ROBERT BRUCE WRIGHT FOR JUDICIAL REVIEW OF A DECISION OF THE SCOTTISH MINISTERS
| OUTER HOUSE, COURT OF SESSION |
| PA720/01 | OPINION OF LORD HARDIE in the Petition of ROBERT BRUCE WRIGHT Petitioner; for Judicial Review of a decision of the Scottish Ministers ________________ |
Petitioner: Bovey, Q.C., Blair, Advocate; Balfour & Manson
Respondents: Doherty, Q.C. et Crawford, Advocate; Richard Henderson, Solicitor to the Scottish Executive
9 July 2004
Background
[1]On 7 March 2001 the procurator fiscal at Edinburgh presented a petition (7/23 of process) to the sheriff at Edinburgh in terms of sections 8 and 9 of the Extradition Act 1989 (hereinafter referred to as "the Act") seeking a warrant to arrest the petitioner and bring him, as soon as practicable, before the court. On the same date the sheriff at Edinburgh granted a warrant as craved (7/24 of process). In response to an extradition request from the Republic of Estonia for the return of the petitioner, the respondents by order dated 26 March 2001 issued an authority to the Sheriff Principal of Lothian and Borders to proceed in pursuance of that request (7/25 of process). By interlocutor dated 29 March 2001 (7/26 of process) the sheriff at Edinburgh made an order in terms of section 9(8) of the Act committing the petitioner to the prison of Saughton, Edinburgh, to await the decision of the respondents as to his return. In terms of section 11 of the Act the court informed the petitioner of his right to make an application for review of the order of committal to the High Court of Justiciary. The petitioner did not challenge the order of the sheriff. On 18 April 2001 in accordance with section 13(1) of the Act the respondents gave the petitioner notice (7/27 of process) that they were contemplating making an order under section 12(1) of the Act for his return to Estonia. The petitioner was advised of his right to make representations to the respondents at any time prior to 2 May 2001 as to why he should not be returned to Estonia. On 31 May 2001, solicitors acting on behalf of the petitioner submitted representations to the respondents as to why the petitioner should not be returned to Estonia (6/1 of process). On 12 June 2001 the respondents signed an order for the petitioner's return. The reasons for the respondents' decision are contained in their letter dated 14 June 2001 addressed to the petitioner's then solicitors (6/3 and 7/1 of process). Following the decision of the respondents to order the return of the petitioner to Estonia, the petitioner's mental health deteriorated when he was in Saughton Prison. On or about 9 August 2001 he was transferred to the State Hospital because the alternative facility at the Orchard Clinic at the Royal Edinburgh Hospital did not offer adequate security to house the petitioner. In view of the changed circumstances of the petitioner the respondents reconsidered their decision dated 12 June 2001 but by letter dated 26 June 2002 (7/21 of process) the respondents intimated to the petitioner's solicitors that they had decided to uphold their decision of 12 June 2001 to order the return of the petitioner to Estonia. The petitioner remained in the State Hospital until on or about 23 November 2003 when he was transferred back to prison. Thereafter, further representations were made on behalf of the petitioner by his solicitors to the respondents but by letter dated 17 February 2004 (7/39 of process) the respondents adhered to their earlier decision that it was not unjust or oppressive to order the petitioner's return and that the petitioner should be returned to Estonia.
Remedies sought
[2]It was common ground between counsel for the petitioner and counsel for the respondents that procedurally it was appropriate for the petitioner to seek reduction of the original decision of the respondents dated 12 June 2001 and the re-affirmation of that decision by the later decisions of the respondents dated 26 June 2002 and 17 February 2004. In the course of the hearing before me the pleadings were amended to reflect that position. Accordingly, the petitioner seeks reduction of the decisions of the respondents dated 12 June 2001, 26 June 2002 and 17 February 2004 that the petitioner should be returned to Estonia.
Issues for Determination
[3]Although the petitioner criticised the decisions of the respondents on a variety of grounds, by interlocutor dated 30 May 2003 Lord Sutherland rejected the petitioner's criticisms in part. The remaining issues for my determination were (a) whether the return of the petitioner to Estonia would be a violation of Article 3 of the European Convention on Human Rights (hereinafter referred to as the "Convention"); (b) whether the respondents' decision to return the petitioner to Estonia was a disproportionate interference with his rights under Article 8 of the Convention to respect for his private and family life and (c) whether the decision of the respondents to return the petitioner to Estonia was one which no reasonable minister could have reached.
Article 3
[4]Article 3 of the Convention provides:-
"No-one shall be subjected to torture or to inhuman or degrading treatment or punishment."
It was submitted on behalf of the petitioner that his extradition to Estonia would constitute inhuman or degrading treatment having regard to the real risk of a seriously adverse effect on his health and well-being as a result of the extradition, the dislocation to his family and private life and the fact that he could be prosecuted in Scotland. These three elements of the petitioner's complaint were relied upon by the petitioner in each of the three separate challenges to the respondent's decision. In relation to the health issue the petitioner maintained that his removal from Scotland itself would result in a breach of his Article 3 rights. There was a real risk of violation of those rights because there were inadequate medical treatment facilities available for him in Estonia. It was submitted that having regard to the absolute nature of the terms of Article 3 the authorities cited in submissions disclosed that a rigorous assessment of the information produced to the court was appropriate where it was alleged that there was a real risk of ill treatment. Moreover, counsel for the petitioner maintained that in certain circumstances a lack of appropriate medical treatment may amount to a breach of Article 3. The court had a duty to scrutinise the available material to determine whether there was a real risk that the petitioner would be subjected to inhuman or degrading treatment if he were returned to Estonia in circumstances where the necessary medical treatment was not available to him.
