AC-2023-LON-003019 - [2025] EWHC 1851 (Admin)

Mr Fitzgerald’s criticism that theJudge wrongly focussed on suicide risk rather than the cumulative impact of the Appellants mental and physical health and the gravity of the inevitable deterioration on extradition is not borne out by a reading of the judgment.

In her recitation of the legal framework, the Judge directed herself to Surico v Public Prosecuting Office of Bari Italy [2018] EWHC 401 (Admin)) for the proposition that it is not just the risk of suicide the court needs to consider. If the evidence discloses that extradition may result in a deterioration in a person’s mental health so that they will become seriously unwell if they are extradited then that might serve to establish the necessary oppression for the purposes of section 25 [¶42]. The Judge reminded herself of the general guidance that the s.25 test is a fact specific process which requires having regard to ‘all the relevant circumstances’ (South Africa v Dewani [2013] 1 WLR 82, at [¶73]).

Significantly, she directed herself as follows:

“There was an issue raised at the end of the final hearing about whether section 25 applies to the physical or mental health of the RP or whether I can consider the physical and mental health of the RP together. In other words whether section 25 should be read to look at the physical health of the RP and the mental health of the RP separately and not both together, on a cumulative basis. I find that whilst the Act does refer to the mental or physical health of the RP I cannot consider those in isolation and I have to consider both. In other words whist the physical health of the RP on its own or indeed the mental health of the RP alone may not be sufficient to find it would be unjust and/or oppressive to extradite the RP, the two considered together could amount to a finding of injustice and/or oppression.”

The Judge noted the evidence on behalf of the Appellant about the likely deterioration in his condition on extradition. This included Dr Attard’s evidence of a likely ‘substantial deterioration’ [¶17(x)], Dr Watts’ evidence of the risk of a ‘very significant deterioration’ in a prison setting [¶17(x)], Dr Siddiqi’s evidence, that, ‘if the RP’s mental health deteriorated then his physical condition would get worse.’ [¶17(x)] and Ms Henshaw’s evidence that having limited or no access to therapy would result in a ‘significant deterioration in his level of function’ [¶17(x)]. She accepted that extradition would likely result in a deterioration of his mental health and also his physical health to some extent [¶63]. Nonetheless, having heard the evidence she concluded that the mental and physical deterioration could be managed in custody.

For reasons explained above in paragraphs [¶42-45] the Judge was entitled to prefer the evidence of Professor Fazel that the Appellant’s suicide risk did not amount to a substantial risk and the Appellant’s mental disorder was not such as to remove his capacity to resist suicide. The Judge explained her reasons for rejecting Dr Attard’s evidence, which reflect the ‘rigorous yet pragmatic and circumspect’ approach to the evidence required of her (Bobbe v Poland [2017] EWHC 3161 (Admin) at [¶60]):

“in relation to the issue of capacity, I do prefer the evidence of Professor Fazel as he has taken into account factors, such as the RP being able to go out, travel and engage with therapies, including whether to take medication, which I do not feel that Dr Attard placed sufficient weight to. Therefore, I find that the RP does have capacity. In other words, I find that the RP’s mental disorder is not such that it removes his capacity to resist suicide. I note that Dr Attard in his evidence said that there would be a high risk that the RP’s capacity or ability to resist the impulse or desire to commit suicide would be removed or greatly reduced to the point that his decision to commit suicide would not be a free and voluntary decision, should the RP be extradited. That said, I do not find that appropriate weight was given by Dr Attard in this case to the choices that the RP makes in relation to his treatment, therapies etc. I do not find that the RP’s capacity to resist the impulse to commit suicide would be removed in this case”.

