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

The Judge concluded that Dr Attard and Professor Fazel were both credible witnesses but she preferred the evidence of Professor Fazel. She explained her reasons as follows:

“I did however note that the presentation of RP in his interview with Professor Fazel was somewhat different to that when he saw and spoke to experts instructed on behalf of the RP. I find that this is important, as it was clear, based on subsequent complaints made by the RP and his wife, that they saw Professor Fazel as somewhat hostile. For the avoidance of doubt, I do not find that Professor Fazel was anything other than professional in his interview and that he was merely performing the task he had been asked to do. That said, the RP and his wife clearly wanted to direct the way in which the interview took place, which seems to have been allowed by the experts instructed by the defence, but Professor Fazel did not allow this. Therefore, I find that this means that the presentation of the RP in this interview may have been more realistic and given a truer picture of the RP’s mental health condition.”

Mr Fitzgerald submitted that these reasons were irrational. They suggested that Dr Attard had permitted the Appellant to direct the interviews yet Dr Attard and Dr Watts had considered, and discounted, the possibility of malingering. The Judge had failed to address the significance of finding the Appellant had PTSD which was contrary to the opinion of Professor Fazel. The Professor’s opinion in this regard was contrary to the opinion of all the other medical experts. The fact of his atypical and unsustainable view should have called into question his wider analysis of the Appellant’s condition. The Judge had made a ‘core error’ in this regard because Dr Attard’s evidence was that patients with a history of both PTSD and depression have a suicide rate higher than that associated with the presence of one condition alone. Professor Fazel had given inadequate reasons for rejecting the views of the other medical experts some of whom had treated the Appellant for years whilst he had had limited opportunity to observe and examine the Appellant. Factual inaccuracies founded a number of his conclusions and he had failed to engage with the gravity and impact of the Appellant’s brain injury.

The hearing before the Judge lasted four days and she heard evidence tested under cross examination which this Court has not had the benefit of hearing. It is well established that an appeal court should be slow to interfere with findings reached by a Judge after hearing evidence. Whilst the general proposition may be said to be tempered in the case of expert evidence and written reports, it is apparent that the expert evidence developed in material ways during oral examination. For example, Professor Fazel conceded that Appellant’s depression was moderate rather than mild and Dr Watts accepted the Appellant’s suicide risk would be manageable in the German prison environment if treatment was the same as in a UK custodial setting.

The Judge explained her reasons for preferring Professor Fazel’s evidence. Her reasoning is consistent with her earlier self-direction about the need to take a cautious approach to the evidence before her.

Having heard the evidence, the Judge was entitled to rejected Professor Fazal’s opinion that the Appellant was not suffering from PTSD whilst nonetheless accepting his opinion that the Appellant had mild to moderate depression which was not such as to remove his capacity to resist the impulse to commit suicide. The Appellant’s own expert, Dr Attard, expresses the opinion that the evidence in the literature clearly suggests a strong link between depression and suicide risk [¶143].

In his report Professor Fazel explained that he had reached a view about the severity of the Appellant’s depression based in part on the Appellant’s decision not to take anti-depressant medication but to engage instead in therapy [¶ 5.3]. In coming to her assessment of the Appellant’s mental health difficulties it is apparent the Judge attached particular weight to the Appellant’s decision in this regard:

“I bear in mind, as set out above, that the RP has failed to engage in treatment which has been recommended. I cannot ignore the fact that the RP is able to take medication for his mental health that would likely improve it but he has refused to do this.” [¶52].

The Appellant’s own experts agreed with Professor Fazel that medication would improve the Appellant’s mental health. Dr Attard explained that treatment with anti-depressant medication is likely to be of significant importance in ameliorating the symptoms of PTSD and reducing the risk of suicide. In oral evidence Dr Watts accepted the Appellant had capacity to make decisions including deciding not to take medication which in conjunction with the other therapies, would have a better outcome generally, in relation to his depression. In response, Mr Fitzgerald highlighted the Appellant’s reason for not taking the medication, said to be his PTSD, but there is no indication before the Court that the Appellant has sought the psychological support to assist him in taking the medication as recommended by Dr Attard.

The Judge was entitled to prefer the evidence of Professor Fazal.