ATTORNEY GENERAL -V- DAVIS, [2016] IEHC 497 (2016) 3

103. Kennedy in his opinion expresses serious reservations about various aspects of the history and diagnosis made by Prof. Baron-Cohen. He concludes that although a diagnosis of Autism Spectrum Disorder/Asperger’s Syndrome may be correct it is so mild as to be of no practical significance. He criticises the complete absence of sources of contemporary, independent and validated observations concerning childhood and adolescent development which, if available, might lend considerable support to the diagnosis made. School records had not been supplied. There were no childhood tests or public health nurse records of developmental checks disclosed.
104. Kennedy stated that the diagnostic criteria relevant to Asperger’s Syndrome include abnormal or impaired development evident at or after the age of three in language used in social communication, the development of selective social attachments and functional or symbolic play. However, there was no evidence of any of these traits. There was no evidence of any qualitative abnormality in reciprocal social interaction or communication or restricted repetitive or stereotypical patterns of behaviour, interests and activities. Prof. Kennedy did not regard Mr. Davis’ preoccupation with technology and computers as extreme enough to merit the diagnosis. No specific examples had been given of clearly abnormal behaviour concerning failure adequately to use eye to eye gaze, failure to develop peer relationships, lack of socio-emotional reciprocity or lack of spontaneity in seeking to share enjoyment, interests or achievement with other people. He noted on the contrary, that Mr. Davis described normal social development of relationships with girlfriends and appeared on his own account to have been able to support an expensive use of cannabis over a period of time by dealing cannabis to friends. There were no specific examples of abnormally delayed spoken language. There were no examples of relevant failure to initiate or sustain conversational interchange and the professor considered that he conversed normally during a long interview.
105. At para. 3 of his report, Prof. Kennedy expresses considerable doubts concerning Mr. Davis’ presentation:-

“It is essential to bear in mind that Mr. Davis appears to have presented to clinicians for the first time ever only in the context of legal proceedings concerning cannabis. In this respect criteria have been put forward in the standard diagnostic systems for differential diagnoses that should reasonably be considered in relation to abnormal illness behaviour.

• In spite of the absence of objective evidence, a diagnosis of autism spectrum disorder ASD/Asperger’s may be correct, though only if it is so mild as to be of no practical significance. This is because it is of the nature of the retrospective diagnoses of Asperger’s syndrome that it is almost impossible to rule out completely. Any educational and work related withdrawal or other apparent functional impairment however is more likely explained by cannabis use and family issues.
• Factitious disorder (ICD-10 68.1) is the intentional production or feigning of symptoms or disabilities either physical or psychological. These occur when the individual exhibits a persistent pattern of intentional production or feigning of symptoms when no evidence can be found for an external motivation such as financial compensation, escape from danger or more medical care.
• Malingering (ICD-10 Z76.5) should be considered when feigning of symptoms or disabilities is suspected in the context of an obvious external motivation. The American diagnostic and statistical manual (V65.2) says that malingering should be strongly suspected if any combination of the following is noted:

(a) Medical legal context of presentation for example the person is referred by an attorney to the clinician for examination (this may be the case in relation to Mr. Davis’s first presentation to Prof. Fitzgerald).

(b) Marked discrepancy between the person’s claimed stress or disability and the objective findings. I note Mr. Davis’s minimal if any impairments in function and his apparently extreme scores on Prof. Baron Cohen’s test.

(c) Lack of cooperation during the diagnostic evaluation. I am at a loss to understand why general practice, school and other relevant conterminous records have not been disclosed.

(d) The presence of antisocial personality disorder. I note that based on the limited information available to me, Mr. Davis appears not to meet the strict diagnostic criteria for antisocial personality disorder.”

106. Kennedy notes that all imprisonment is stressful and involves separation to a greater or lesser degree from friends and family. The Irish prison service has no special services provided for people with Asperger’s Syndrome. Although there has been a series of surveys of suicides amongst prisoners he was not aware that Asperger’s Syndrome had ever been linked to a suicide in the Irish prison service although there are many associated with substance misuse and some associated with mental illness. He noted that the suicide rate in US prisons (for sentenced prisoners as distinct from remanded prisoners) was reported to be as low, or lower than suicide rates in the community. He also noted that threats of suicide are inherently instrumental (goal directed), the products of reasoned intention. While there is a duty of care on prison authorities to prevent expressive, impulsive suicide arising from mental illness when compared with mental capacities, it is not possible for either prison services or mental health services to prevent all deliberate intentional and planned acts of suicide arising from clear consciousness and intact mental capacities. This significant difference in opinion lead to a further affidavit from Prof. Baron-Cohen.
107. In an affidavit of the 13th July, 2015 Prof. Baron-Cohen recites a number of statements made by Prof. Kennedy and simply follows them with the comment “this does not follow”, without elaboration. In commenting on Prof. Kennedy’s opinion section he states as follows:-

“In his opinion section, under point 2, the report uses criteria that are applicable to classic autism (which Gary does not have) but not Asperger’s Syndrome (which I diagnosed him to have). The signs of Asperger’s Syndrome are much more subtle than the extreme symptoms of classic autism. One does not expect to see the symptoms Dr. Kennedy lists (such as total lack of development of spoken language) in Asperger’s Syndrome, and simply by listing such symptoms in 2.4.3 and the subsequent sections, Dr. Kennedy is revealing his lack of expertise in this field. Saying that no examples of abnormally intense preoccupations have been shown to be present in Gary’s behaviour (2.4.7) makes no sense given that earlier Dr. Kennedy noted that as a child, Gary would become so preoccupied on the computer that he would soil himself, because he did not want to stop playing on the computer to go to the bathroom. Surely such examples are abnormal in their intensity.”

