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

The Appellant relied on reports from specialists in Israel, including a report from Gal Sela a neuropsychologist (dated October 2021) and a clinical opinion from Dr Orit Stein-Reisner, a specialist in psychiatry, dated 18 January 2022. The reports had been produced in the context of contested litigation in Israel about the extent of the Appellant’s disabilities after his accident in 2018. The report of Dr Gal Sala concludes by saying: “In light of his difficulties it is recommended to set his disability levels at 25%”. The report of Dr Reisner refers to “-40% permanent disability in accordance with adjusted Section 34(a)(d) of the National Insurance Institute regulations….”. On inquiry this Court was informed that the Judge was aware of the Israeli litigation, which is ongoing.

In producing his report, Dr Attard, a forensic psychiatrist instructed on behalf of the Appellant, relied, amongst others, on the reports of Dr Stein-Reisner and Gala Sela. He also relied on the Appellant’s account of relevant matters and observations from the Appellant’s solicitor. Dr Watts, a clinical neuropsychologist relied, in part, on the reports of Gal Sela and Dr Stein Reisner as well as the Appellant’s account of matters.

Professor Fazel was instructed on behalf of the Judicial Authority. He identified the ‘medico-legal context’ in which the Israeli reports had been produced. He also considered there to be a disparity between the medical evidence of the Appellant’s difficulties and the Appellant’s actions in travelling to the UK for his honeymoon in November 2022. The Appellant’s actions were, he said, “...not consistent with someone with a severe mental health condition, where typically individuals are too unwell to travel, work at all or motivated to attend cultural activities”.

Professor Fazel explained his approach to the assessment of the Appellant’s mental health as follows:

“5.1

I note that some of the medical reports included in the case papers were instructed by legal representatives acting for Mr Cohen for specific medico-legal reasons. It is not clear if there have been other commissioned reports that have not been included in the medical bundles. In coming to my clinical opinion, I have considered these reports, but also placed weight on those assessments that are independent of this process, including those conducted in hospital and at HMP Wandsworth”.

In relation to the Appellant’s time in HMP Wandsworth Professor Fazel said as follows:

“3.10

I read through Mr Cohen’s prison medical records. These are important in so far as the mental health assessments are outside of a direct medico-legal context (ie not undertaken for the purposes of a report in relation to extradition). On reception to HMP Wandsworth Mr Cohen said that he did not find any sounds startle him, reported no previous episodes of self-harm and he also stated that he would “never kill himself due to religious beliefs” (4/11/22 page 225). He was referred and reviewed by the primary mental health team. Mr Cohen appeared in low mood on 5/11/22 and was assaulted by a cellmate on 7/11/22, when he sustained some bruising to an eye and his lip. He reported being depressed and experiencing low mood on 8/11/22 with suicidal thoughts: ‘verging on tears at times’. In this comprehensive assessment, Mr Cohen did not bring up flashbacks. On 9/11/22, he was described as ‘bright and stable’, with no weight loss (10/11/22). He was referred to psychiatry in a non-urgent manner, which was the 4-week waiting list. On 16/11/22, he was described as anxious and denied suicidal thoughts. I did not find any mention of any self harm episode in prison (and it is possible that it was not reported to healthcare staff). Mr Cohen left prison around a week later. The overall clinical picture is quite mixed with a variable mental state, and despite the assault, Mr Cohen was not thought to require urgent psychiatric treatment or assessment by a psychiatrist”.

Professor Fazel assessed the Appellant during an interview with him and his wife. The Appellant and his wife took issue with the approach adopted by Professor Fazel at the interview, as explained by Dor Cohen in her witness statements:

“Bar was crying, punched a wall and shouted that Professor Fazel wasn’t letting him fully explain his answers …. When we returned to the room Bar tried telling Professor Fazel about some matters that were important to him including his medical history, PTSD and recent self-harm and suicide attempts but Professor Fazel stopped Bar…saying there was not enough time to discuss these and they’re not important…” (second statement of Dor Cohen).

“Professor Fazel seemed unaware of Bar’s full surgeries history so Bar tried to explain it to him but Professor Fazel interrupted him saying it’s not important and that he had enough information” (third statement of Dor Cohen).

“…Bar tried to further explain the position to Professor Fazel but he said he didn’t need this information...” (third statement of Dor Cohen).

