The Minister for Justice and Equality v Farah Damji

• Jurisdiction: Ireland
• Judge: Mr. Justice Paul Burns
• Judgment Date: 31 January 2022
• Neutral Citation: [2022] IEHC 72
• Docket Number: [2020 No. 196 EXT.]
• Year: 2022
• Court: High Court

Between

The Minister for Justice and Equality

Applicant

and

Farah Damji

Respondent

[2022] IEHC 72

[2020 No. 196 EXT.]

THE HIGH COURT

JUDGMENT of Mr. Justice Paul Burns delivered on the 31st day of January, 2022

1 By this application the applicant seeks an Order for the surrender of the respondent to the United Kingdom of Great Britain and Northern Ireland (“the UK”) pursuant to a European arrest warrant dated 29th July, 2020 (“the EAW”) issued by Judge Gledhill, sitting at Southwark Crown Court, as the issuing judicial authority. The EAW seeks the surrender of the respondent for the execution of a number of custodial sentences imposed upon her in the UK in respect of breach of a restraining order and stalking-type offences.

Preliminary Matters

2 The EAW was endorsed on 10th August, 2020 and the respondent was arrested and brought before this Court on 17th August, 2020.

3 I am satisfied that the person before the Court, the respondent, is the person in respect of whom the EAW was issued. This was not put in issue by the respondent.

4 I am satisfied that the minimum gravity requirements of the European Arrest Warrant Act, 2003, as amended (“the Act of 2003”), have been met. Each sentence in respect of which surrender is sought is in excess of 4 months' imprisonment and these are set out in the EAW as:-

• (i) order dated 30th March, 2020, imposing a sentence of 9 months' imprisonment on the first count of breach of a restraining order and a consecutive sentence of 18 months' imprisonment on the second count of breach of a restraining order, making a total of 27 months' imprisonment, all of which remains to be served; and

• (ii) order dated 19th August, 2016, imposing a total sentence of 5 years' imprisonment (consisting of 3 consecutive sentences of 18 months', 18 months' and s years' imprisonment, respectively) of which 8 months remains to be served on foot of a recall on licence due to breach of licence conditions.

5 I am satisfied that none of the matters referred to in ss. 21A, 23 and 24 of the Act of 2003 arise and that the surrender of the respondent is not prohibited for the reasons set forth therein. As regards s. 22 of the Act of 2003, this is dealt with separately herein.

6 At part E of the EAW, reference is made to case summaries which are attached to the EAW in respect of the offences in question. The first attachment carries a reference “ MG5 ( SP611) POLICE REPORT URN 01 WH 216 14” and sets out the circumstances in respect of the 3 offences of harassment contrary to s. 4A of the UK Protection from Harassment Act, 1997, to which the sentence of 19th August, 2016 relates. The second attachment carries a reference “ MG5 Form — MET Total Policing URN O1CW/03185/18” and sets out the circumstances in respect of the 2 offences of harassment – breach of restraining order, contrary to s. 5 of the UK Protection from Harassment Act, 1997, to which the sentence of 20th February, 2020 relates.

7 As regards the initial sentence of 19th August, 2016, the respondent was released on licence and, upon the licence being revoked, she was required to serve the balance of that sentence.

Additional Documentation

8 The respondent swore an affidavit dated 19th November, 2020, in which she avers that she suffers from asthma and had developed double pneumonia in 2020. She avers that she contracted Covid-19 in April/May 2020 and feared if she contracted it again she might die. As regards her mental health, she avers that Dr. Graham Rogers, a psychologist, has diagnosed her as having complex post-traumatic stress disorder, that she had been misdiagnosed in prison in the UK and had not received appropriate treatment in custody. She exhibits a report from Dr. Rogers, dated 31st October, 2019, in which the diagnosis of complex post-traumatic stress disorder is set out. Dr. Rogers indicates that the treatment for this condition is generally cognitive behavioural therapy, but due to the longevity and complexity of her condition, the respondent requires a treatment known as psychodynamic psychotherapy. Having reviewed her medical records, Dr. Rogers indicates that while in custody in the UK, she had been misdiagnosed with a personality disorder, but even then she did not receive the recommended treatment. He opines that the respondent requires treatment 2 to 3 times a week for 3 to 4 months, followed by weekly treatment over the long-term. The estimated cost would be £150 to £375 per week for the first 3 to 6 months.