[5]Counsel for the petitioner further submitted that deportation was unnecessary because the petitioner could be prosecuted in Scotland. A prosecution in Scotland would remove the risk of a fugitive criminal going unpunished, while at the same time ensuring that the disruption to family life and the risk of inhuman and degrading treatment associated with deportation to Estonia would be avoided.
[6]In response counsel for the respondents submitted that the respondents were correct in concluding that the return of the petitioner to Estonia would not give rise to a breach of his Article 3 rights. He submitted that it was clear from the reported decisions relied upon by counsel for the petitioner that Article 3 provides protection against only the most serious ill treatment. It was not disputed that the lack of appropriate medical care could amount in certain circumstances to a breach of Article 3, but it was important that the court did not judge the medical care by the standards of care available in the United Kingdom. The issue was not whether the medical care was as good as that available in the United Kingdom but whether it was adequate or whether it was of such a poor level and nature as to be categorised as giving rise to serious ill treatment. In the present case there was evidence before the respondents concerning the conditions in which the petitioner would be detained in Estonia and the medical care which would be available for him. Having regard to that information it was submitted that the respondents were correct in reaching the conclusion that there was no real risk of inhuman or degrading treatment should the petitioner be extradited to Estonia. The psychiatric report by Dr Gray dated 13 September 2001 (6/4 of process) disclosed that the reason for the treatment of the petitioner in the State Hospital, as opposed to any other medical facility, was that it was not thought that the alternative facility in the Orchard Clinic in Edinburgh would provide adequate security to house the petitioner. Thus the sole reason for using the State Hospital for the treatment of the petitioner was because of the availability there of secure conditions rather than the medical facilities. It was accepted that the respondents had to take into account the various medical reports from Dr Gray and Dr Kirk (6/4, 6/13 and 7/16 of process) including Dr Kirk's concern of there being a serious risk of self harm in the event of the petitioner being sent to Estonia. However, a letter dated 14 March 2003 (7/14 of process) identified measures which Dr Kirk would wish to see in place to reduce that risk of self harm. It was submitted on behalf of the respondents that the arrangements in Estonia gave effect to the majority of these recommendations. The most up to date material, relevant to the petitioner's mental state, is contained in the letter from Dr Duncan dated 17 October 2003 (7/28 of process) and the letter from Mr Gibbons dated 21 March 2003 (7/29 of process). The respondents had not been advised of any change since then. The respondents had satisfied themselves that medication was available and could continue to be prescribed as necessary for the petitioner in the event of his transfer to Estonia. It appeared to the respondents that, contrary to earlier expectations, the petitioner had adjusted to prison life, although it was acknowledged that there was a risk of a relapse. The respondents had considered what facilities would be available for the petitioner in the event of his transfer to Estonia and they were satisfied that they would be satisfactory and would not result in his being subjected to inhuman or degrading treatment.
Article 8
[7]Article 8 of the Convention is in the following terms:-
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Although it was accepted by counsel for the petitioner that, unlike Article 3, Article 8 is in qualified terms, he submitted that the continuance of the deportation proceedings involved a disproportionate interference with the private and family life of the petitioner. This was particularly so having regard to the dislocation to his family life involved in his serving any sentence of imprisonment abroad, the adverse effect upon his health and well-being that may be anticipated from his extradition and the fact that he could be prosecuted in Scotland. In relation to the question of physical treatment, it was submitted that treatment that fails to meet the level of severity required for Article 3 may nevertheless reach the appropriate level to satisfy a contravention of Article 8. Under reference to the various medical reports it appeared that even when the petitioner was a patient in the State Hospital it was anticipated that he would be fit for trial in Scotland but a distinction was drawn between such a trial and a trial in Estonia. Concern had been expressed about the effect on his mental health of a transfer to Estonia. That concern was related to the fact and the conditions of his transfer to Estonia. From the material available to the respondents there was information of a concern by responsible medical practitioners that extradition in itself was likely to give rise to a recurrence of the adjustment disorder from which the petitioner suffered. It also appeared from the available material that in certain circumstances it was anticipated that there may be treatment of the petitioner in the hospital in Central Prison, notwithstanding the acceptance by counsel for the petitioner that the petitioner's detention in a new purpose built prison at Tartu would be satisfactory. The petitioner's criticism of the adequacy of medical treatment for him in Estonia was focused around the treatment in the Central Prison hospital. In the course of the argument various documents were referred to including a letter dated 30 July 2002 from the petitioner's then solicitors to the Head of the Board of the North Estonia Regional Hospital (6/15 of process), the reply to that letter dated 13 August 2002 (6/16 of process) and a report to the Estonian Government on the visit to Estonia carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (6/20 of process). The various responses of the Estonian government and the assurances given by it to the respondents were contained within 7/17, 7/33 and 7/34 of process. It was submitted that none of these assurances addressed the issue of the regime at the Central Prison hospital being "anti-therapeutic" (paragraph 108 of 6/20 of process) and there was a reasonable apprehension of risk under Article 8, as well as Article 3, of inadequate medical care.
[8]In relation to the disruption to his family, the personal circumstances of the petitioner are set out in statement 9 at page 23 of the Closed Record and were not disputed by the respondents. In particular he would be placed on remand within a prison in Estonia and would serve his sentence there, if convicted. He has been married for 18 years and has an 11 year old son and a 9 year old daughter. During his detention in Scotland he has been visited by his wife daily and his children visit weekly. His immediate family live in Scotland. His parents live near to his home address and visit him regularly in prison. His father has a heart condition and keeps poor health. His father has been advised by his general practitioner not to fly abroad due to the stresses that would place upon him. In the event of the petitioner being extradited to Estonia his family would not be readily able to visit him and he would be deprived of access to them for considerable periods. 6/24 of process is a report on his father's medical condition.
