The Government of Ghana v Gambrah & Anor

Under Extradition Act 2003, an assurance that a death sentence will not be carried out may remove the real risk of execution, but it does not necessarily make extradition compatible with Article 3. The court must assess the actual circumstances in which the requested person will be detained, including the uncertainty of his legal status, the absence of a formal substituted sentence, the conditions on death row and his personal circumstances. An indeterminate period on death row, dependent only on executive mercy and without judicial review or a clear prospect of release, may constitute inhuman or degrading treatment. The court must also evaluate medical evidence properly when deciding whether extradition would be oppressive under section 91.

Ghana appealed under section 105 of the Extradition Act 2003 against the District Judge’s decision to discharge Frank Gambrah under section 87(2). Ghana sought his extradition to stand trial for murder. Under Ghanaian law, conviction would ordinarily require a death sentence, but Ghana assured the United Kingdom that the sentence would not be carried out.

The District Judge accepted the assurance but held that extradition would breach Article 3 of the European Convention on Human Rights. Gambrah cross-appealed, arguing that his mental condition also made extradition unjust or oppressive under section 91. The central issues were whether the assurance removed the Article 3 objection, whether the proposed detention on death row would itself breach Article 3, and whether the evidence justified discharge under section 91.

1. Assurance and execution. The assurance given on behalf of Ghana was sufficiently specific and there was no evidential basis for rejecting it. The court therefore proceeded on the basis that Gambrah would not be executed. The possibility that the death sentence would be imposed, without more, did not itself bar extradition under Article 1 of Protocol No. 13 or Articles 2 and 3.
2. Article 3. The relevant question was the foreseeable effect of the proposed detention on Gambrah. He would face an indeterminate period on death row, with no formal commutation, no identified alternative sentence, no judicial process for considering mitigation or determining the appropriate period of imprisonment, and no clear explanation of when or how the limbo might end. Executive mercy did not equate this situation with a lawful, reducible life sentence.
3. The court applied the reasoning concerning the death-row phenomenon in Soering v United Kingdom [1989] 11 E.H.RR 439. The personal circumstances of the requested person were material. The undisputed psychiatric evidence showed a substantial risk of serious deterioration and suicide. The uncertainty surrounding Gambrah’s detention, combined with his mental condition and the inadequate evidence concerning psychiatric care, meant that extradition would expose him to inhuman or degrading treatment contrary to Article 3.
4. The District Judge had failed properly to engage with Dr Doku’s detailed evidence concerning the absence of psychiatric treatment in Ghanaian prisons and had inadequately explained why it preferred the evidence of a retired judge based on a short prison visit. Had it been necessary to decide the cross-appeal, extradition would have been oppressive under section 91.
5. The challenge to the admissibility of the witness statement identifying the vehicle registration failed. Section 84 imposed no formal statement-of-truth requirement. The statement was admissible subject to the District Judge considering the matters specified in section 84(3). The appeal was dismissed.

• High Court (Administrative Court): the Government of Ghana’s appeal under section 105 of the Extradition Act 2003 was dismissed. The District Judge’s discharge under section 87(2) therefore stood.