APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lord Reed Lord Emslie	[2010] HCJAC 123 Appeal No: XC411/08 OPINION OF THE COURT delivered by LORD EMSLIE in the Application (No.2) by KERRY ANN HOWES Appellant; against HER MAJESTY'S ADVOCATE Respondent: for an order under section 91 of the Extradition Act 2003 _______

Appellant: Taylor, Solicitor Advocate; Mason; V Good & Co

Respondent: Hawkes, A.D.; Crown Agent

7 December 2010

Introduction

[1] For a second time in advance of the hearing of her appeal under section 103 of the Extradition Act 2003, the appellant seeks to be discharged from the proceedings on health grounds. She does so in terms of section 91 of the Act, which provides:

"(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."

[2] The applicant's previous application for discharge was refused by this court less than twelve months ago in a decision now reported sub nom. Howes v HMA 2010 SLT 337 (hereinafter referred to as "Howes (No.1)", and one of the issues arising at this stage is whether the circumstances of the case have changed to such a degree that a different outcome would be justified. In very broad terms, the earlier application was founded on mental health considerations alone, in the form of (i) an adjustment disorder reactive to the ongoing extradition proceedings, coupled with (ii) a substantial future risk of suicide in the event of actual extradition to the USA. Now, however, the appellant seeks to rely, not only on similar mental health difficulties (accentuated by the imminence of the main hearing of her appeal in January 2011), but also on certain potentially serious physical complications which might affect her current pregnancy.

The evidence

[3] In support of the present application, evidence was adduced from Dr John A Baird, a consultant forensic psychiatrist with extensive qualifications and experience both in the UK and abroad, and from Dr Patrick Chien, a consultant gynaecologist and obstetrician having special expertise in the monitoring and management of a potentially serious uterine lesion known as a hydatidiform mole. In response, the Crown led evidence from Dr Fionnbar Lenihan, a consultant forensic psychiatrist who had also appeared as a witness when the previous application came to court in late 2009. All of this evidence proved to be substantially uncontentious, and on that basis we do not feel it necessary, for present purposes, to do more than identify the salient features which emerged for consideration.

[4] Mental health: According to Drs Baird and Lenihan, whose evidence was led by reference to reports bearing production nos.24, 40/1, 46 and 48, the appellant continued to exhibit symptoms of anxiety and depression which were "situational", that is, reactive to the extradition proceedings which she faced. She had no underlying mental health problems, and was clearly fit to give instructions for court purposes. Her condition was properly to be regarded as an "adjustment disorder". On a day to day basis, moreover, the appellant was coping with her normal domestic responsibilities including the care of her five children aged from about 13 down to 1. Her children meant the world to her, and she was convinced (apparently on the untested say-so of a social worker) that in the event of extradition she would be permanently and irretrievably separated from them and the younger ones would be adopted. A complicating factor here was that, according to the appellant, she had fallen out with her parents and siblings and could not count on any assistance from that source. In addition, her present husband (and father of the three younger children) was a co-appellant in the same extradition proceedings. Along similar lines, the appellant was convinced that, if born in the USA while she was in custody, her new baby would at once be taken away from her and into the care of the US authorities.

[5] If so separated from all of her children, the appellant would, in her own words, "... have nothing whatever to live for", and both Drs Baird and Lenihan interpreted that as a genuine threat of self-harm, and indeed of suicide, which must be taken seriously. While the appellant still had the care of her children, however, it was safe to conclude that she would not act on such a threat. No attempt at self-harm or suicide had been made to date, and during her latest pregnancy she had (apparently of her own volition, since Dr Chien in evidence confirmed the routine prescription of anti-depressants to pregnant women) come off all anti-depressant medication. A real problem would therefore only arise if the appellant were ultimately to be extradited to the USA, and if that brought about a long-term separation from her children. Not surprisingly, perhaps, her anxiety and depression had become more acute now that a final hearing of her extradition appeal was fixed to take place in January 2011.

[6] In the opinion of Dr Lenihan, however, with which Dr Baird took no issue, the extent of the appellant's mental health difficulties was, at least in part, attributable to her own refusal to discuss relevant issues with social work and psychiatric professionals, or to confront her fears and ascertain whether or not they were well-founded. "Avoidance" of this kind was a normal and natural coping strategy for some people, but in general it could be of only short-term utility. In the longer term, as most "avoiders" came to realise, it was better to confront and analyse a feared situation since that might show it to be less serious, or alternatively more manageable, than had previously been assumed. Both Drs Baird and Lenihan had attempted to discuss such matters with the appellant, but without success.