The Judge did not misdirect herself by considering suicide had to be an overwhelming prospect before a finding of oppression arises. Her reference to the analysis of the Court in Gromovs v Latvia [2014] EWHC 4155 (Admin) comes after her lengthy citation of the caselaw including Turner v Government of the USA [2012] EWHC 2426 (Admin) and Polish Judicial Authority v Wolkowitz and others [2013] EWHC 102 (Admin) as well as her citation from Government of the United States of America v Assange [2021] EWHC 3313 (Admin; [2022] 4 WLR 11) that it is unnecessary to refer to cases other than Turner v Government of the USA and Wolkowitz and others. Collins J’s analysis at [¶10] of Gromovs underscores the principle that a finding that extradition should be barred because of suicide risk should not be lightly made. Read fairly and in context, the Judge treats the analysis of the Court in Gromovs as consistent with the propositions in Turner and as simply as further expression of her findings.

Despite finding there was no substantial risk the Appellant would commit suicide, the Judge went on, consistently with Turner and Wolkowicz to consider whether the risk to the Appellant could be managed within the German prison estate.

When a requested person is received by a requesting state in the custodial institution in which he is to be held, it will ordinarily be presumed that the receiving state within the European Union will discharge its responsibilities to prevent the requested person committing suicide, in the absence of strong evidence to the contrary (Wolkowicz v Regional Court in Bialystock, Poland [2013] EWHC 102  at [¶10]).

There is no strong evidence to the contrary in the present case. Professor Fazel concluded that, ultimately, the Appellant’s suicide risk would depend upon how the Appellant was managed on extradition. The Appellant’s mental health needs could be met in a custodial setting assuming the standard of mental health care in a German prison is at least as good as that found in the UK. The Appellant’s own expert, Dr Watts, agreed with Professor Fazel’s view that the Appellant could be kept safe in custody, evidence to which the Judge attached weight:

“That said, even if I am wrong about that, the issue is what steps can be taken in German prisons by the authorities. Professor Fazel was of the view that, assuming the German JA have similar provisions to that in UK prisons, they would be able to take steps to keep him safe. I agree. I also bear in mind that this was the oral evidence of Dr Watts, which I will turn to next.

……

Dr Watts stated that he assumed that there would be an equivalent of medical care in person in Germany to that in the UK and that the German JA would transfer the RP to a hospital in forensic setting, which would address the RP’s needs if that was needed.

…..

Dr Watts explained that the RP’s ability to manage day to day, with no family, would be better within the community and that if the RP were in a prison setting without family support would be a huge impact on him. He stated that there would be a very significant deterioration in the RP’s mental state within a prison setting. That said, he told me that prisons can take steps to keep the RP safe in prison, such as monitoring the RP closely and undertaking Mental Health assessment, providing the RP with psychological support and ultimately a transfer to hospital if that was deemed necessary.

I find that this is important. As it is clear to me, despite the evidence of Dr Attard, that the RP can, and would be, kept safe in prison…… and that they would be able to take steps to ensure he did not commit suicide”.

Mr Fitzgerald criticised the Judge for accepting the assumption of Dr Watts about the nature of healthcare in the German prison system. However, the assumptions were supported by further information from the Judicial Authority (5 May 2023) before the Judge. On arrival at Wurzberg Prison, the Appellant will undergo an initial medical and psychiatric examination. The accommodation to which he will be assigned would depend on his mental state. A facility for one-to-one meeting with the prison psychologist will be available. There will also be an option of seeing a psychiatrist who can prescribe medication. Even if a prisoner does not pro-actively seek out assistance, an appointment can be arranged for him in the event of concerns about mental health. A prisoner will be regularly visited by the prison psychologist if there are concerns about suicide risk. If a prisoner is classed as latently suicidal, he will be housed together with at least one other remand prisoner. If an initial medical and psychiatric examination is not possible on the day of arrival the prisoner will be placed in a specially secured room in the psychiatric ward if there is an existing suicide risk or acute suicidal tendency. Camera monitored detention rooms are available in the psychiatric ward for individual or communal accommodation. The cameras have night vision.