108. Baron-Cohen also states that the specialist clinic in Cambridge was one of the first to diagnose Asperger’s Syndrome in adults in the United Kingdom and perhaps internationally and had diagnosed over a thousand patients since its inception. He stated that Mr. Davis was extremely typical of the cases of Asperger’s Syndrome seen in the clinic.
109. Kennedy in a further report of the 13th October, 2015 made a number of critical comments on Prof. Baron-Cohen’s diagnosis and criticises aspects of his methodology. Prof. Kennedy notes that Prof. Baron-Cohen has diagnosed Mr. Davis’s Asperger’s Syndrome as very severe in that he struggles to live independently and depends to a great extent on his family and that his Asperger’s Syndrome affects his social judgment. Prof. Kennedy notes that Prof. Baron-Cohen gave no concrete examples in support of these points and that there was no objective corroboration for any of them based on any independent sources such as school reports. He adds that the conclusion does not appear to have taken into account Mr. Davis’s relationship with his girlfriend, his other friends and his apparent success as a dealer in cannabis and other relevant matters. He also notes that there is no independent source of information to support Mr. Davis’s assertions concerning sleep, appetite, anxiety and mood.
110. In a particular reference to Prof. Baron-Cohen’s rejection of his conclusions in his affidavit of the 13th July, 2015, Prof. Kennedy states his respectful disagreement with the Professor and adds:-

“Prof. Baron-Cohen may wish to consider the necessity in normal clinical practice as well as forensic practice of obtaining independent objective evidence. It is normal clinical practice not to rely on subjective self report evidence. It is also normal clinical practice to make assessments based on information specific to the individual in hand (including observation, signs and symptoms) and not a generalisation.”

111. Kennedy also comments on Prof. Baron-Cohen’s reference to the prevalence of suicidal feelings and thoughts amongst adults said to have Asperger’s Syndrome as follows:-

“He makes no comparison with normal populations. Once again, suicidal feelings and thoughts are not evidence of or related to functional mental incapacities of any sort. He comments “a person with autism who has limited language and significant learning difficulties may in contrast be more content and less socially aware that they are experiencing social exclusion …”. This is speculative, inferential and generalisation. Prof. Baron-Cohen makes no direct connection between this line of reasoning and Gary Davis.”

