Michael Turner v Ireland

Fresh evidence on an extradition appeal is admissible only where it was unavailable at the extradition hearing despite reasonable diligence and would have been decisive. A party cannot rely on evidence that could have been obtained, or on a tactical decision not to seek an adjournment before the district judge.

For oppression under section 25 of the Extradition Act 2003, the evidence must establish a sufficiently substantial suicide risk, the relevant mental condition must remove the person’s capacity to resist the impulse, and the risk must remain inadequately controlled despite appropriate protective measures in the requesting state. In an EU requesting state, adequate protective arrangements are ordinarily presumed absent strong evidence to the contrary.

The appellant appealed against a district judge’s order for his extradition to Ireland on allegations arising from a threat and two post-office robberies. Before the district judge he relied on alleged risks under articles 2 and 3 of the ECHR and on article 8 family and personal life rights. He did not pursue a mental-health ground under section 25 of the Extradition Act 2003, despite an earlier adjournment having been granted to obtain psychiatric evidence.

On appeal, he sought to rely on a psychiatric report and argued that it established oppression under section 25 or required a different article 8 balance. The central issues were whether the report was admissible as fresh evidence and, if admitted, whether it required discharge.

1. Fresh evidence. The application to adduce the psychiatric report was refused. Under Hungary v Fenyvesi, evidence is unavailable only if it did not exist or could not have been obtained with reasonable diligence. The appellant had not shown that a report could not have been obtained before the extradition hearing. Once the expert was instructed, a short adjournment should have been sought before the district judge. The appellant’s decision to proceed without the report was a tactical choice and did not justify using the appeal process to repair the omission.

2. The failure to disclose accurately the date on which legal aid was granted, and the failure to tell the district judge and the High Court that the appellant had instructed his lawyers not to seek an adjournment, were materially misleading. They were inconsistent with the duty of candour and the lawyers’ professional obligations to the court.

3. Section 25. Applying Turner v Government of the United States of America, the court must make an overall judgment. A high threshold applies. The evidence must show a substantial risk of suicide, sufficiently great that the person would succeed whatever steps were taken, and the mental condition must remove the capacity to resist the impulse. The adequacy of protective arrangements in the requesting state must also be assessed.

4. Wolkowicz establishes a three-stage approach: protection while detained in the United Kingdom; arrangements during transfer; and protection after reception in the requesting state. In the European Union, the receiving state is ordinarily presumed to discharge its responsibilities unless strong evidence rebuts that presumption. The report did not provide adequate objective evidence to rebut it.

5. The report was materially deficient. It lacked adequate supporting data, did not address relevant medical and prison records, did not establish the required level of suicide risk, and did not state that the appellant’s mental condition removed his capacity to resist the impulse. Its reference to both planned and impulsive suicide was unexplained and ambiguous. The section 25 ground therefore failed.

6. The article 8 challenge also failed. The appellant accepted that, without the new report, the district judge’s Celinski balance could not properly be challenged. The report could not conceivably have altered that balance so as to require discharge. The appeal was dismissed.

• High Court (Administrative Court): appeal against the district judge’s extradition order dismissed; application to adduce fresh evidence refused.
• District Judge Griffiths: on 24 August 2023 ordered extradition to Ireland and found no bar under articles 2, 3 or 8 of the ECHR and no disproportionality under section 21A of the Extradition Act 2003.