India, The Government of v Ashley

Under section 91 of the Extradition Act 2003, extradition is unjust or oppressive where the requested person is unfit to plead or participate in a trial and is unlikely to regain that fitness within a reasonably foreseeable period. In that event, the judge must discharge the person rather than extradite him and leave the requesting state to reconsider his fitness. The appellate court will not interfere with a district judge’s assessment of expert evidence merely because another judge might have attached different weight to particular matters. A later undertaking concerning possible return after extradition does not displace the statutory duty to discharge where permanent or effectively permanent unfitness is established.

The Government of India appealed against a decision of District Judge Purdy dated 8 May 2014, which discharged Martin Ashley under section 91 of the Extradition Act 2003. Ashley faced extradition to India for alleged sexual offences against children. The district judge rejected challenges based on the prima facie case, delay and prison conditions, but accepted evidence that Ashley suffered serious dementia, lacked capacity to participate meaningfully in a trial and was unlikely to recover sufficiently.

The appeal challenged the weight and reliability of the psychological evidence, the expert’s qualifications and the conclusion that extradition would be unjust or oppressive. The court also considered whether a later undertaking to return Ashley to the United Kingdom if he were found unfit in India affected the section 91 decision.

1. Appeal dismissed. The district judge was entitled to accept Ms Atterton’s evidence that the respondent had severe functional impairment affecting comprehension, memory, communication and everyday functioning. Her expertise as a neuropsychologist enabled her to give evidence about the respondent’s functional deficit and prognosis, even though she was not a medical practitioner or psychiatrist. The district judge had heard and assessed her evidence under cross-examination and was entitled to find it compelling (paras [31]–[41]).
2. The criticisms concerning the manner of instruction, absence of notes, inability to recall the assessment date, possible exaggeration and limited medical evidence were matters of weight. They had been raised before the district judge, who was best placed to assess them. The Government had been given a fair opportunity to obtain its own examination and evidence but had declined to do so. The appellate court therefore had no objective basis to depart from the factual findings (paras [33], [36]–[39], [43], [45]).
3. Section 91 is satisfied where the requested person’s mental condition makes extradition unjust or oppressive because he is unfit to plead or conduct a trial and there is no likelihood of that unfitness relenting within a reasonable time. The statutory language in section 91(3) is imperative: the judge must discharge the person or adjourn until the condition no longer applies. Where unfitness is effectively permanent, discharge is the appropriate course, rather than extradition followed by reconsideration in the requesting state (para [42]).
4. The approach in Dewani No 1 and Dewani No 2 supported the importance of bringing accused persons to trial and the relevance of fitness, health, age and likely delay. Dewani No 2 was distinguishable because the relevant mental state there was not considered permanent. The Government’s later undertaking to return the respondent did not materially assist its appeal (paras [28], [42]–[44]).
5. The appeal was dismissed. The respondent was entitled to an order for assessment of his legally aided costs (paras [44], [47]–[48]).

1. High Court (Administrative Court) — The Divisional Court dismissed the Government of India’s appeal against District Judge Purdy’s decision of 8 May 2014 to discharge the respondent under section 91 of the Extradition Act 2003. The court held that the district judge was entitled to rely on the psychological evidence and had not erred in finding extradition unjust and oppressive.