112. In a further affidavit Prof. Baron-Cohen states that he found the suggestion that Mr. Davis might be malingering “surprising”. He questioned whether Prof. Kennedy could be regarded as an expert at all in respect of Asperger’s Syndrome and rejected his opinion that Mr. Davis might be “malingering” as “unwarranted”. There is clearly a professional disagreement between Prof. Baron-Cohen and Prof. Kennedy as to the appropriate diagnosis for Gary Davis. No effort was made to cross-examine Prof. Fitzgerald, Prof. Baron-Cohen or Prof. Kennedy in respect of any of these differences, a fact upon which the Court commented during the course of the hearing. The Court had no affidavit evidence from Mr. Davis, any person who knew him or was in contact with him during his childhood, adolescence or short working life, or from his family concerning his behaviour and disposition over those years.
113. There is no evidence of any ongoing active treatment or counselling offered to, or availed of, by Mr. Davis in respect of his depression or anxiety which is said to involve suicidal ideation. Basic records concerning Mr. Davis’s education, school attendance, and attendance with his doctor had to be requested by the Court and were only procured and furnished after a considerable lapse of time.
114. I am satisfied having considered the evidence and the reasons set out in their respective reports to accept the evidence of Prof. Fitzgerald and Prof. Baron-Cohen, notwithstanding the misgivings of Prof. Kennedy, that a diagnosis of Asperger’s Syndrome is appropriate. I accept this evidence in the knowledge that most of the material is self-reported and a number of unexplained inconsistencies have been identified by Prof. Kennedy.
115. The court is concerned that there is a complete absence of any evidence that Mr. Davis is in receipt of any on-going medical provision or treatment for depression involving suicidal ideation. Though he reports an attempt at suicide as a teenager, there is no objective evidence of this and it does not feature in Mr. Kiernan’s or Prof. Fitzgerald’s reports. The professor advised that Mr. Davis came back to see him for follow-up unless his general practitioner could arrange follow-up locally. He was given the names of people with whom he might engage in Asperger’s type therapy. There is no evidence that he took advantage of this. He attended his general practitioner for a prescription on the 23rd April, 2014, and three further attendances are recorded on the 12th November, 2014 and 10th March and 1st September, 2015. Though he described himself as anxious and in a low mood and was prescribed medication, he disavowed suicidal thoughts. Even though there is an expression of suicidal thoughts in the last consultation on the 28th October 2015, no further steps were advised at that time though the possibility of admission for treatment was discussed. There is no evidence that Mr. Davis is under the active treatment of a psychiatrist or a psychologist. Prof. Baron-Cohen’s and Prof. Fitzgerald’s reports, helpful though they are, were prepared for the purpose of court proceedings and neither are actively engaged in the ongoing treatment of Mr. Davis.
116. I am not satisfied that the medical evidence establishes as a matter of probability that Mr. Davis presently suffers from depression accompanied by suicidal ideation of such a level and intensity that his trial on offences similar to the alleged offences could be stayed or prevented in this jurisdiction. He is not “unfit to plead”. He pleaded guilty to a very serious offence in 2015 and faced the prospect of a lengthy custodial sentence in the Circuit Court without any dramatic deterioration in his mental health. It is not claimed that he does not comprehend the charges or is unable to give instructions in these proceedings or in respect of the charges laid in the United States. The respondent’s case essentially is that if the Court makes an order extraditing him to the United States he will not be able to cope by reason of Asperger’s Syndrome and because of depression and severe anxiety with pre-trial and post conviction incarceration and has expressed the view that he will chose to commit suicide in those circumstances. Apart from acknowledging and accepting Mr. Davis’ assertion to that effect and the possible risk of such an occurrence, no attempt has been made to assist Mr. Davis nor has he sought any help from Prof. Fitzgerald or any other professional with this anticipated deterioration in his health. It is a deterioration that was not apparent during the 2015 case and will only arise because of the imprisonment which he may face if removed to the United States. Prof. Baron-Cohen regarded the respondent’s removal from Ireland and imprisonment in the United States as giving rise to a real possibility of a dramatic deterioration in his mental health involving a risk of suicide. It is therefore appropriate to consider the considerable amount of evidence adduced as to how he would be treated if extradited.

Imprisonment

117. It is a normal part of the administration of criminal justice that persons who are lawfully convicted of criminal offences are liable to the imposition of whatever penalty is permitted by law including a sentence of imprisonment. In Ireland, as in the United States, a conviction is usually followed by a sentencing hearing. The antecedents of the convicted person may be advanced to the sentencing judge as mitigation. The state of their health, mental and /or physical, will be taken into account when imposing sentence. That is what happened before the Circuit Court in 2015 when a suspended sentence was imposed on the respondent.
118. Under domestic law a person suffering from depression or Asperger’s Syndrome may be tried, convicted and sentenced for a criminal offence notwithstanding the risks that he/she may face of removal from their family or home following arrest and detention in the course of an investigation, pre-trial detention as a result of the refusal of bail, or post-trial imprisonment following the imposition of a custodial sentence. A person may only be imprisoned following a judicial decision and the balancing of the respective rights and interests involved. A sentence is imposed after the proper exercise of a judicial discretion. In the case of murder a life sentence is mandatory following conviction. The minimum mandatory sentence of imprisonment must be considered in drugs cases of a certain value or possession of firearms in defined circumstances. The sentencing court is faced with a difficult decision in a case such as the respondent’s. It is undoubtedly the case that deprivation of liberty is traumatic for a convict and his/her family. The courts have imposed prison sentences on elderly persons, young people with serious psychological problems or serious addiction issues (including some with life-threatening illness associated with drug-abuse) and people who are incapacitated or otherwise very ill. This includes those who suffer from mental ill-health, including acute depression. These circumstances are frequently advanced on behalf of the convicted person as part of a plea in mitigation and if successful, may result in a reduction of the term of imprisonment from that which might otherwise have been imposed. It is then the duty of the executive to ensure that the sentence is carried out. It must do so with due regard for the right to health and bodily integrity of those in custody as defined in the C case already referenced. This entire process is regulated by the Constitution, legislation and the common law.
119. I set out these obvious facts because it is the court that ultimately determines the appropriate sentence in a proportionate way, independently and with due regard to the evidence. The assertion by the accused that if sentenced to a term of imprisonment he will seek to take his life , if taken at face value and genuinely asserted, must be properly regarded as a manifestation of his illness which may be taken into account at the sentencing stage. It is not something that of itself could be regarded as sufficient to justify the staying of a trial or dictate or determine the sentence to be imposed. It is an unfortunate fact of life that persons who may be at risk of, or develop a risk of suicide are imprisoned from time to time. If there is such a risk it falls to be managed by the prison authorities by providing appropriate medical intervention if necessary by removal for psychiatric care. The administration of criminal justice within these principles is authorised and mandated under Articles 34, 38 and 40.3 of the Constitution. This is the constitutional framework within which the respondent’s claim must be measured when he asserts his right to a fair trial, bodily integrity and health in opposing his extradition.

