Extradition hearing - Mental health - Appellant's extradition being sought to South Africa to face charges of murder and kidnap

Government of the Republic of South Africa v Dewani: QBD (Div) (Sir Roger John Thomas (president) and Mr Justice Ouseley): 30 March 2012

Section 91 of the Extradition Act 2003, so far as material, provides: '(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.'

The appellant, a British citizen, married AH on 29 October 2010 in Mumbai. They went on honeymoon to South Africa. They hired a taxi driver, ZT, to act as their driver and tour guide while there. While driving to a township, the car was stopped by two men. The appellant's account was that he was forced from the car at gunpoint and the car was driven off. His wife's body was found in the car the next morning. She had been killed by a single gunshot to the neck. The appellant returned to the UK on 16 November 2010. As a result of police investigations, it emerged that there was evidence to suggest that the appellant had in effect arranged for the murder with the help of ZT. ZT pleaded guilty on 7 December 2010 and was sentenced to 25 years' imprisonment, with seven years suspended.

Although the appellant had no history of mental illness, he began to exhibit symptoms of depression and post-traumatic stress disorder (PTSD) on his return. He was arrested and remanded on conditional bail. On 10 January 2011, the respondent (the government of South Africa) sought his extradition to South Africa under part 2 of the Extradition Act 2003 (the 2003 act) on charges of murder, kidnapping, robbery with aggravated circumstances and obstructing the administration of justice arising out of the murder of his wife. The request was certified by the secretary of state.

An extradition hearing took place before the senior district judge. The appellant's extradition was contested on the grounds that, inter alia: (i) his extradition would breach his rights under articles 2 and 3 of the European Convention on Human Rights, due to the prison conditions in South Africa and the risk of suicide due to his mental health problems; and (ii) his extradition was barred by section 91 of the 2003 act. The senior district judge dismissed all of the objections. In so doing, he accepted the undertakings given by the national commissioner of correctional services on behalf of the government of South Africa as to the conditions under which the appellant would be held which would prevent risk of infection by HIV/AIDS or of attack by fellow prisoners, and found further that although there might be a risk of suicide it did not mean that his extradition would breach articles 2 and 3 of the convention. The senior district judge accepted that section 91 of the 2003 act provided additional protection but concluded that the bar under section 91 was high and, although there was hardship, it was not 'unjust' or 'oppressive'. The secretary of state ordered the appellant's extradition. The appellant appealed.

There were two issues in the appeal: (1) whether the appellant's mental condition and the attendant risk of suicide were such that he should not be extradited; and (2) if so, whether the prison conditions which he would experience in South Africa were such that it would be a breach of articles 2 and 3 of the convention to extradite him. It was convenient to consider the issue in relation to prison conditions first. The expert called on behalf of the respondent was of the view that extradition would jeopardise the appellant's treatment regime and the prospects of recovery. The appeal would be allowed.

(1) In the light of the undertakings which the court accepted would be honoured, there would be no violation of articles 2 and 3 by reason of the risk of infection by HIV/AIDS or of attack by fellow prisoners (see [35] of the judgment).

(2) The words in section 91 set out the relevant test and little help was gained by reference to case law. It was not likely to be helpful to refer a court to observations that the threshold was high or that the graver the charge the higher the bar, as that inevitably risked taking the eye of the parties and the court off the statutory test by drawing the court into the consideration of the facts of the other cases. The term 'unjust or oppressive' required regard to be had to all the relevant circumstances, including the fact that extradition was ordinarily likely to cause stress and hardship; neither of those was sufficient. It was not necessary to enumerate those circumstances, as they would inevitably vary from case to case.

The citation of decisions which did no more than restate the test under section 91 or apply the test to facts was strongly to be discouraged. Where section 91(3)(b) was engaged, namely whether the hearing should be adjourned until it appeared that the appellant's mental condition was such that it would no longer be unjust or oppressive to extradite him, the question of what was unjust or oppressive was fact-sensitive. The test was more difficult to apply where the quantification of the degree of risk to life was less certain and the prognosis was also less certain. In such a case, the interests of justice in seeing that persons accused of crimes were brought to trial had to be brought into account (see [73], [75], [76], [77] of the judgment).

In the instant case, on the basis of the strength of the psychiatric and medical evidence as to the unusual combination of PTSD, depression to such a severe degree and the appellant's other conditions it was clear that extradition presented a real and significant risk to the life of the appellant. It was an exceptional case where the expert called on behalf of the respondent was of the view that extradition would jeopardise the present treatment and the prospects of recovery.

Increasing the prospects and speed of recovery were in the interests of justice, as they would increase the prospects of a trial being held sooner rather than later (see [78]-[80], [83] of the judgment). The senior district judge had erred and should have exercised his powers under section 91(3)(b) of the 2003 act and ordered that the extradition hearing be adjourned (see [83] of the judgment).

Clare Montgomery QC and Julian Knowles QC (instructed by Hickman and Rose) for the appellant; Hugo Keith QC and Ben Watson (instructed by the Crown Prosecution Service) for the respondent.