LMN v Government of Turkey

An extradition appeal may succeed where fresh evidence establishes substantial grounds for believing that the requested person faces a real risk of treatment contrary to Article 3. The assessment must address the individual circumstances of the case, including any recognised mental illness, the treatment required, the risk of suicide, and the practical availability of adequate healthcare in the receiving state. A general presumption that a Council of Europe state will comply with its human rights obligations may be rebutted by evidence of overcrowding, strained resources, inadequate medical provision and a failure to provide meaningful assurances or answers to the identified concerns. The court may decide the appeal on the evidence before it where remittal would serve no useful purpose.

The appellant challenged a District Judge’s decision that there were no bars to his extradition to Turkey to serve the balance of a sentence for importing MDMA. The District Judge sent the case to the Secretary of State, who ordered extradition under section 93(4) of the Extradition Act 2003. The appellant abandoned his section 81 ground but appealed on Articles 3 and 8 of the Convention. He sought to rely on additional evidence concerning his deteriorating mental health, prison overcrowding and healthcare in Turkey following the attempted coup in July 2016. The central issue was whether, despite the presumption that Turkey would comply with its Convention obligations, the appellant had shown a real risk of treatment reaching the Article 3 threshold.

1. The appeal was allowed. The order for extradition was quashed and the appellant was discharged.
2. Under section 104 of the Extradition Act 2003, fresh expert evidence was admissible because it did not exist at the extradition hearing. The appellant’s later statement about an alleged rape was excluded. It was available earlier, the appellant had chosen not to rely on it, and it would not have been decisive in any event.
3. The court applied the strict approach in Szombathely City Court v Fenyvesi [2009] EWHC 231 (Admin). Fresh evidence must either have been unavailable at the original hearing or genuinely unavailable despite reasonable diligence, and must have been capable of producing a different result requiring discharge.
4. Article 3 prohibited extradition where substantial grounds established a real risk of treatment reaching the minimum level of severity. The presumption that Turkey would protect prisoners’ Convention rights was not irrebuttable. The assessment was confined to the appellant’s individual circumstances, rather than the Turkish prison system generally. The court applied R (Ullah) v Special Immigration Adjudicator [2004] 2 AC 323.
5. The uncontradicted evidence established severe depressive illness, features of PTSD, a continuing need for medication and coordinated psychological care, and a high risk of suicide if extradited. Evidence of a substantial increase in the Turkish prison population and inadequate healthcare at the likely prison, including the absence of psychiatric staff, materially increased the risk that the appellant’s needs would not be met.
6. The Turkish Government had not answered the evidence concerning overcrowding and healthcare, had provided no relevant assurance, and had not enabled the expert inspection requested. In the circumstances, the presumption of compliance was rebutted. Failure to meet the appellant’s mental healthcare needs, taking account of the suicide risk, would attain the Article 3 threshold.
7. Article 8 could not provide an independent basis for success if the Article 3 challenge failed. In view of the Article 3 conclusion, it was unnecessary to interfere separately with the District Judge’s Article 8 balancing exercise. Remittal was inappropriate because the respondent had sufficient time to respond to the fresh evidence.

• High Court (Administrative Court): allowed the appeal against the District Judge’s decision, quashed the extradition order and ordered the appellant’s discharge.
• Westminster Magistrates’ Court: the District Judge found no bar to extradition and sent the case to the Secretary of State.
• Secretary of State: ordered extradition under section 93(4) of the Extradition Act 2003.