[9]The final issue in relation to Article 8 was the question of the possibility of the petitioner being prosecuted in Scotland. While it was accepted that in terms of domestic law the decision whether to prosecute anyone remained with the Lord Advocate and that in this case the Lord Advocate had not instituted proceedings against the petitioner, it was submitted that was not a sufficient answer to the issue of prosecution in Scotland. The Lord Advocate had not renounced his right to prosecute the petitioner. Until that occurred, there remained the possibility of a prosecution in Scotland. The factual background of the present case is set out in 7/22 of process. From the narrative it would appear that the courts in Scotland would have jurisdiction as well as the Estonian courts. Moreover, the practicalities favoured a prosecution in Scotland because the witness Hain was now living in England, having served his sentence in Estonia. The witnesses who sold the vehicle and the spare petrol tank to Hain are resident in the United Kingdom. The former co-accused Petrenko could provide his evidence by video link if he was unwilling to travel to Scotland. There is no practical reason for the petitioner not being tried in Scotland. In relation to the question of corroboration, if corroboration is not required in Estonia, and if there is no corroboration of Hain's evidence, counsel for the petitioner questioned whether it was appropriate to extradite the petitioner without the protection afforded by the requirement of corroboration in domestic law. The reasons for not prosecuting in Scotland have not been given and can only be the subject of speculation. If one assumes that there is corroboration, the petitioner could and should be prosecuted in Scotland thereby avoiding any interference with his Article 8 rights. If there is no such corroboration, it was submitted that it was illegitimate to extradite the petitioner in what might be described as a "forum shopping exercise". The tests of necessity and proportionality were not met in the present case.
[10]In response counsel for the respondents submitted that it was clear that Article 8 did not confer upon the petitioner an unqualified right. Article 8(2) provided a derogation from Article 8(1). In considering a possible breach of Article 8, while undertaking the necessary balancing exercise, considerable deference must be given to ministers because it was in their lawful competence to assess what was necessary in a democratic society to pursue the desirable aims of the prevention of crime. It was obvious that in any extradition case there may be an interference with the right to respect for private and family life but in such cases a legitimate aim was being pursued in furtherance of the maintenance of law and order. It was submitted that it would be very rare in an extradition case for the balance to be struck in favour of non-interference with the rights conferred by Article 8(1). Extradition cases differed from deportation cases because in extradition case there was the additional factor of bilateral treaty obligations. In extradition cases the countervailing factors against the exercise of the Article 8 right were even stronger than in deportation cases. The submissions on behalf of the petitioner assumed that the objective was to have the petitioner brought to trial somewhere. That approach was fallacious. The objective of extradition proceedings was to enable countries to honour bilateral obligations by returning fugitives from justice to the state which wished to prosecute them. The principles of extradition are well established. It is not sufficient to assert that, before extradition should be allowed, it is necessary to speculate whether circumstances exist which might justify prosecution in the country from whom extradition is being sought.
Irrationality
[11]The final submission was to the effect that even if the arguments based upon Article 3 and Article 8 were not met, the circumstances of this case disclosed that the respondents had reached an irrational decision. No separate argument was advanced in support of this submission. I was simply invited to reach such a conclusion on the basis of a consideration of the material which was available to the respondents.
[12]Counsel for the respondents replied that the submissions based upon the alleged irrationality of the respondents was a fail-safe argument. No separate submissions were made in support of it. It was submitted that the respondents were entitled to reach the decision which they did.
[13]In the course of submissions, I was referred to the following authorities: D v The United Kingdom (1997) 24 E.H.R.R. 423; Chahal v United Kingdom (1996) 23 E.H.R.R. 413; The Republic of Ireland v United Kingdom (1978) 2 E.H.R.R. 25; Keenan v United Kingdom (2001) 33 E.H.R.R. 38; Kudla v Poland (2002) 35 E.H.R.R. 11; McGlinchey v United Kingdom (2003) 27E H.R.R. 44; Yankov v Bulgaria (E.C.H.R. 11 December 2003); Soering v United Kingdom (1989) 11 E.H.R.R. 439; Raninen v Finland (1998) 26 E.H.R.R. 563; Hatton v United Kingdom (E.C.H.R. 8 July 2003); R.M.D. v Switzerland (1999) 28 E.H.R.R. 224; Wakefield v United Kingdom; R (Pretty) v D.P.P. (2002) 1AC 800; Bensaid v United Kingdom (2001) 33 E.H.R.R.. 10; Aerts v Belgium (1998) 29 E.H.R.R. 50; Kalashnikov v Russia (2003) 36 E.H.R.R. 34; R v Secretary of State for the Home Department ex parte Turgut (2001) 1 All ER 719 Razeghi, Re (2002) NIQB 66; R v Secretary of State for the Home Department ex parte Warren (2003) EWHC 1177; R (Ullah) v Special Adjudicator (2003) 1 WLR 770 ; R(Bloggs 61) v The Secretary of State for the Home Department (2003) 1 WLR 2724; R (Daly) v Secretary of State for the Home Department (2001) 2 AC 532; Green Paper on Extradition (1985) Cmnd. 9421; White Paper: Criminal Justice plans for legislation (1986) Cmnd. 9658
Discussion
[14]It is clear from the authorities cited, and it was not disputed by counsel, that in considering alleged infringements of the Convention, particularly alleged infringements of Article 3 rights, the court requires to subject the decision of ministers to careful scrutiny. Having said that it is also clear that the court is exercising a supervisory jurisdiction and not usurping the role of the primary decision maker. In that regard I would respectfully adopt the observations of Simon Brown LJ in R v Secretary of State for the Home Department ex parte Turgut at page 724 where he stated inter alia:
"... it is clear that the court's role, even in a case involving fundamental human rights, remains essentially supervisory. It must, of course, as Lord Bridge observed in Bugdaycay v Secretary of State for the Home Dept. (1987) 1 All ER 940, (1987) AC 514, review the impugned decision (certainly in an art 3 case) with the 'most anxious scrutiny'. But it must not adopt the role of primary decision-maker".