Sentencing

120. Herbert J. Hoelter is the Chief Executive Officer and co-founder of the National Centre on Institutions and Alternatives (NCIA) in the United States and directs its sentencing and prison consulting services. He has wide experience of the Federal Prison Service and federal sentencing procedures. He holds a Master of Social Work degree from Marywood College, Pennsylvania and served as an adult faculty member at the American University and on the faculty of the National Judicial College. He was asked to give his professional opinion concerning the respondent’s extradition on a number of issues including the potential sentence to which he is exposed if convicted. He provided an analysis of federal sentencing guidelines in respect of the charges laid in the indictment. He is not a qualified lawyer or an expert in United States law. He accepted that these guidelines were advisory only but were a reliable guide to the sentence that might be imposed on the respondent if convicted. Mr. Hoelter noted that Mr. Davis was exposed to the following guideline calculations for each offence. The guidelines allowed for the allocation of points which suggested the range of sentence applicable. He stated that on count 1, narcotics conspiracy, a sentencing guideline range of 121-151 months was appropriate: it also carried a statutory minimum prison sentence of 120 months. Count No. 2, computer hacking carried a guideline range between 27-33 months or 121-151 months depending upon the amount of revenue for which Mr. Davis might be held responsible. Count No. 3 the money laundering conspiracy, yielded a sentencing guideline of 41-51 months or 188-235 months based upon the offence level for the underlying offence from which laundered funds were derived. He also stated that the guidelines provide for a calculation for multiple counts as well as a potential reduction for acceptance of responsibility. He estimated “based upon the multiple account calculation” that Mr. Davis might receive a sentence with an estimated guideline range of 151-188 months or 235-293 months based upon various factors within the guidelines. He might also be eligible for an acceptance of responsibility adjustment if he accepted a guilty plea to the charges. If he were granted this adjustment, Mr. Davis would have an estimated total offence guideline range of 108-135 months or 168-201 months. He states that the severity and length of the sentence that Mr. Davis is likely to receive if convicted is completely disproportionate to a sentence he would likely receive in Ireland and contradicted any human rights obligations owed to him especially in the light of the diagnosis of Asperger’s Syndrome. He noted that the United States sentencing guidelines were “ill-equipped to provide any rehabilitative function to a person with Asperger’s”.
121. It is clear that the respondent does not claim that he is suffering from mental ill-health or AS such that it renders him “unfit to plead” to the charges against him. He is fully capable of understanding the charges, the evidence against him, these proceedings and trial procedures. He has furnished full instructions to his solicitors and is clearly able to participate in this case. No issue arises about his competence as a witness. It is not claimed that there is any basis upon which to raise or maintain the “insanity” defence as understood in Irish law under the provisions of the Criminal Justice Act 2006. His AS and depression are said to be relevant in the context of pre-trial and post trial imprisonment in a US prison.
122. Turner accepts that if convicted Mr. Davis will be subject to the sentencing guidelines but notes that as a matter of law they are purely advisory (United States v. Booker 543 US 220 (2005) ). A sentencing judge retains discretion to sentence a defendant at any point within the minimum and maximum allowable by statute. For example, Philip Nash, a co-defendant with Mr. Davis in the indictment pleaded guilty to counts 1 and 3. He served as a member of the Silk Road customer supply staff and was extradited from Australia. He pleaded guilty in March 2015 in respect of the narcotics and money laundering conspiracy counts. A probation officer’s report determined that the guideline of 121-151 months was applicable. However, he was sentenced to time served, 17 months imprisonment. Mr. Nash was described as a “primary moderator” on Silk Road. He was alleged to have been responsible for monitoring user activity or discussion forums associated with the site, provided guidance to forum users as to how to conduct business and reported any significant problems on this forum to the site administrators. Mr. Davis is indicted as a site administrator and is said to have been responsible for, among other things, monitoring user activity for problems, responding to customer service enquiries and resolving disputes between buyers and vendors.
123. Turner states that the guideline range applicable cannot be ascertained with certainty until a sentencing judge makes a specific finding on the matter. This will be based on a pre-sentence investigation prepared by the Probation Office of the United States District Court in respect of Mr. Davis’s offence, conduct and criminal history. Mr. Turner notes that while count 1 carries a mandatory minimum sentence of ten years imprisonment, United States federal law provides for relief from such mandatory minimum terms under certain circumstances. In the case of Mr. Nash, relief was granted because of his lack of criminal history, his low level role in the offence, the fact that he truthfully provided all information he knew about his offence to the government following extradition and certain other statutory factors. Mr. Nash became eligible for a so-called “safety valve” relief pursuant to Title 18 United States Code section 3553(f) which rendered the ten year mandatory minimum sentence inapplicable to him. It was also possible for a defendant facing a mandatory minimum sentence to negotiate a plea to a lesser offence that does not carry that sentence.
124. The concept of statutory minimum mandatory sentences from which relief may be given in certain circumstances is well established in Irish law in respect of controlled drugs and firearms offences. There is clear jurisprudence governing the factors that may be relied upon in such cases by way of mitigation to reduce the sentence below the minimum mandatory term.
125. I am not satisfied that the extensive criticism of the sentencing regime or the limited evidence adduced of the effect thereof establishes that, if extradited, there is a real risk of violation of the respondent’s rights to fair procedures by reason of the sentencing guidelines or otherwise under Article 38 or 40.3 of the Constitution or his rights under the European Convention. It is inappropriate for this Court to engage in a detailed review of the application of sentencing guidelines, policies or penalties to be imposed under the laws of the United States or to require parity between the laws applicable in both jurisdictions before granting an extradition request. The court has already indicated that it is satisfied that the rule of specialty will not be breached if the respondent is extradited. The court is obliged in an individual case to examine a claim that fundamental trial rights will be violated if a person is extradited. However, the court is not satisfied that the sentencing law, principles and guidelines applicable in the Federal Court in this case could in any realistic way be regarded as giving rise to a real risk of violation of those rights. There is no evidence that they do not conform to the “exigencies of our Constitution” or that extradition would lead to a denial of the respondent’s fundamental or human rights if tried, convicted and sentenced under the law of the United States.