[7] By comparison with the psychiatric services and facilities available in this country, those existing in the USA could fairly be described as comparable. Various statements and letters received from the US Department of Justice (especially productions 30, 45 and 49) tended to bear this out, albeit subject to two qualifications. The first was that if a baby was born to a woman held in US custody, there would be no possibility of mother and baby being allowed to stay together. Immediate separation was inevitable. The second qualification was voiced by Dr Baird following on a recent visit which he had made to the Federal prison complex in Arizona where, on extradition, the appellant was likely to be held. No criticism could be made of the qualifications or attitudes of relevant medical and psychiatric staff, but the institution itself seemed rather austere and "very very secure". While a prisoner might be well protected from any risk of self-harm, the US prison regime was perhaps less flexible than its Scottish counterpart and did not seem to offer a prisoner the same degree of stimulation in the form of contact with others or participation in various activities.

[8] Physical health: After bearing five children and suffering one earlier miscarriage, the appellant had become pregnant again in late 2009/early 2010. Unfortunately, this pregnancy was blighted by the development of a hydatidiform mole, that is, an abnormal growth on the lining of the uterus supporting the placenta. Most such growths were benign, but, as Dr Chien explained by reference to his report (production 40/2), a small percentage might become malignant and spread to other sites in the body. In February and April 2010 the appellant underwent surgical evacuations of the uterus, and the subsequent monitoring of human chorionic gonadotrophin ("hCG") levels, which would indicate either pregnancy or the presence of a hydatidiform mole, showed that her condition was back to normal. If, however, a woman such as the appellant had suffered two or more pregnancy losses, then the chances of developing a further hydatidiform mole were increased by a factor of 31. On this account, the appellant was strongly advised that she should not risk a further pregnancy, but in July/August 2010 she had (inadvertently, it was said) become pregnant again. This was apparently a normal pregnancy without molar complication, but a problem here was that pregnancy mirrored the hCG changes by which early detection of a hydatidiform mole might be made. Once the baby was born, hCG levels would normally be monitored after 4 and then 6 weeks, and if found to be consistently below 25 units monitoring could safely be discontinued until any future pregnancy occurred.

[9] In the UK, the monitoring of hCG levels in susceptible individuals was highly specialised and limited to particular centres. Within Scotland it was only Ninewells Hospital, Dundee, where Dr Chien was Clinical Director of the relevant Follow-up Service, which had the specialist ability to perform assays capable of achieving the high degree of accuracy required. Other specialist centres were located in Sheffield and at the Charing Cross Hospital in London, and it would be to the latter hospital that all patients would be sent if an urgent need for treatment (usually in the form of chemotherapy) were to be identified in the monitoring process.

[10] By comparison, it was not altogether clear whether the US authorities, as claimed in their recent letters (productions 45 and 49), provided the same, or even better, monitoring and treatment facilities. The nature of the assays performed there had not been disclosed, although it did appear that the possible development of hydatidiform moles was a known problem with which the US medical services were generally familiar, and that post-partum monitoring timescales there were broadly equivalent to those which applied in the UK. In broad terms, there was no reason to regard the US provision for monitoring and treatment in this area as inadequate, and of course during pregnancy itself the natural rise in hCG levels would preclude early detection of any molar complication.

[11] Not surprisingly, the appellant was concerned about this aspect of her current pregnancy, and this would no doubt be a further source of anxiety for her at this time.

Parties' submissions

[12] Before us the parties were in broad agreement on a number of legal propositions which appeared to be vouched by recent authority including the previous decision of this court in Howes (No.1). These were as follows:

1. The threshold to be achieved by an applicant seeking discharge from extradition proceedings under section 91 was undoubtedly a high one.

2. Each case must be determined on its own particular facts and circumstances, with the result that other decisions might be of illustrative value only.

3. Such applications called for the court to make an overall judgment based on the whole evidence and information available.

[13] With these considerations in mind, the solicitor advocate for the appellant made specific reference to Jansons v Latvia 2009 EWHC 1845 (Admin); The Government of the United States of America v Tollman 2008 3 All ER 150; Howes (No.1); Sbar v The Court of Bologna 2010 EWHC 1184 (Admin); and The Queen on the Application of Jan Rot v District Court of Lublin, Poland 2010 EWHC 1820 (Admin). The first two of these were relied on as examples of cases where comparable applications for discharge had been sustained. In Jansons, the risk of suicide had been adjudged "extreme", following a serious (and almost successful) suicide attempt as soon as the relevant extradition order was made, and the Tollman decision illustrated how powerful a combination of both physical and mental problems might be. At para 13 of the decision in Rot, however, the judge had been wrong to hold, by reference to the special circumstances in Jansons, that "... Anything less will not do". Otherwise Howes (No.1), Sbar and Rot merely exemplified situations in which the necessary threshold had not, in the court's judgment, been passed.

