Warren, R (on the application of) v Secretary of State for the Home Department & Anor

In extradition proceedings, the Secretary of State may leave the requesting state’s court to determine whether the accused is fit to stand trial, provided that the requesting state offers fair procedures and adequate care. The Secretary of State must decide whether surrender would be wrong, unjust or oppressive and must strike a fair balance under Article 8 between the accused’s private and family life and the public interest in international cooperation and prosecution of serious crime. Where the medical evidence is conflicting or raises a genuine issue about fitness, the Secretary of State may take account of treatment prospects, safeguards, assurances as to expedition and the possibility of deterioration. The reviewing court must not substitute its own view if the decision falls within the Secretary of State’s margin of discretion.

The claimant sought judicial review of the Secretary of State’s decision to order his surrender to the United States under the Extradition Act 1989. He faced serious criminal charges in New York and relied on medical evidence that he was unfit to plead, would deteriorate if surrendered and might be unable to stand trial. The United States provided evidence concerning assessment, treatment, family contact and the likely duration of any fitness proceedings.

The central issues were whether there was a genuine issue for the New York courts to determine concerning the claimant’s fitness, and whether surrender would nevertheless be wrong, unjust or oppressive, particularly having regard to Article 8.

1. Application refused. The Secretary of State was entitled to order surrender. The claimant’s bail continued on the existing terms.
2. Fitness to stand trial is ordinarily a matter for the courts of the requesting state, not for the executive or medical experts, provided that the requesting state has fair procedures for determining the issue. The Secretary of State was not required to decide the claimant’s fitness himself.
3. The Secretary of State was entitled to find that the evidence disclosed genuine issues concerning the claimant’s fitness, prognosis and treatment. Although the domestic psychiatrists considered him unfit and regarded Mr Bodek’s views as weak, Mr Bodek’s evidence could not be ignored altogether. The Secretary of State could consider the possibility of treatment in New York, the absence of intensive inpatient treatment in the United Kingdom, the claimant’s stated refusal to face trial and the possibility that his condition might improve after treatment.
4. The New York arrangements were material. They included psychiatric assessment, publicly funded treatment, access to a defence-appointed psychiatrist, family contact and an undertaking that fitness issues would be addressed promptly and that the claimant would probably be returned within months if he remained unfit.
5. Under paragraph 8(2) of Schedule 1 to the Extradition Act 1989, the Secretary of State had to consider whether surrender would be wrong, unjust or oppressive. Article 8 was engaged. The relevant balance was between the serious effect on the claimant and his family and the public interest in international cooperation and bringing serious accusations to trial.
6. Once the Secretary of State was entitled to identify genuine fitness issues and a fair, adequately safeguarded and limited process in New York, he was entitled to conclude that the risk of deterioration did not outweigh the need for the claimant to face the serious charges. The decision fell within his margin of discretion.

Not an appeal. The Divisional Court determined the judicial review claim at first instance.