Conditions of Confinement

126. Fears have been expressed by Mr. Hoelter and Prof. Baron-Cohen of the likely effects of incarceration in the United States on Mr. Davis. Mr. Hoelter states that Mr. Davis if extradited would be placed immediately in custody and transferred to the Metropolitan Correction Centre (MCC) a maximum security prison in Lower Manhattan, New York :-

(a) It is claimed that because of (i) the offences charged, (ii) his Asperger’s Syndrome disorder, (iii) as a foreign inmate from the Republic of Ireland in a high profile case, he would be placed in a Special Housing Unit (SHU) in the MCC. As a result he would be subjected to “extreme” prison conditions. He would be placed in an isolated cell for twenty-two to twenty-three hours per day, would be entitled to receive a one hour social visit per week and a maximum of two fifteen minute telephone calls per week (a maximum of three hundred minutes per month). He would be denied access to an e-mail connection because the charges laid against him involve the use of computers. There may also be an issue concerning the provision of medication currently prescribed.

(b) Mr. Hoelter believes that Mr. Davis would remain for between six to eighteen months at MCC before legal proceedings reach the stage of a plea agreement or trial.

(c) It is submitted that conditions at MCC would render Mr. Davis susceptible to bullying and violence from gangs in MCC, a lack of proper medical treatment, overcrowding, and invasive body searches and the use of restraints when being moved around the complex and to court.

127. Adam Johnson, Supervisory Attorney with the Federal Bureau of Prisons assigned to the MCC describes it as a pre-trial detention facility which houses inmates of all security levels and levels of functioning. He is responsible for the evaluation and resolution of various legal issues relating to MCC. He rejects the proposition that Mr. Davis would be housed in a special housing unit (SHU) as a matter of course. These are units where inmates are securely separated from the general inmate population either alone or with other inmates due to administrative detention status or disciplinary segregation status. He describes administrative detention status as a non-punitive administrative status in which an inmate is removed from the general population when necessary to ensure the safety, security and orderly operation of correctional facilities or to protect the public. An inmate may be placed in a SHU as a new arrival at MCC and pending a determination as to where he or she should be housed, pending transfer to another institution or location. Otherwise a prisoner may he paced in SHU if under investigation for violating a prison regulation or the criminal law within the prison or the inmate has requested or staff has recommended administrative detention status for his own protection. Mr. Johnson states that none of the factors cited by Mr. Hoelter namely an inmate’s offence conduct, the fact that he has a psychological condition, that he is being extradited from a foreign country or the high-profile nature of the case operated as a basis upon which to house him in the SHU without some connection to the factors referred to above.
128. Johnson also states that inmates are housed in the general population at MCC and generally have access to recreational facilities within their housing units during daytime hours as well as periodic access to additional outdoor recreational facilities on the rooftop. There is no basis to suggest that he will be placed in an isolation cell and allowed out for no more than one to two hours per day for exercise. Furthermore, the mere fact that an inmate’s offence involved the alleged use of a computer does not “necessarily imply that he will be denied e-mail access”. These restrictions are determined on a case by case basis.
129. Associate Warden Eldridge of MCC also rejects Mr. Hoelter’s assertion that Mr. Davis would be housed in a SHU upon arrival. Though he acknowledges that Mr. Davis’ co-defendants were previously held in SHU upon arrival for about fifteen days in one case, and less than a day in another, he was satisfied that based on the information available to him, Mr. Davis would likely be housed in the general population.
130. The Chief Psychologist at MCC, Elisa Miller PsyD reviewed the earlier affidavit submitted by Prof. Baron-Cohen and Mr. McErlean concerning the applicant’s Asperger’s Syndrome and depression. She states that new inmates are screened by psychology staff within twenty-four hours of arrival. Any psychological medications which the inmate may be taking are noted and continued upon admission where appropriate. In addition the inmate’s mental health status is evaluated to determine whether there is any imminent risk of self harm and whether the inmate is stable and appropriate for placement in the designated setting. She states that regardless of the initial evaluation all newly designated inmates are seen within fourteen days for evaluation by a doctoral level psychologist. This evaluation focuses on “collecting the inmate’s mental health history, as well as identifying any current symptoms and treatment needs”. There is also a full-time psychologist on the staff. She sets out in detail the responsibilities of the psychology department staff at the MCC ranging from assisting inmates in making a satisfactory adjustment to conducting individual treatment and crisis intervention sessions as needed or on an emergency basis. She was satisfied on the basis of her familiarity with the psychology services available to MCC inmates that there was no reason to believe that Mr. Davis’s reported mental health conditions could not be successfully managed at MCC or within the Federal Bureau of Prisons facilities generally.
131. Anthony Bussanich M.D. is the Clinical Director of the MCC since 2009. He noted from the affidavits submitted by Mr. McErlean and Prof. Baron-Cohen that Mr. Davis was at that time prescribed 10mg of Citalopram daily. He also noted that he had been previously prescribed Fluoxetine at 20mg daily (subsequently reduced to 10mg daily). These were medications which are used and available to prisoners at MCC or within the federal prison system and could be prescribed for Mr. Davis if deemed medically appropriate by MCC personnel.
132. In a later affidavit Prof. Juan Mendez, a UN Special Rapporteur on Torture and Professor of Human Rights at Washington College, Washington D.C. stated that he has made repeated requests to visit the MCC and several other US prisons but had not been granted the opportunity to do so. He concluded that the United States Government violated the rights of a named inmate who was allegedly held in solitary confinement at MCC and later at a maximum security federal prison in Florence, Colorado and concluded that he had been subjected to “cruel and/or inhuman treatment or punishment”. He believes that given the nature of the charges against Mr. Davis, he was likely to be held in the highly restrictive south wing of the MCC or in a SHU where detainees are held in solitary confinement. He stated that as Mr. Davis had been diagnosed with Asperger’s Syndrome any period spent in solitary confinement could have serious consequences for his mental health. He believed that someone with Asperger’s Syndrome would struggle to cope even if housed within the general population at MCC.
133. The difficulties for somebody with Asperger’s Syndrome who is prosecuted, convicted and imprisoned were summarised in an article exhibited by Mr. Hoelter “Asperger’s Syndrome in the Criminal Justice System”(Judge Kimberly Taylor (retired), Dr. Gary Mesibove and Dennis Debbaudt, 2009 – AANE):