Mr Fitzgerald submitted the Judge’s finding that the Appellant would not be placed in isolation was based on a misreading of the further information. Further, the Judge should not have rejected Dr Oehmichen’s evidence as a whole, even if certain aspects were inadmissible (which was not accepted). The Judge wrongly discounted Dr Oehmichen’s evidence that if the Appellant was found to be a suicide risk he would be placed in isolation and could be subject to mechanical restraint. Her evidence in this regard turned on a recitation of German law which was within her expertise. Her evidence about the significant limits on family visits (2 hours a month) and phone calls (two phone calls of 20 minutes a month) on remand at Wurzburg prison was unchallenged. There would be even further restriction in relation to the post remand period. One of the concerns raised by Dr Oehmichen was that it was ‘common practice’ for someone subject to constant observation for suicide risk concerns to have the light turned on in their room overnight every 15 minutes, and the flap noisily opened. This was said to have a ‘significant impact on the inmate’s mental wellbeing.’ It meant those subject to an acute suicide risk would find it almost impossible to have an undisturbed night’s sleep, rendering their mental condition even more precarious.

The Judge was entitled to conclude that Dr Oehmichen was not an expert on the German prison estate (Brazuks v Latvia [2014] EWHC 1021 (Admin) at [42]). Dr Oehmichen is a German criminal defence lawyer. She does not have direct personal experience of German prison conditions. The Judge explained her difficulty with Dr Oehmichen’s evidence was that much of it was outside her experience as a lawyer. The Judge’s ruling records Dr Oehmichen as conceding in cross examination that she did not have prior expertise on inter-prisoner violence and antisemitism and had only researched the issues for the purposes of her report for the Appellant. The Judge was right to find Dr Oehmichen was not entitled to express an opinion on prison conditions as she had not inspected prisons in the way required for someone to be an expert. Whilst Dr Oehmichen was entitled to assist the Court by providing the relevant open source material, the Judge found she had cited the relevant material selectively:

“Further it was a concern to me that not all relevant documents had been referred to by her. For example, she had not referred to the response of the German JA to the CPT report which is of course a highly relevant and important part of any open source material”.

The Judge accepted the support of his family is important to the Appellant. She also accepted that family visits would be restricted, as in a UK prison. Nonetheless, she found, as she was entitled to on the evidence, that the Appellant, would have contact, albeit on a more restricted basis [¶17(xii)]. The further information from the Judicial Authority confirmed that the relevant prison has night vision capable camera monitored rooms in the psychiatric ward so Dr Oehmichen’s concern about observations to manage the Appellant’s suicide risk disturbing him is not borne out. The Judge acknowledged the Appellant could find himself alone in a specially secured room in the event of acute suicidal tendencies but concluded that the Judicial Authority would take the necessary steps to keep the Appellant safe and that, ‘they would monitor this carefully and should a temporary period of the RP being kept alone be required, this would be for as short a time as necessary.

In relation to concerns about antisemitism, the further information from the Judicial Authority did not support Dr Oehmichen’s concerns:

“In order to prevent any antisemitic attack, the prisoner would at the beginning of his detention be offered the opportunity to contact the staff responsible for him at any time if he observes any signs of antisemitic behaviour on the part of fellow prisoners. The staff would be ordered to be particularly vigilant if there is any suspicion of an antisemitic attack; the prisoner’s environment is observed by the ward officers.

In order to avoid altercations, Jewish prisoners, for example, are generally not housed together with Muslim prisoners in a detention room at Wurzburg Prison. This serves as a preventative measure to ensure that even discussions about religion and faith are prevented, at least in the detention area.

The ward officers are also sensitised and pay special attention to any specific developments in this direction, which they then report to the department management. In the present case, central placement would take place in the remand centre in order to enable close monitoring by the officers stationed there. Should antisemitic incidents nevertheless occur, the offenders would be physically separated from then on. In addition, disciplinary measures would be consistently taken and criminal charges would be filed against the perpetrators” [¶46.5iii].

…

…. A general precautionary separate accommodation of Jewish prisoners in a specially protected area does not take place and is not considered necessary. However, if there were any concrete indications of such a risk, a separation of prisoners suspected of having antisemitic bias could be considered.

Over the past 20 years, no antisemitic attacks were recorded in the St. Georgen Bayreuth prison. There are also, today, prisoners of the Jewish faith in the St. Georgen-Bayreuth prison without any problems ever arising in this regard” [¶46.6. iii].