9 A report from Dr. Seán Ó Domhnaill, consultant psychiatrist, dated 20th October, 2020, was also put before the Court by the respondent. Dr. Ó Domhnaill does not appear to be in complete agreement with Dr. Rogers. It is difficult to discern the precise diagnosis made by Dr. Ó Domhnaill, but it appears to be his opinion that the respondent suffers from autism spectrum disorder/ADHD with high-level anxiety and possibly hyperkinetic disorder. I apologise to Dr. Ó Domhnaill if my brief synopsis fails to do justice to his report, but as he points out in his report, most mental health practitioners would not have the training to diagnose and treat the conditions in which he specialises, he being the only recognised neurodevelopmental specialist on the island of Ireland.

10 By letter dated 23rd November, 2020, the Court furnished the issuing judicial authority with Dr. Ó Domhnaill's report together with various reports on Covid-19 in UK prisons and sought the following additional information:-

• 1. Confirmation that the prison where the respondent would be detained has or has access to adequate medical facilities and practitioners to treat the respondent;

• 2. Confirmation that such prison has adequate facilities and protocols in place to deal with the risks posed by the Covid-19 pandemic as regards persons particularly vulnerable to the virus;

• 3. Whether the respondent was legally represented throughout the trial, up to and including sentence;

• 4. Particulars as regards the offences to which the 2016 sentence relates;

• 5. Particulars as regards the breach of the restraining order in relation to [V.C.] and [B.C.]; and

• 6. Particulars as regards the victim personal statement made by [B.C.].

11 One might have expected that a requesting state or issuing judicial authority would be able to provide the requested information without much difficulty. Unfortunately, the response received by the Court was less than satisfactory. There was no single reply from a single entity but rather a series of piecemeal replies strung out over a prolonged period from different persons.

12 The first reply, described as a “ partial response”, was by way of email dated 26th November, 2020, signed simply “ NCB Manchester, National Crime Agency”. That reply dealt with the particulars sought at questions 5 and 6 above. The reply indicated that the writer was not able to state in respect of which offence the respondent was sentenced to 9 months' imprisonment and which offence she was sentenced to 18 months' imprisonment on 30th March, 2020, as he/she did not have a copy of the indictment.

13 The next reply was by way of email dated 3rd December, 2020, signed by a named officer of the National Crime Agency. By way of answer to question 3, it was confirmed that the respondent was represented by the same legal team, up to and including sentence. In response to questions 4 and 5, it was stated that case summaries of the offences had been included as part of the EAW papers.

14 A further reply was received by email dated 9th December, 2020 from police officer [V.C.], one of the victims of the respondent's offending. [V.C.] expressed his concerns that the respondent was not being truthful to the medical practitioners and thus, their assessments might be flawed. In respect of question 4, he set out considerable detail concerning the offences relevant to the 2016 sentence. He also enclosed the most up-to-date MG5 case summary and a copy of bad character research he had compiled on the respondent which does not appear relevant to the questions posed.

15 As no reply had been received to questions 1, 2 or all of 6, relating to the respective sentence for each count, a reminder was sent by way of letter dated 10th December, 2020, stating that the respondent had been in custody since 17th August, 2020 and the Court wished to conclude hearing the matter.

16 A reply was received by way of email, dated 7th January, 2021, from NCB Manchester, referring to an email sent to NCB Manchester on 17th December, 2020, some 3 weeks previously, from the Crown Prosecution Service confirming that the 18-month sentence had been imposed in respect of the offence concerning [B.C.]. It also advised NCB Manchester to consult the Home Office Prisons Department in respect of prison conditions. A copy of the indictment was attached.

17 A further reply was received by way of email dated 8th January, 2021 from NCB Manchester, referring to an email (no date apparent) from the HM Prison and Probation service. In response to question 1, the prison service referred to HMP Bronzefield Prison (“HMP Bronzefield”) and confirmed it is equipped with all of the required medical equipment in line with the National Institute for Health and Care Excellence guidelines and National Health Service (“NHS”) specifications, as well as setting out the wide range of medical practitioners at the prison, including psychiatrists and psychologists. The prison contains a 15-bed in-patient unit for prisoners with enhanced mental or physical care needs. Prisoners are also referred to outside hospitals if necessary and the prison has access to outside social care services. As regards question 2, the email confirmed that the prison had put measures in place to deal with Covid-19 pandemic in line with the relevant guidelines, including enhanced measures for persons who are more vulnerable to the virus.

18 The solicitor for...