“If an individual with AS is taken into custody, alert jail authorities. This person may be at risk in the general jail population. For short term custody, consider segregation, monitoring, and a professional medical and development evaluation. Incarceration would be fraught with risk for the person and anyone in contact with him or her. The direct manner, off-beat behaviours, and other characteristics of the person with AS may be read by other inmates as an invitation to exploit and control. Correction professionals may see a rude, incorrigible person. Good behaviour privileges will be hard to earn. Correction professionals who work with the incarcerated AS population will benefit greatly from a comprehensive training – or at least a good briefing – and access to ongoing assistance from a professional who is familiar with AS.”

This article also recognises the reality that people with AS may have to engage with the criminal justice system whether as victims of crime, witnesses or accused persons. The article is an encouragement to recognise and deal with the differences presented by those who have AS and address the challenges presented by and for them by the criminal justice system in a reasonable, fair and proportionate manner. It recognises the fact that those with AS may be detained in the course of an investigation or imprisoned pre-trial or post-trial following conviction.

134. In assessing the evidence advanced in respect of pre-trial detention at MCC I have considered all affidavits submitted and the reports exhibited. There has been no cross-examination of any of the deponents by either side. There has been considerable criticism expressed about the treatment of pre-trial detainees at MCC and the fact that they have been subjected to prolonged periods of solitary confinement. The more prominent cases identified in the reports relate to those suspected of terrorist offences. The court is concerned with the facts of this particular case and whether Mr. Davis will suffer a real risk of the extreme conditions of confinement described by Mr. Hoelter. Mr. Hoelter criticises the affidavits from prison officials and professionals as containing mere restatements of policy which is well-documented but not implemented. I am not satisfied that this is so. Their evidence is relevant to the respondent’s case. There is undoubtedly a great deal to criticise in the penal system in the United States as there is in the Irish penal system but I am satisfied that though pre-trial detention in the United States involves a number of challenges for the respondent and for the prison administration, reasonable and adequate provision has been made within MCC to receive and accommodate those who have Asperger’s Syndrome and/or suffer from depression.
135. It is not the law that a person suffering from Asperger’s Syndrome and/or depression cannot be imprisoned in this jurisdiction or extradited to a third country or within the European Union simply because imprisonment would give rise to changes in environment or disturbance in routine or removal from family. These factors may cause enormous upset to the family of the proposed extraditee and will likely be regarded (as in this case) as undesirable by his diagnosing psychiatrist or psychologist. This may inform the type of regime to which he should be subjected or the length of a sentence to be imposed. However, I accept the evidence from the MCC personnel concerning the likely procedure, assessment, and conditions of confinement to which Mr. Davis will be subjected if extradited. I do not consider that the evidence establishes that the high threshold of ill-health and risk to life required to justify a refusal to extradite on those grounds and the potential violation of the rights to health, bodily integrity or life has been reached.
136. The court is mindful of the threat of self-harm which has been repeated on behalf of Mr. Davis in the course of these proceedings. The possibility of self-harm arising from depression and prompted by any number of factors (including potential conviction and sentence for a criminal offence) is a matter which judges and prison authorities must regrettably address from time to time. As already noted the issue of mental ill health, Asperger’s Syndrome or depression can be addressed and assessed by a sentencing court when considering the appropriate sentence. There is also a heavy burden on prison officials before and after conviction to assess and monitor prisoners committed to their care and custody who are at risk. However, I am satisfied on the evidence that procedures are in place for the evaluation and assessment of persons arriving at MCC and during the course of their detention there in respect of their mental health and any treatment that may be required in respect of medication or otherwise including threats of self harm or suicide.

