancing this material sooner. It is a late and incomplete explanation for an obvious point which should have been dealt with long ago: it is of a piece with Dr Fazel’s failure to explain the matters raised at (b) above. Paragraphs 32 and 35 of Three Hungarian Judicial Authorities v Fenyvesi [2009] EWHC 231 (Admin) underline the need for the party seeking to persuade the court to accept evidence as fresh to explain this. 
f)	If the claimant truly was suffering from PTSD by reason of domestic abuse, a condition which Dr Fazel now says is longstanding, there is no explanation as to how she failed to say sufficient to trigger an investigation of that before her High Court claim failed. 
23.	Accordingly, we are dubious as to whether this case satisfies the McKinnon 1 test. However, that is beside the point because the Secretary of State’s decision rests on the second issue, she being prepared to consider the two reports at face value despite her reservations about them. 
24.	As to ground (ii), we approach the matter on the basis that for the purposes of this application, we go beyond a Wednesbury review, and apply our own objective assessment of whether the matters now raised relating to PTSD are such as to raise an arguable case of disproportionate interference with the claimant’s Article 8 rights when other matters such as delay are brought into the balance. This accords with the approach which the Secretary of State and the claimant invited us to take for the purposes of the application for permission to apply for judicial review.
25.	There is a strong public interest in extradition between friendly nations. Norris v USA (No 2) [2010] 2 AC 487 makes clear the high level of judicial expectation that Article 8 considerations will only rarely outweigh the public interest. H(H) and the practice of the courts since then may indicate a greater willingness to apply close scrutiny to Convention-based arguments, but examples of Article 3 claims successfully defeating extradition are rare. Article 8 involves a lesser degree of interference with physical and mental integrity.  However, unlike Article 3, it is a qualified right and so, even if there is such interference, extradition would only amount to a violation of the right  if it was a disproportionate interference or otherwise not necessary in a democratic society.
26.	As to the matters relied on beyond the new diagnosis, we do not consider that the argument based on the asserted triviality of the offence carries any real weight. The removal of children from another jurisdiction without parental consent is a serious matter and recognised as such by our courts and foreign courts. The need for international cooperation is particularly strong. In this case the impact of the admitted removal of three children from the USA in 1998 continued over a number of years until each of them entered adulthood.
27.	Nor do we consider that there is any weight at all to be attached to allegations that the pursuit of proceedings in the US are due to improper pressure being brought to bear by Mr Clark. The evidence for this is wholly insufficient as was recognised by the claimant before the District Judge where her counsel expressly conceded that there was insufficient evidence to found an assertion that the prosecution was malicious. There is nothing to displace the presumption of due process by the US prosecuting authorities. 
28.	Next, we consider delay. This is undoubtedly substantial since the children were removed from New Mexico in 1995 and from the US in 1998. However, this issue was fully litigated unsuccessfully by the claimant in the previous proceedings in the context of whether extradition was barred because it would be oppressive. The rejection of that formal bar to extradition does not preclude us from considering the impact of the passage of time in the overall judgment as to whether removal would now be a disproportionate interference with the claimant’s private life. But the District Judge’s findings are relevant. Whilst the claimant was not found to be a classic fugitive, there was a clear finding by the District Judge that the claimant was aware of the US proceedings and that she was at the very best wilfully blind to them.
29.	There was no fault on the part of the US authorities. In these circumstances, whilst delay has to be weighed with care, it must in my view be seen in the context of the District Judge’s findings. Furthermore the District Judge and High Court found that the claimant took pains not to alert the authorities in the USA to her whereabouts. She did not, for instance, renew her passport when it expired. The High Court observed that the New Mexico authorities only discovered the claimant’s location in 2008. They informed the US federal government who instituted federal criminal proceedings the same year. This is not, therefore, a case where the passage of time before the institution of the proceedings can lead to an inference as to the importance or unimportance which the requesting state attributes to the offence (contrast Lady Hale in H(H) at [46]). 
30.	It seems to us that the evidence of Ms Aitken and Dr Fazel does not establish a truly cogent case based on PTSD. On the basis of those reports the diagnosis of domestic abuse related PTSD is one of “moderate severity” in the context of a finding that the claimant does not have a severe mental illness. Whilst Dr Fazel raises “concerns” as to Claimant’s ability to follow or participate in court proceedings in the US should she be returned, we do not consider that those attain a level requiring this court to intervene. The US judicial system has, we are sure, safeguards and has processes designed to meet such difficulties to which we are entitled to have regard. 
31.	It seems to us, therefore, that the matters now raised even taken together with the matters such as delay do not provide an arguable case that the decision of the Secretary of State was wrong, and that extradition would be disproportionate with regard to the claimant’s Article 8 rights. 
32.	Accordingly, we would refuse this renewed application.