It was also accepted that in the present case I could take into account all of the productions as well as the pleadings in assessing the decisions challenged by the petitioner. In undertaking this exercise in relation to the petitioner's Article 3 rights, I considered that the test to be applied was whether it was established that on any reasonable view of the facts there was a real risk of inhuman or degrading treatment if the petitioner were extradited to Estonia. As was observed by Simon Brown LJ in Turgut at page 729:-
"... the domestic court's obligation on an irrationality challenge in an art 3 case is to subject the Secretary of State's decision to rigorous examination, and this it does by considering the underlying factual material for itself to see whether or not it compels a different conclusion to that arrived at by the Secretary of State. Only if it does will the challenge succeed.
All that said, however, this is not an area in which the court will pay any especial deference to the Secretary of State's conclusion on the facts."
[15]In order to determine whether extradition of the petitioner to Estonia results in an infringement of his Article 3 or Article 8 rights, a number of factual issues require to be resolved. These include the nature and extent of any medical condition suffered by the petitioner, whether there would be a likely adverse effect on the petitioner's health if he were extradited, and if so, the nature and extent of that effect, the conditions in which the petitioner would be detained in Estonia, including available medical facilities, and the likely adverse effect on the petitioner's family life as a result of his detention in Estonia. In accordance with the approach outlined in Turgut I am not endeavouring to substitute my own decision on these matters for that of the respondents, but rather to consider the material which was available to me and to subject the respondents' conclusions on each issue to careful scrutiny. It appears that all of the material submitted to me was available to the respondents when they considered these issues but even if that were not so it is clear from paragraph 107 of the decision of the Commission and paragraph 97 of the Court's decision in Chahal v United Kingdom that I would be entitled to consider all relevant material particularly in the context of an alleged infringement of Article 3 rights. Moreover, in assessing the risk of a contravention of Article 3 rights in cases such as this, where the petitioner is in the United Kingdom at the date of the court's determination of the case, the relevant date for such assessment is the date of determination.
(a) The nature and extent of the petitioner's medical condition
There were a number of sources of information available in relation to this matter. These included:
(i) Report by Dr Crichton dated 26 July 2001 (6/9 of process);
(ii) Report by Dr Chiswick dated 9 August 2001 (6/10 of process);
(iii) Report by Dr Gray dated 13 September 2001 (6/4 and 6/12 of process);
(iv) Report by Dr Black dated 20 September 2001 (6/11 of process);
(v) Report by Dr Gray dated 24 October 2001 (6/13 of process);
(vi) Report by Dr Kirk dated 13 February 2002 (7/16 of process);
(vii) Letter from Dr Kirk dated 14 March 2002 (7/14 of process);
(viii) Letter from Dr Duncan dated 17 October 2002 (7/28 of process; and
(ix) Letter from Mr Gibbons dated 21 March 2003 (7/29 of process).
These documents, particularly the medical reports, disclose that in July 2001 the petitioner was exhibiting some symptoms of a depressive illness and was given medication. At that time consideration was to be given to his transfer from prison to Orchard Clinic, Edinburgh if his condition did not improve. In August of that year he was diagnosed as suffering from a severe adjustment disorder and it was recommended that he be transferred to Orchard Clinic. For security reasons only, he required to be detained in the State Hospital and was transferred there on 9 August 2001. In September he was considered to be sane and fit plead. He was diagnosed as suffering from an adjustment disorder as defined in ICD-10 F43.22. It was considered unsafe to transfer him to another country. His disorder had arisen from his remand in prison and it was likely that his return to prison at home or abroad would result in a deterioration in his condition. At that time it was not possible to estimate the duration of his condition. In October he still suffered from the adjustment disorder but it was considered that his condition was likely to improve over time although it was anticipated that would take several months. However, even if his condition improved to the extent that he could be managed in a prison environment, the petitioner's perception that extradition would lead to his death would be likely to result in a deterioration in his condition if extradition were ordered. In February 2002 the petitioner was still detained in the State Hospital. He was considered to be sane and fit to plead. The opinion was expressed that his distress would not be resolved until the proceedings involving him had been concluded. His state was "one of avoidance". Dr Kirk expressed the view that there was no practicable way of sending the petitioner to Estonia without real risk of self-harm. In March 2002, Dr Kirk made recommendations to the respondents, directed to the reduction of the petitioner's risk of self harm in the event of his transfer to Estonia. By October 2002 the petitioner was no longer suffering from a mental disorder justifying his detention for treatment in terms of section 17 of the Mental Health (Scotland) Act 1984 and was in receipt of medication which could be administered by his general practitioner or in a prison setting. Accordingly, he was transferred back to prison and by March 2003 he had settled well. There were no thoughts of self-harm or suicide and there had been no problems with his mental health since December 2002. Thus, insofar as the petitioner had suffered from a mental disorder, his symptoms were typical of a severe adjustment disorder as defined in ICD-10F43.22 but his condition was manageable within a prison setting where he could receive the necessary medication and supervision. His mental health problems ceased in December 2002 and he was now settled in prison.
The likely nature and extent of any effect on the petitioner's medical condition if he is extradited to Estonia.
It appeared from the reports that a change in the petitioner's environment might effect a deterioration in his condition. It is clear that his reluctance to be extradited results in his suffering distress. His mood appears to fluctuate depending upon his optimism or pessimism about the prospect of his extradition. I note from the report of Dr Kirk dated 13 February 2002 (7/16 of process) that the petitioner's distress is related to the prospect of his being extradited to Estonia and that there will be no resolution of that distress until the matter of extradition is clarified and the prosecution has been concluded. However, Dr Kirk also observed that
"Such states are not infrequently found in prison settings when individuals, confronted with the consequences of their actions or threats to continuation of their normal and expected lifestyle and without their usual social supports, disintegrate into states of abject terror."