[14] Against that background it was submitted that, nearly one year on from the previous application, the court should now reach a different result. The appellant's mental health problems had recently been accentuated after learning of the imminent appeal hearing scheduled for January 2011; she now had significant physical problems in addition, having suffered termination of a molar pregnancy in early 2010 and her current pregnancy being susceptible to a potentially serious, and even fatal, complication; the stress of extradition would be particularly acute for her, as she had never before been out of the UK and had no contacts across the Atlantic; and the combination of all mental and physical aspects should be regarded as sufficient to meet the required threshold and justify a favourable outcome. As in the Jansons case, the present situation could and should be regarded as "extreme".

[15] For the Crown, counsel observed that, as confirmed by this court in Howes (No.1), a material consideration to be weighed in the balance was the public interest in giving effect to treaty obligations in extradition cases. As Sir Anthony May had observed in Jansons, at para 7, "... 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". Along similar lines, in the case of Sbar, Foskett J, at para 15, had commented on the need for circumspection regarding any alleged risk of suicide "... in case there is a perception that raising the issue is an easy way of avoiding extradition". Here, the court had at no stage heard evidence from the appellant in person, and this was significant where the apparent risk of suicide depended on a variety of "worst case" assumptions which she herself had made regarding the possible consequences of extradition to the USA.

[16] As regards medical and psychiatric facilities available in the USA, these were plainly adequate to cope with the appellant's adjustment disorder and recent pregnancy, with or without molar complication, and in all the circumstances this case fell well short of what would be required in order to justify the appellant's discharge at the present time. The cases of Jansons and Tollman were, moreover, readily distinguishable on their particular facts, with Jansons reflecting something in the nature of a benchmark level of seriousness to which applicants under section 91 must aspire. Neither mental nor physical problems were, in this case, sufficiently severe in themselves to warrant the order sought; even in combination they fell short of the requisite threshold; and there had ultimately been no sufficient change of circumstances since 2009 to entitle the appellant to succeed now where she had failed before.

Decision

[17] Against the background of the general principles summarised at para [13] of this court's decision in Howes (No.1), we are satisfied that the appellant's current application under section 91 falls well short of meeting the statutory test. Apart from a measure of accentuation due to the imminence of the final appeal hearing, the appellant's mental state is to our mind very little different from what it was when her previous application failed less than twelve months ago. Her adjustment disorder is essentially unchanged; the apparent suicide risk equally remains much as it was; and there is still no reason to think that the US provision for managing and treating comparable adjustment disorders is in any way inadequate.

[18] A further important consideration here, in our view, is that the appellant's mental condition cannot at this stage be regarded as permanent or even as static. A return to anti-depressant medication, for example, might bring about some improvement. So also might a willingness on her part to confront, rather than avoid, discussion of the situation in which she finds herself. And, in the absence of evidence, we cannot discount the possibility that family members would in fact step in to prevent any enforced separation or adoption of children should the need arise. Further areas of uncertainty at this time are that these extradition proceedings might yet, hypothetically, fail; that the appellant, if extradited, might not be convicted of any offence; that, if convicted, she might not receive a lengthy sentence, or indeed a custodial sentence at all; and that even if a lengthy custodial sentence were to be imposed she might be transferred to serve out that sentence in Scotland pursuant to international arrangements. As it seems to us, the court's obligation to consider the whole circumstances of the case cannot be restricted to the present date at which there is no possibility of any extradition order being made or confirmed. On the contrary, in our view, the court is both entitled and bound to have in mind all forthcoming court proceedings and timescales, and at the same time any apparent potential for change (whether for better or worse) in the appellant's situation at any relevant date.

[19] For all of these reasons, we are not persuaded that the appellant's claim to oppression on mental health grounds is made out.

[20] Turning to the physical problems which were said to make a material difference here, we are again unable to accept that they go far enough to render extradition oppressive in the appellant's case. In the longer term, it is clear that the US medical services are well placed to monitor the appellant's hCG levels from time to time as required, and to provide necessary treatment in the event of any recurrence of her hydatidiform mole. In the short term, there would seem to be no real likelihood of the appellant being extradited abroad while still pregnant, or even in the period immediately following the birth of a new baby. Realistically, therefore, the appellant's condition during her current pregnancy will in our view continue to be monitored and managed within the specialised facilities available here in the UK. No doubt the development of a malignant hydatidiform mole would be a very serious matter, but on the evidence the risk of that is only slight and the appellant's pregnancy has so far given no cause for concern.

[21] With these considerations in mind, we are unable to regard the appellant's physical health grounds as having sufficient merit either.

[22] Even in combination, it does not seem to us that the appellant's mental and physical problems, which would of course fall well short of precluding a custodial sentence in this country, are sufficiently serious or acute to satisfy the statutory test under section 91 of the Act.

[23] This application is therefore refused.