Given the Judge was entitled to reject the Appellant’s case that he would commit suicide whatever steps were taken by the prison authorities, it is not necessary to consider whether or not the decision in Modi refines the Turner principles in this regard or whether the decision is to be considered as a case ‘demonstrating the practical approach to be adopted to the principles identified in Turner.’ (Hegary v Spain [2014] EWHC 1280 (Admin) at [¶16].

Mr Fitzgerald submitted the Judge reached an unreasonable conclusion as to the impact of extradition and incarceration on the Appellant’s physical health. Ms McCarthy did not examine the Appellant and did not seriously dispute the diagnoses of Mr Siddiqi as to pelvic floor dyssynergia and complex pain syndrome. The Judge wrongly focused on the pelvic wand and the Appellant’s experience in HMP Wandsworth which could not have reasonably provided the Judge with reassurance. Further the Judge failed to have any, or any proper regard, to the complex interrelationship of the Appellant’s medical conditions.

Having heard evidence about the Appellant’s physical health the Judge concluded as follows:

“whilst I accept that the RP has mobility issues and uses a crutch to mobilise, this could be catered for in prison as it was when he was remanded at HMP Wandsworth

…

The more problematic issue for the RP is his bowel/bladder condition. …..Therefore, I find that the wand has no benefit to the RP and he does not need this….. The RP, whilst I accept he has difficulties, coped whilst he was in prison. His physical conditions were managed in prison, albeit for a fairly short period of time. Nevertheless, I find that this is important. I also note the evidence of Ms McCarthy, which is that these conditions can be managed in prison, with visits to professionals as and when required. I accept that the RP is not going to have the same level of therapy as he currently received but he will, I find, have sufficient therapy and treatment for his condition to be managed”.

Further, whilst I accept the evidence that stress can make his physical conditions worse, I find that this would be for relatively short time as he adjusts to being in prison in Germany, as it was when he first went to prison in the UK. The UK prison authorities managed his condition and I find the German prison system would do the same. I note that the RP did not require hospitalization for any of his conditions when he was remanded in the UK and I find that the prison system in Germany would take such steps as necessary to manage his condition”.

The Judge was entitled to proceed on the basis of the evidence of Ms McCarthy that the Appellant’s condition can be managed in prison. There was no challenge to her evidence in this regard. The Appellant’s remand in HMP Wandsworth provided objectively verifiable evidence of how the Appellant managed in custody (Bobbe v Poland [2017] EWHC 3161 (Admin)). She acknowledged the remand in HMP Wandsworth was short. The prison records paint a different picture to the Appellant’s accounts of his difficulties in several material respects. The Appellant told Dr Attard he did not empty his bowels for 11 days in prison but the prison records demonstrate the Appellant did not report any difficulty opening his bowels during his time there. The Appellant’s proof describes blood seeping from his ear after an antisemitic attack by his cellmate. The only relevant reference in the prison medical records is to a diagnosis of a bleed from an ear infection several days earlier on his arrival in custody.

As the Judge found, the Appellant has chosen not to take medication recommended by Professor Fazel, Dr Attard and Dr Watts to improve his mental health. He has the means to call, instead, upon a wide range of privately funded therapy services to relieve his symptoms which will not be available in a prison setting in either the UK or Germany. This cannot form the basis for finding extradition will be oppressive. The threshold for the demonstration of oppression was described in Mikolajczyk v Wroclaw District Court [2010] EWHC 3503 at [¶16] as follows:

The Judge’s conclusion that the German prison authorities can manage the Appellant’s health and his suicide risk was not wrong. In coming to her assessment that extradition would not be oppressive or unjust she was entitled to take into account the seriousness of the alleged offending (“there is a public interest in giving effect to treaty obligations and this is an important factor to have in mind” Turner v Government of the USA [2012] EWHC 2426 (Admin) at [¶28]).

The flaws contended for by Mr Fitzgerald are not made out and the judge was entitled to conclude that extradition would not be oppressive or unjust. The fresh evidence is considered below.