Thus the medical reports indicated that the petitioner not only had a history of suffering from a severe adjustment disorder, which was manageable within a prison environment, but it was likely that there would be an initial relapse, occasioned by the associated distress in the event of his being extradited to Estonia. In that situation it is necessary to consider the facilities available in Estonia for the detention and medical treatment of the petitioner.
Prison conditions and medical facilities in Estonia
[16]There were a variety of sources of information about this issue. I have reviewed the documents pertaining to this matter which were lodged in process. These included the following:
(i) Report to the Estonian Government on the visit to Estonia by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment from 13 to 23 July 1997 (6/20 of process).
(ii) Responses of the Estonian Government to (i) (7/34 of process).
(iii) Report to the Estonian Government on the visit to Estonia carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment from 15 to 21 December 1999 (6/21 of process).
(iv) Responses of the Estonian Government to (iii) (7/38 of process).
(v) Letter from British Consul dated 27 March 2001 (7/2 of process).
(vi) Letter from Deputy Police Chief, Estonia dated 28 March 2001 (7/3 of process).
(vii) Letter from British Consul dated 27 April 2001 (7/4 of process).
(viii) Letter from the Minister of Justice in Estonia dated 12 June 2001 (7/6 of process).
(ix) Letter from Dr Ahti Kallikorm to T. G. Brannigan & Co., Solicitors, dated 17 July 2002 (6/14 of process).
(x) Reply dated 30 July 2002 to (ix) (6/15 of process).
(xi) Reply from Dr Ahti Kallikorm dated 13 August 2002 to (x) (6/16 of process).
(xii) Letter from the Secretary General of the Ministry of Justice in Estonia to the Deputy First Minister dated 29 April 2002 (7/17 of process).
(xiii) Letter dated 14 May 2002 from the Private Secretary to the Deputy First Minister to the Secretary General of the Ministry of Justice in Estonia (7/18 of process).
(xiv) Letter dated June 2002 from the Secretary General of the Ministry of Justice in Estonia to the Deputy First Minister (7/19 of process).
(xv) Estonian Imprisonment Act 2000 (7/30 of process).
(xvi) Letter from Dr Crichton dated 8 April 2003 (6/17 of process).
(xvii) Email message dated 8 April 2003 from Imbi Markus, Estonian Ministry of Justice to Hugh Dignon, Criminal Procedure Division of Scottish Executive (7/31 of process).
(xviii) Letter from Imbi Markus, Estonian Ministry of Justice, to Fergus McNeil, Criminal Procedure Division of Scottish Executive dated 25 August 2003 (English translation) (7/33 of process).
(xix) Note of visit to Tartu Prison by Scottish Executive officials on 8 January 2004 (7/37 of process).
(xx) Letter dated 21 January 2004 from the Estonian Minister of Justice to the Minister of Justice, Scottish Executive (7/35 of process).
(xxi) Email message dated 6 February 2004 from Elo Liebert, Estonian Ministry of Justice to Hugh Dignon, Scottish Executive Justice Department (7/36 of process).
Although some of these documents relate to the co-accused Leslie Brown, whose extradition has also been sought by Estonia, they also contain information of a general nature relating to the conditions for the detention and medical care of prisoners in Estonia. In giving careful scrutiny to the conditions in which the petitioner will be detained in the event of his extradition, I consider that while the earlier documents are of some significance the most relevant documents are those which indicate the latest arrangements for the reception of the petitioner in Estonia. It is clear from the email dated 6 February 2004 (7/36 of process), that special arrangements would be made for the petitioner. In particular, contrary to normal practice, he would not be detained in the Tallinn Police Arrest House for a period of between 10 and 15 days to enable initial investigations to be completed. It appears from the letter dated 21 January 2004 (7/35 of process) that the original intention was to detain the petitioner there prior to his transfer to Tartu Prison to await trial. Even if that had been the outcome, I note that the Arrest House has 24-hour medical facilities, including a doctor. However, the latest intention is to transport the petitioner immediately upon his arrival in Estonia to Tartu Prison in view of the risk of self-harm.
[17]The conditions at Tartu Prison are described in the note of the visit to that prison on 8 January 2004 by officials from the Scottish Executive (7/37 of process). In fairness to counsel for the petitioner, no criticism was made of this establishment. That is not surprising in view of the fact that Tartu is a newly built prison, which had been open for just over a year prior to the visit by the respondents' officials. Most of the prisoners were awaiting trial. On any view, this prison is of the highest standard with each cell having its own toilet and shower. It has various facilities for recreation including a fully fitted gym, gymnasium and outside basketball/football pitch and a sauna. As far as the medical facilities are concerned it has a specially designed medical block. A psychiatrist works in the prison for 3 days a week. If a prisoner needs care which cannot be provided at this facility he can receive treatment in Tartu Hospital, a teaching hospital associated with the University of Tartu. If longer-term care is needed the prisoner will be transferred to the hospital in Central Prison in Tallinn. In Tartu Prison there are also special observation cells for prisoners who are considered to be at high risk of committing suicide. They are monitored with cameras on a 24-hour basis. It is also clear from the email message dated 8 April 2003 (7/31 of process) and the English translation of the letter dated 25 August 2003 (7/33 of process) that Tartu Prison has a separate department for psychiatric assessment where patients are detained in single cells and observed by television cameras. Psychiatric nursing care is available 24 hours per day. It appears to me that, in the event of the petitioner suffering a relapse, the conditions for his treatment in Tartu Prison are at least as good as those available in Scottish prisons. In the event of the severity of his condition being such that he could not be treated in Tartu Prison or in Tartu Hospital because longer-term care was required, he would be transferred to the hospital in Central Prison in Tallinn. I also note that in the letter dated 4 December 2001 (7/11 of process) it is stated that prison doctors have considerable experience with treating prisoners suffering from F43.22. 7/19 of process indicates that they have experience of dealing with prisoners with suicidal tendencies and 7/17 of process indicates that the Estonian authorities will undertake to continue any prescribed treatment of the petitioner and to make appropriate arrangements for his care.