Post-Conviction Imprisonment

137. Hoelter describes how a person sentenced to a term of imprisonment by the Federal Courts is subjected to a security designation process to determine the security level of the institution to which he may be committed as well as his proposed custody classification. He applied the Federal Bureau of Prisons Inmate Load and Security Designation Form Criteria in respect of security designation and custody classification and concluded that it was likely that Mr. Davis would be assigned to a medium security federal prison. This designation would take place at a centre in Oklahoma City to which he would be conveyed under restraint and from which he would be conveyed to the designated prison.
138. Hoelter then describes the conditions of imprisonment in medium security prisons. The respondent’s fellow inmates would likely have prison records or have committed major felony offences. He would be housed in a cell, subject to controlled movement and spend most of his time in that cell or on the cell block. There is nothing in this description of prison conditions that of itself gives rise to a potential breach of the respondent’s rights. However, it is claimed that he would suffer more severe difficulties than others because of his Asperger’s Syndrome and depression in coping with the prison environment or engaging with fellow inmates or staff. There would be considerable potential for misunderstandings because of inappropriate responses and engagement by Mr. Davis with people whom he encounters whilst in prison.
139. In response, Mr. Ralf Miller, a Senior Designator at the Federal Bureau of Prisons Designation and Sentence Computation Centre (DSCC) in Grand Prairie, Texas states that the Bureau of Prisons programme on inmate security designation and custody classification requires staff to classify inmates based on the level of security and supervision required. This is based on their individual programme needs such as education, vocational training, individual counselling, or mental/medical health treatment. Other factors which may be considered include the length of sentence imposed, the severity of the current offence, criminal history, history of violence, and escape history, if any. Information is received from the prisoner’s sentencing court, the US Marshall’s Service, the US Attorney’s Office and the United States Probation Office. Points are then calculated for a particular prisoner which are used to match him with a commensurate security level institution. If an inmate’s security score does not accurately reflect his security needs staff may use professional judgment to place him in a facility inconsistent with the scored security level. The pre-sentence investigation report and other documents reflecting his medical and mental health history are reviewed. The known circumstances of the prisoner are part of the assessment of his medical and mental health.
140. There are four levels of security categorisation. Level 1 designates those with least need of medical or mental health care and level 4 includes those requiring the greatest level of such care. If a prisoner comes within level 3 or 4 or when staff believe further medical screening is required to determine the most appropriate facility for him, the Office of Medical Designation and Transportation reviews the inmate’s documents to assess and assign the appropriate medical and mental health screen levels. If it is determined that the criteria for screen levels 3 or 4 have been reached staff will designate an inmate to an institution capable of providing appropriate medical and mental health care. Otherwise he will be returned to the DSCC designators to assign his initial institution placement. In addition once a prisoner arrives at the designated institution to serve his sentence, health care professionals conduct intake screenings before he may be cleared for assignment to the general population. If medical staff determine that the inmate’s medical or mental health care level requires adjustment, a request for transfer to a facility that can better address his medical and mental health needs can be submitted. However, as noted by Mr. Turner it is not possible to predict in advance the type of facility to which Mr. Davis would be assigned. Mr. Turner believes that it was most unlikely based on his familiarity with Mr. Davis’s offence, conduct and personal history, that he would be designated to serve a sentence at a maximum security facility. Mr. Hoelter suggests a medium security facility. This is not denied but it is clear that such a determination could only be made by the Bureau of Prisons following sentencing based upon all information available at that time.
141. Once again, Mr. Hoelter, based on the reports exhibited in his affidavit suggests serious deficiencies in the adequate provision of medical and mental health care in MCC and within the Federal Bureau of Prisons emphasising in particular, documented inadequacies in prison mental health services and an insufficient number of properly trained personnel within the Federal Prison Service.
142. Hoelter reiterates that the information contained in the replying affidavits filed on behalf of the applicant concerning imprisonment post-conviction is aspirational and does not accord with his experience of the failure to properly assess, treat and monitor vulnerable prisoners post conviction.
143. The practice and procedures which will be applied to the respondent on arrival at MCC and before designation to a particular prison if sentenced following conviction were fully described to the court. They are calculated to identify, address and take reasonable account of the difficulties he may experience because of depression, anxiety and AS during any period of imprisonment. The clear purpose is to provide reasonable care and, when appropriate, treatment (including medication) while he is in custody. The court is satisfied to accept the evidence given by officials of the United States Federal Bureau of Prisons and Mr Turner as an Assistant United States Attorney on these matters. The court also regards this evidence as a solemn assurance to the court by the Government of the United States that all reasonable and necessary care and treatment will be given to the respondent during all periods of imprisonment while in the United States.
144. The court also notes that there has been very little engagement by the respondent with the psychiatric services in this jurisdiction. Apart from a few visits to his general practitioner and a continuing prescription for anti-depressant medication, the respondent has not found it necessary to seek any professional help or therapy from Prof. Fitzgerald. The first engagement with Prof. Fitzgerald was in advance of his sentencing hearing in January 2014. Prof. Baron Cohen believes that the respondent’s removal from home and Ireland and imprisonment in the United States is a very serious matter and may precipitate a suicide attempt. However, apart from the medication no other treatment has been availed of or required. I have taken this into account in assessing the evidence of risk to which extradition may expose the respondent but I am not persuaded that it gives rise to a real risk of a violation of the respondent’s Article 40.3 rights.

