Extradition

The Law

Section 91 of the Extradition Act 2003 provides:

“Physical or mental condition

(1) This section applies if at any time in the extradition hearing it appears to the judge that the condition in subsection (2) is satisfied.

(2) The condition is that the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him.

(3) The judge must—

(a) order the person’s discharge, or

(b) adjourn the extradition hearing until it appears to him that the condition in subsection (2) is no longer satisfied.”

In this context, the word ‘oppressive’ relates to hardship to the requested person resulting from his physical or mental condition in the context of facing criminal proceedings and their consequences in another country: Kakis v. Cyprus [1978] 1 WLR 779.

Case Law and Key Judgements

If there is no prospect of regaining fitness, extradition cannot be agreed to: The Government of the Republic of South Africa v Dewani [2012] EWHC 842

Dewani suffered from PTSD and depression, to the extent he was unfit to plead in his current state. It was accepted an extradition request “made simply for the purpose of subjecting a person to indefinite preventive detention as a mentally disordered person permanently unfit to stand trial would fall outside the 2003 Act, as the extradition was not for the purpose of prosecuting that person for a criminal offence.” Therefore, if there is no prospect of regaining fitness, extradition cannot be agreed to.

The Court held that it would be unjust and oppressive to return Dewani unless The Government of the Republic of South Africa were prepared to give an undertaking that he would be free to return to the UK if he remains unfit and there is no prospect of his being tried within a reasonable period of time. It was left to The Government of the Republic of South Africa to consider whether they were prepared to give such an undertaking.

For suicide to qualify, it must be a substantial risk and due to the mental condition, not a voluntary act

Turner v USA [2012] EWHC 2426, Aikens LJ summarised the propositions which could be derived from extradition cases relating to suicide risk:

“(1) The court has to form an overall judgment on the facts of the particular case.

(2) A high threshold has to be reached in order to satisfy the court that a requested person’s physical or mental condition is such that it would be unjust or oppressive to extradite him.

(3) The court must assess the mental condition of the person threatened with extradition and determine if it is linked to a risk of a suicide attempt if the extradition order were to be made. There has to be a “substantial risk that [the appellant] will commit suicide”. The question is whether, on the evidence the risk of the appellant succeeding in committing suicide, whatever steps are taken is sufficiently great to result in a finding of oppression.

(4) The mental condition of the person must be such that it removes his capacity to resist the impulse to commit suicide, otherwise it will not be his mental condition but his own voluntary act which puts him at risk of dying and if that is the case there is no oppression in ordering extradition.

(5) On the evidence, is the risk that the person will succeed in committing suicide, whatever steps are taken, sufficiently great to result in a finding of oppression?

(6) Are there appropriate arrangements in place in the prison system of the country to which extradition is sought so that those authorities can cope properly with the person’s mental condition and the risk of suicide?

(7) There is a public interest in giving effect to treaty obligations and this is an important factor to have in mind.”

Turner proposition (4) should be read in a common-sense, broad-brush way giving full effect to the question whether the act of suicide would be the person’s voluntary act. Modi v Government of India [2022] EWHC 2829

The term “Impulse” may be given the lay meaning of “compulsion”, “wish”, “desire” or “intentions”; but none should be given particular precedence.
“Capacity” in this context is synonymous with “ability” or “capability” and it does not import the provisions or workings of the Mental Capacity Act 2005.

Recent suicidal acts and concertedness of effort have been decisive factors in judgements of extradition cases (USA v Dunham & Anor [2014] EWHC 334; USA v Turner [2012] EWHC 2426; Latvia v Jansons [2009] EWHC 1845; Poland v Wolkowicz [2013] 1 WLR 2402; Farookh v Judge of the Saarbrucken Regional Court (Germany) [2020] EWHC 3143). Judgements have also considered the impact of the extradition proceedings and likely effects of removal of this uncertainty as a precipitating or potentiating factor of the mental disorder or suicide risk (SA v Dewani [2014] 1 W.L.R. 3220; USA v Turner [2012] EWHC 2426).

The expected impact of conditions following extradition on the mental disorder should be considered, both in terms of potentiating factors in the destination (including interventions to manage risk, such as suicide watch, and the level of security of the prison; USA v Assange [2021] EWHC 3313) and loss of protective factors in the UK (e.g. family; USA v Love [2018] EWHC 172; USA v McDaid [2020] EWHC 1527). Even where there is complexity, it is necessary to show that it would not be possible to provide the particularly detailed and complex management and treatment that the condition requires (O’Donnell v High Court of the Republic of Ireland [2022] EWHC 458; Bullman v High Court In Dublin (Ireland) [2022] EWHC 194).