[18]The criticisms on behalf of the petitioner about the available medical facilities centred around the criticisms contained in the report to the Estonian Government on the visit to Estonia by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (6/20 of process). Paragraph 103 and subsequent paragraphs deal with the hospital in the Central Prison, Tallinn. I note that the comments in respect of the prison hospital commence by acknowledging that there was a sufficient number of doctors and nurses. They were adequately trained and appeared committed to providing the best possible care. However, paragraph 108 criticised the facilities for neurology and psychiatry. The hospital provided 28 beds for such services and there was only one full-time specialist doctor. The situation of psychiatric patients was described as "anti-therapeutic". From the response of the Estonian Government (7/34 of process) it appears that by June 1998 there was the equivalent of 11/2 full-time psychiatrists and 2 full-time psychologists at the prison hospital (pages 24 to 25). The concerns identified by counsel for the petitioner had been addressed by the establishing of a commission (pages 30 to 31). Moreover, by the time of the final response of the Estonian Government, the issue of overcrowding had been addressed by an extension of the hospital, as had criticisms relating to patients being locked up in overcrowded cells. In any event, although there were general criticisms about the facilities for psychiatric patients at the hospital in Central Prison, and although these had been addressed to a large extent in the government's response to the criticisms, it seemed clear from the information provided to the respondents that the Estonian Government would make special arrangements for the care of the petitioner in the event of his requiring medical treatment.
[19]A review of all of the material suggests that notwithstanding the criticisms of the hospital in Central Prison it was clear that special arrangements would be made for the petitioner and that there would be an adequate level of care for the petitioner in the event of that being required. In the first instance he would be treated in Tartu Prison. If further treatment was required, he could be admitted to civil institutions in Tartu. In the event of his requiring long-term treatment in the hospital in Central Prison, it appeared to me from a review of all the material that he would receive appropriate treatment. The Estonian Government had been made aware of his medical history and of the requirements of Dr Kirk in her letter dated 14 March 2002 (7/14 of process) and had undertaken that appropriate arrangements would be made for the petitioner's welfare.
The likely adverse effect on the petitioner's family life
[20]It is clear from the opinion of the Commission in Wakefield v United Kingdom that Article 8 requires the state to assist prisoners as far as possible to sustain family ties. In that regard the location of the place of detention is relevant. In my opinion it cannot be disputed that the extradition of any person will have an adverse effect upon his family life. Obviously it will not be possible for his immediate family to visit the petitioner as frequently as would occur if he remained in a Scottish prison. Moreover, it appears from the letter from Dr McCalister dated 3 September 2003 (6/24 of process) that the petitioner's father suffers from ischaemic heart disease and various other ailments. It would seem unlikely that he would be able to visit the petitioner. However, it is clear from the available documents that the petitioner would be entitled to visits from his family and to regular contact with consular officials. The experience of Mr Hain can be relied upon. 7/3 of process disclosed that when he was in prison Mr Hain had a TV set and a radio in his cell. He was always allowed visits from relatives when they arrived from the United Kingdom. He had regular visits from consular officials and received newspapers and magazines in English. 7/4 of process disclosed that the British Consul had received no complaints about Mr Hain's entitlement to mail, visits or phone calls. Moreover, the Estonian Imprisonment Act provides protection in respect of correspondence and telephone calls.
[21]It is against that factual background that I should consider the alleged contravention of the petitioner's Article 3 rights. The Court in Keenan v United Kingdom recognised in paragraph 110 of its opinion that the authorities are obliged to protect the health of persons in custody and that the lack of appropriate medical treatment may amount to treatment contrary to Article 3. In Kudla v Poland, a decision of the Grand Chamber, the applicant maintained that he had not received adequate psychiatric treatment when he was detained in Cracow Remand Centre, where there was no psychiatric ward and no serious effort had been made to treat his chronic depression. At page 222 the Court made the following observations:
"...Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim's behaviour.
However, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim.
.... the Court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment.
Measures depriving a person of his liberty may often involve such an element. Yet it cannot be said that the execution of detention on remand in itself raises an issue under Article 3 of the Convention. Nor can that Article be interpreted as laying down a general obligation to release a detainee on health grounds or to place in him in a civil hospital to enable him to obtain a particular kind of medical treatment.
Nevertheless, under this provision the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measures do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practicable demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance."
In Bensaid v United Kingdom the applicant was a schizophrenic suffering from a psychotic illness, whom the Home Secretary had decided to remove from the United Kingdom and return to Algeria, despite the fact that the medication to manage his symptoms would no longer be available to him free in Algeria and that the nearest hospital was about 75 kilometres from his village and that there was a risk of relapse into hallucinations and psychotic delusions involving self harm and harm to others. Although the court accepted that the suffering associated with such a relapse could in principle fall within the scope of Article 3 the court determined that the circumstances of that case did not amount to a contravention of the applicant's Article 3 rights. I recognise that each case must depend upon its own circumstances but it seems to me that the likely consequences for the applicant in that case were more extreme than the possible consequences for the petitioner in this case. In Bensaid v United Kingdom the court recognised the seriousness of the applicant's medical condition but observed that having regard
"to the high threshold set by Article 3, particularly where the case does not concern the direct responsibility of the Contracting State for the infliction of harm, the court does not find that there is a sufficiently real risk that the applicant's removal in these circumstances would be contrary to the standards of Article 3".