Article 3

145. I am not satisfied that the respondent has established that there are substantial grounds for believing that if extradited to the United States he will be exposed to a real risk of being subjected to treatment of an inhuman or degrading nature by reason of the conditions of confinement to which he will be subject and/or the fact that he has AS and suffers from depression and generalised anxiety with thoughts of self-harm and suicide prompted and exacerbated by a fear of isolation and separation if imprisoned in the United States. The court is satisfied that whether detained in the MCC or in any other federal prison if convicted and sentenced, he will have access to mental health services wherever he may be imprisoned.
146. In Aswat v The United Kingdom (Application no. 17299/12, 16th April, 2013) the European Court of Human Rights held that the applicant’s extradition from the United Kingdom to the United States on terrorist related charges would constitute a violation of Article 3. The applicant suffered from paranoid schizophrenia which required his continued detention in a hospital for his own health and safety. Though it was accepted by the Court that regardless of where he was detained in the United States federal prison system he would have access to medical treatment, nevertheless, the severity of his mental disorder indicated that it was appropriate for him to remain in hospital in the United Kingdom. There was no guarantee that if extradited, he would not be detained in ADX Florence, a maximum security prison which operated a highly restrictive regime with long periods of social isolation. The court does not consider the respondent’s case on the basis of comparative medical case-histories: each case must be considered on its own facts. The Aswat case is an indication, however, of the threshold of evidence applicable in Article 3 cases. I am not satisfied that the evidence in this case establishes a history, or present state, or treatment of mental disorder of a similarly serious level or intensity as that exhibited in Aswat nor is there any real risk that the respondent would be considered for imprisonment in a similar maximum security facility. The court is satisfied that the United States authorities will act to protect his mental and physical health and take appropriate steps to address any symptoms of depression or continuing anxiety by appropriate treatment (including medication) and take such steps as are appropriate and necessary to accommodate him safely as a person with AS within the prison system.

Article 8

147. The respondent submits that his extradition is contrary to his right to respect for his private life and family under Article 8 because of the serious threat that imprisonment in a United States prison and removal from his home and family poses for his health in that there is a real possibility that due to his AS and mental ill-health he will self harm or commit suicide.
148. The removal of a person from his home and country are a normal incident of extradition and cannot be sustained as a ground of objection. It is clear that removal involves an interference with family rights which has been recognised as proportionate and in the interests of a democratic society and in particular, the pursuit and the bringing of fugitives to justice. The court must attach significant weight to this public interest having regard to the very serious nature of the conspiracy charges contained in the warrant and the fact that they encompass an international series of alleged criminal trade transactions involving the use of computers and large quantities of drugs, money and other illicit goods.
149. It is submitted that the consequences of the respondent’s proposed extradition would be very severe and will give rise to “exceptionally injurious and harmful consequences” for the respondent which are disproportionate to the legitimate aim pursued of bringing him to justice. Even if the court were satisfied to accept the level of risk to his life or health suggested on behalf of the respondent, I am satisfied that it is of a nature that will be adequately addressed in the United States. Though it is clear that family support outside prison, in the community and at home is the best way to deal with his vulnerabilities and that his separation from family will be difficult for him and his family, nevertheless, the evidence is that appropriate assessment, care and if necessary, treatment is available within the prison system. All information concerning the respondent will be made available to the authorities concerning his AS, depression and anxiety and any expressions of suicidal intent. The court is satisfied that the American prison officials will take all necessary measures to protect him. The court is not satisfied that the respondent’s surrender is, in the circumstances, a disproportionate measure or will breach his rights to respect for his health or family life under Article 8.

Conclusion

150. For all of the above reasons the court is satisfied that the respondent should be surrendered and extradited to the United States.

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