The Appellant’s proof dated 16 December 2022 describes the Appellant as struggling with leaving the house, not being able to do anything on his own and needing the help of his wife and mother.

The Appellant did not give evidence at the hearing in September 2023. The Judge did not draw an adverse inference in this regard but she addressed the implications as follows:

“This is important as the RP made statements to medical experts about his medical conditions and they how they affected him but these accounts were not able to be challenged as he did not give evidence. In particular, he was not able to be asked about accounts he gave about being unable to go out and needing constant help and supervision from his family. Yet, it was clear from other accounts, that he was doing things, such as he got married and he travelled to the UK for his honeymoon, where he was planning on going out to restaurants and to a concert at the O2…..”[¶17(v)].

Mr Fitzgerald criticised the Judge’s reference to the Appellant’s ‘accounts’ in the paragraph cited above from the Judge’s ruling as too vague. He submitted the Judge had confused the Appellant’s condition prior to his honeymoon with his subsequent decline and more relevant condition at the time he was assessed by the medical experts. There is, he said, a recurrent theme throughout the judgment that the Appellant had made a significant recovery from his injury which fails to focus on his condition at the date of the hearing (September 2023) and his likely state if extradited. The Appellant’s ability to work in Israel, to marry (in 2021) and later travel to the UK for honeymoon were not of primary relevancesince the key issue was the Appellant’s mental state at the time of the hearing and during 2023, after many incidents of self-harm. The Judge had engaged in a series of temporal leaps, from the Appellant’s period of activity in 2019 to his marriage in June 2021, and to his embarking on a honeymoon in 2022, as if these undermined findings about his grave mental condition at the time of the hearing in September 2023. Moreover, the Judge failed to recognise that even at those earlier stages, the Appellant’s condition was extremely patchy and at all times since 2019 fraught with traumatic flashbacks, panic attacks and more recently impulsive, self-harming behaviours.

The report of Dr Stein Reisner dated 18 January 2022 described the Appellant as having deteriorated after further surgery in 2020 and experiencing “a severe crisis and a deterioration in his condition in every regard which continues to this day”. His treating psychotherapist, Tali Katz, records feelings of hopelessness, sleepless nights and nightmares throughout the months from February to October 2022. Dor Cohen records her husband having a panic attack in July 2022. Yet, despite these apparent difficulties the Appellant embarked upon a honeymoon to the UK in November 2022. He had booked tickets for a concert at the O2 Arena and made plans for other cultural activities, before the plans were cut short by his arrest at Heathrow airport. The Judge had before her the opinion of Professor Fazel that the Appellant’s activities were not consistent with an individual in the grip of severe mental health difficulties, as suggested by the above-mentioned reports. The Judge was entitled to contrast the account in the Appellant’s proof and the medical reports of the Appellant’s physical and mental health difficulties with the Appellant’s actions during the same period and to conclude he was not as restricted in his activities as he had claimed.

In oral submissions Mr Fitzgerald embarked on a forensic assessment of the relevant medical reports to submit that they are, on analysis, consistent with the Appellant’s actions. He also criticised Professor Fazel for alleged errors in his factual understanding of the Appellant’s history. However, the Judge was not making forensic findings in this regard. She was simply directing herself as to the need to exercise caution in her approach to the evidence. By not giving evidence at the hearing the Appellant’s account of the extent of his health difficulties had been largely mediated through the evidence of his treating clinicians who were not called to give evidence and whose evidence could not be tested. Some, at least, of the medical reports from Israel had been produced in the context of contested litigation about the extent of the Appellant’s health difficulties. Her approach was legitimate:

“60 . …national authorities and their courts must apply a rigorous yet pragmatic and circumspect approach to the evaluation of evidence. Case C-578/16 PPU CK et ors v Republic of Slovenija (16 February 2017) (“CK”) is not authority for the proposition that the authorities or the courts must accept without question or challenge the evidence of a requested person that his or her condition is so serious that any act of transfer to enable that person to face justice in a state where he or she has committed or allegedly committed a crime should suffice to prevent transfer

…..

64 the Court was conscious that those opposing removal might exaggerate their condition or make statements to medical experts designed to generate the evidence needed to defeat the threatened removal. …. The authorities (and the courts) are bound to form their own considered judgment not only of the quality of the evidence before but also as to the risk that it has been exaggerated for forensic ends.”