The court in Bensaid contrasted the case of D v United Kingdom. D v United Kingdom was an exceptional case and was recognised as such by the court. The applicant in that case was in advanced stages of AIDS and his limited quality of life was due to the availability of medical treatment in the United Kingdom, which was not available in St Kitts where it was proposed to remove him. Apart from the lack of medical care there the applicant had no accommodation there nor would he be guaranteed a hospital bed. At page 449 the court observed that while
"it cannot be said that the conditions which would confront him in the receiving country are themselves a breach of the standards Article 3, his removal would expose him to a real risk of dying under most distressing circumstances and would thus amount to inhuman treatment."
The court also recognised that normally aliens who have served their prison sentences and are subject to expulsion cannot claim entitlement to remain in order to continue to receive medical, social or other forms of assistance provided by the expelling state but the case of D was very exceptional and there were compelling humanitarian considerations at stake which resulted in the conclusion that the removal of the applicant to St Kitts would be a violation of his Article 3 rights.
[22]While each case must depend upon its own circumstances I consider that certain general principles may be derived from these and other cases to which I was referred. Without endeavouring to suggest an exhaustive list, it appears to me that the following principles may be of relevance in the present case:
1.Ill treatment must attain a minimum level of severity if it is to fall within the scope of Article 3.
2.Authorities have an obligation to protect the health of prisoners.
3.The lack of appropriate medical treatment may amount to a contravention of Article 3.
4. In the case of mentally ill detainees the court should consider their vulnerability.
5.The available medical care in the receiving country must be of such a poor level as to be categorised as giving rise to ill treatment.
[23]When the facts in the present care are considered, it seems to me that if there is any risk of ill treatment of the petitioner due to the lack of appropriate medical facilities within the Estonian penal system, it is negligible. The petitioner's complaint in that regard depends upon the assumption that his condition will deteriorate upon his extradition to Estonia, that the deterioration will be of such severity that the petitioner cannot be treated adequately in the hospital facility in Tartu Prison or in the facilities of the teaching hospital in Tartu and that he will require to be transferred to the hospital in Central Prison, Tallinn. While I accept that the evidence discloses that there is a risk of deterioration associated with any change in his circumstances, including the petitioner's extradition to Estonia, it is clear that his condition is not uncommon among detainees and is a condition with which the Estonian authorities are familiar and are accustomed to treat. As in Bensaid v United Kingdom, it appears to me that the risk that the petitioner will suffer a relapse if he is extradited and that thereafter he would not receive adequate support or care is, at best for the petitioner, speculative. The petitioner in this case has not even approached the minimum level of severity of ill treatment required to establish a breach of Article 3. Accordingly, I have concluded that the complaint under Article 3 has not been established. Before considering the other aspects of the petitioner's case, I have not deemed it necessary, in the context of the Article 3 case, to consider the question of the possibility of a prosecution in Scotland. As I have indicated, I have reached the conclusion that there is no real risk of violation of the petitioner's Article 3 rights because of inadequate medical treatment facilities available for him in Estonia. I wish to reserve my opinion as to the relevance of the argument concerning the possibility of a prosecution in Scotland in the context of an Article 3 case. However, if I had felt it necessary to consider this matter, assuming it to be relevant, I would have rejected the argument for reasons similar to those expressed later in the context of the Article 8 case.
[24]As far the alleged breach of Article 8 of the Convention is concerned, as was recognised by both counsel in their submissions, different considerations apply. Whereas Article 3 is absolute in its terms, Article 8 permits a derogation from the rights conferred by Article 8(1). It is also clear from the authorities cited by counsel that, in considering a possible breach of the petitioner's Article 8 rights, it is appropriate for the court to take into the account the same evidence relating to the availability of medical treatment for the petitioner in Estonia as was considered in the Article 3 case. The mere fact that the evidence fails to substantiate the allegation of a breach of the petitioner's Article 3 rights does not mean that it cannot justify a conclusion that his Article 8 rights would be infringed by his extradition. As was observed in Raninen v Finland at paragraph 54:
"The notion of 'private life' within the meaning of Article 8(1) of the Convention is a broad one and not susceptible to exhaustive definition. It covers both the physical and moral integrity of a person. The protection afforded by Article 8 to an individual's physical integrity may be wider than that contemplated by Article 3 depending on the facts of the particular case."
[25]It is also clear that in considering an alleged contravention of Article 8 the derogation in Article 8(2) requires the court to balance the interests of the petitioner against the interests of the state. The test of proportionality applies. In R (Daly) v Secretary of State for the Home Department Lord Steyn quoted with approval the three stage test of proportionality expressed by Lord Clyde in De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing (1999) 1 A.C. 69. Adopting that approach the court should ask itself:
"whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."
In the present case it was not disputed on behalf of the petitioner that the interference with the petitioner's Article 8 rights was in furtherance of a legitimate objective, although there was a dispute as to the nature of that objective. Nor was it disputed on behalf of the petitioner that the measures adopted by the respondents were designed to meet the objective and were rationally connected with it. However, there was a dispute between the parties as to whether the means used by the respondents were more than was necessary to accomplish the objective.
[26]It was not disputed that the respondents had interfered with the petitioner's right to respect for his private and family life, his home and his correspondence by determining that he should be extradited. Having reviewed the evidence in this case I consider that the extent of the interference is limited to the additional restriction of contact between the petitioner and his immediate family occasioned by his incarceration in Estonia, as opposed to his detention in Scotland. I am not satisfied that in the event of his suffering a relapse his medical treatment in Estonia will be inadequate or even inferior to the treatment available in the Scottish prison environment.
