Michael Lomas v Republic of South Africa (No 3)

In an extradition human-rights appeal, the court must assess the evidence through the legal prism of Extradition Act 2003 section 91 and Article 3. Fitness to fly is not a freestanding issue. The question is whether the proposed transfer or detention gives rise to an arguable case of oppression, or substantial grounds for a real risk of inhuman or degrading treatment.

Medical evidence must be assessed with the practical arrangements offered by the requesting state, including medical escorts, mobility assistance, healthcare, hospital referral and the management of deterioration. Where those precautions adequately address the identified risks, and the evidence does not reasonably support a real risk of significant and permanent worsening of health, permission to appeal should be refused.

The appellant had previously challenged his extradition to South Africa on Article 3 and section 91 grounds. In the First Judgment, the court rejected arguable complaints concerning his physical and mental health, suicide risk, alleged solitary confinement and health deterioration. In the Second and Third Judgments, the court permitted reopening after it became clear that fitness to fly was a matter for the court, but found no arguable ground based on that issue.

This subsequent human-rights appeal relied on a spinal operation, continuing residential care, mobility difficulties, a possible diverticulitis flare, and updated medical evidence. The central questions were whether the proposed transfer or post-transfer detention would be oppressive under section 91, or would expose the appellant to a real risk of treatment contrary to Article 3.

1. Outcome. The application for permission to appeal was dismissed. The evidence did not cross the arguability threshold under section 91 or Article 3, and there was no proper basis for a section 91(2) adjournment or for seeking further specific assurances.
2. Applicable approach. The court’s function was not a freestanding assessment of fitness to fly. It was required to apply a rigorous, pragmatic and circumspect evaluation of the evidence through the legal prism of oppression under section 91 and the Article 3 threshold.
3. Transfer. The proposed arrangements included a direct flight, an accompanying medical doctor, an onboard wheelchair and assistance with movement, toilet use and washing. Those arrangements addressed the appellant’s inability to use his Zimmer frame on the aircraft. The evidence did not establish a high risk of serious injury during transfer. The inability to adopt a brace position was not shown to create such a risk, and there was no evidence that the possible diverticulitis flare would cause severe pain or an unmanageable emergency during the flight.
4. Post-transfer care. The assurances and medical evidence established access to nursing staff, health assessment on admission, hospital referral, physiotherapy and emergency specialist treatment. The appellant’s current care was care-home assistance with washing, dressing and falls, rather than evidence of a need for continuous nursing care. The evidence did not reasonably support the proposition that extradition would prevent recovery from surgery or cause long-term and irreversible harm.
5. Suicidal ideation was not relied on, recognising the specific legal framework applicable to that issue. Overall, the proposed precautions were sufficient and neither the transfer nor the post-transfer arrangements arguably created oppression or a real risk of inhuman or degrading treatment.

• High Court (Administrative Court): In the First Judgment, the court rejected the original Article 3 and section 91 grounds. In the Second and Third Judgments, permission was given to reopen the appeal because fitness to fly was a question for the court, but no arguable ground was identified. In the present judgment, the subsequent appeal application was dismissed.