Haroon Aswat, R (On the Application Of) v Secretary of State for Home Department

Where a requested person has serious mental illness, extradition may engage Article 3 if the conditions of transfer and detention create a real risk of severe deterioration. The court must assess the likely impact of extradition as a whole, including the treatment regime available in the requesting state, rather than considering medication alone. A residual discretion not to extradite may arise where a subsequent event makes extradition incompatible with Convention rights. The assessment is objective and must apply the standard Article 3 threshold. Where the risk identified by the Strasbourg Court remains, extradition requires sufficiently precise assurances and arrangements for continuity of clinical care.

The claimant, a British citizen detained in the United Kingdom since 2005 pending extradition to the United States, suffered from paranoid schizophrenia and had been treated successfully at Broadmoor Hospital. The Strasbourg Court had finally held that extradition would violate Article 3 because of the current severity of his mental condition and the uncertain conditions of detention.

The Secretary of State later declined to withdraw the extradition order after receiving further information from the United States. The claimant sought judicial review, arguing that the information did not remove the Article 3 risk and that he should have been consulted. The central issue was whether the new information would have produced a different result under the approach adopted by the Strasbourg Court.

1. Outcome. Permission was granted and the Secretary of State’s decision of 12 September 2013 was quashed. The court adjourned final relief for 60 days to allow the United States to consider providing assurances.
2. Residual discretion and standard of review. Despite the mandatory terms of section 118(2) of the Extradition Act 2003, the Secretary of State retained, on the facts, a residual discretion not to extradite where a subsequent event made extradition incompatible with Convention rights. The court had to determine objectively whether there was a real risk that extradition would infringe Article 3: McKinnon v Government of USA [2007] EWHC 762 (Admin).
3. Effect of the Strasbourg judgment. The court adopted the approach and factual findings of the Strasbourg Court. The determinative question was the likely impact of extradition and all it entailed on the claimant’s mental condition. The standard Article 3 test remained whether there were substantial grounds for believing that extradition would expose him to a real risk of treatment of sufficient severity to breach Article 3.
4. Application to the evidence. The claimant’s stability depended on more than medication. The therapeutic hospital environment, psychological treatment, educational and recreational activities, social contact and family visits were material parts of his treatment. Removal to a prison, even one with significant mental-health provision, created a real risk of relapse into an acute psychotic state and severe deterioration. The further information concerning pre-trial detention, competency assessment and possible detention at ADX Florence did not remove that principal risk.
5. Assurances and clinical continuity. The court considered that the basic concern could be answered only by an assurance that the claimant would be transferred immediately on arrival to a Psychiatric Referral Centre and remain there unless his treating clinician, or an equivalent clinician, determined that transfer would not compromise his health and safety. Detailed liaison and exchange of information between the treating clinicians should precede extradition.
6. Procedural fairness. It was unnecessary to decide the consultation issue. On balance, the court would have held that the Secretary of State was not under a duty to invite representations before making the decision, particularly because the court itself had considered the Article 3 issue and the claimant had had a full opportunity to present his case.

The Lord Chief Justice agreed entirely with Mitting J. He additionally stated that, in future cases involving serious mental illness and extradition outside the European Union, the responsible clinicians should liaise, identify agreed matters and define any remaining disputes for determination by the national court.

• High Court (Administrative Court): The claimant’s earlier extradition appeal was dismissed by the Divisional Court in [2006] EWHC 2927 (Admin). The present judicial review claim was then granted, and the Secretary of State’s later decision was quashed.