[27]Despite the restricted nature of the limitation counsel for the petitioner took issue with the proposition that the extradition was no more than was necessary to accomplish a legitimate objective. He maintained that the petitioner could be prosecuted in Scotland and that accordingly it was unnecessary to extradite the petitioner to Estonia. Counsel for the petitioner acknowledged that the responsibility for prosecution in Scotland rests with the Lord Advocate and that the Lord Advocate has not decided to prosecute the petitioner. Counsel submitted that until the Lord Advocate renounced his right to prosecute the petitioner, the petitioner could be prosecuted in Scotland. The Lord Advocate had not decided to renounce his right of prosecution. He has remained silent on the matter. In my opinion there may be many reasons for his silence. It is not appropriate to speculate on these reasons but any decision of the Lord Advocate will be informed by a variety of considerations. The most obvious of these is the question of jurisdiction and sufficiency of evidence. I do not accept the proposition advanced in submissions on behalf of the petitioner that it would be inappropriate, far less illegitimate, to extradite the petitioner to Estonia if the laws of that country do not have the same evidential requirement of corroboration as Scotland. It seems to me that if a crime has been committed in Estonia it is appropriate that the alleged perpetrator should be tried in that jurisdiction according to the laws of evidence there, subject always to the right to a fair trial enshrined in Article 6 of the Convention. Furthermore, whether or not there is a sufficiency of evidence to enable proceedings to be taken against the petitioner in Scotland, it may be appropriate to extradite the petitioner to Estonia to respect international treaty obligations and in furtherance of international co-operation in combating serious crime. In my opinion the need for the respondents to respect international treaty obligations is a material consideration and may even be an objective in its own right. In that regard I would respectfully refer to the observations of Moses J. and Hale J. in R v Secretary of State for the Home Department, ex parte Warren. At paragraph 23 Moses J observed:
"This court must consider whether the Secretary of State has struck the balance fairly between the interests of the claimant's rights enshrined in Article 8 and the needs of international co-operation in seeing that those accused of a serious crime are brought to justice. This court is not entitled to substitute for that of the Secretary of State its own decision, but must rather decide whether his decision fell within the margin of discretion afforded to the Secretary of State as primary decision-maker."
At paragraph 40 Hale J observed:-
"The object of extradition is to return a person who is properly accused or has been convicted of an extradition crime in a foreign country to face trial or to serve his sentence there .... The extradition process is only available for return to friendly foreign states with whom this country has entered into either a multi or a bilateral treaty obligation involving mutually agreed and reciprocal commitments. Mr Perry ... accepts that there is a strong public interest in our respecting such treaty obligations. Such international co-operation is all the more important in modern times, when cross-border problems are becoming ever more common, and the need to provide international solutions for them is ever clear."
I respectfully agree with these observations.
[28]Legitimate immigration control usually means that derogation from Article 8 rights is not disproportionate and a wide margin of appreciation is afforded to contracting states to determine what steps should be taken to ensure compliance with the Convention in such cases. It appears to me that the same principles should apply in extradition cases. A wide margin of appreciation should be afforded to a state deciding to extradite one of its citizens, having regard to the desirability of states adhering to bilateral treaties and giving effect to bona fida requests for extradition of their citizens to enable them to stand trial for serious crimes. Extradition does not and should not depend upon the ability or otherwise of the requested state to undertake its own investigations with a view to prosecuting the case within its own jurisdiction. Such an approach would involve unnecessary duplication of effort, would result in additional delays in the prosecution of suspected criminals and would have an adverse effect upon international relations and international co-operation in the prosecution of serious crime. In most, if not all, extradition cases the requested state would depend upon co-operation from the requesting state if the requested state were to embark upon its own investigation and ultimate prosecution of the case. That would certainly be the situation in the present case if the Lord Advocate adopted the course of action advocated by counsel for the respondents. On the basis of the factual information provided by the Estonian authorities about the circumstances of the alleged offence it is clear that any prosecution in this country would depend upon the co-operation of the Estonian authorities in making available witnesses from Estonia. The co-operation of the Estonian Government in this regard would be based upon an assumption that Estonia would be prepared to obtemper its international obligations towards the United Kingdom at a time when the United Kingdom was unwilling to fulfil its international obligations in relation to extradition. Such a result fails to recognise the reciprocal nature of international obligations and I suspect that the only beneficiaries of the approach to extradition underlying the submissions on behalf of the petitioner would be international criminals. Such an approach would frustrate the desirable objective of bringing to justice those accused of serious crime with an international dimension.
[29]In the present case, I am satisfied that there is no contravention of Article 8 because the limited interference with the petitioner's right to respect for his private and family life is justified and is proportional. I would also add that it is clear that the respondents have taken steps in discussion with the Estonian Government to ensure that the interference with the petitioner's rights is restricted by securing assurances concerning family visits and contact by telephone and correspondence during his incarceration in Estonia.
[30]The final issue concerns the alleged irrationality of the respondents' decision. Although Lord Steyn recognised in Daly that the approach of proportionality applicable in judicial reviews where Convention rights are at stake may result in a different outcome from the traditional approach in Associated Provincial Picture Houses Ltd v Wednesbury Corpn (1948) 1 K.B. 223, he recognised that most cases would be decided in the same way whichever approach is adopted. I do not consider that this is one of the exceptional cases. Having regard to the extreme lengths to which the respondents and their officials went to satisfy themselves about the appropriateness of the facilities available for the detention and care of the petitioner in Estonia and having regard to the desirability of complying with international obligations and bringing to justice those accused of serious crime, it cannot be said that the decision in this case was irrational.
Decision
[31]Of consent I shall allow the respondents' ninth plea-in-law to be amended by adding after "2002" the words "and 17 February 2004" and for the reasons outlined in the discussion I shall repel the pleas-in-law for the petitioner, sustain the fifth and tenth pleas-in-law and the ninth plea-in-law as amended for the respondents and shall accordingly refuse the petition.