Michael Lomas v Republic of South Africa (No 4)

In an extradition case, a subsequent human-rights appeal may be treated as a dual application where the statutory human-rights route does not encompass every ground relied upon. A physical-health argument that merely re-runs an issue already decided, without evidence capable of meeting the high thresholds under Article 3 or section 91 of the Extradition Act 2003, should be dismissed.

Where oppression is alleged by reference to suicide risk, the court must consider whether, despite all appropriate measures, the risk of suicide arising from a mental condition removing the capacity to resist the impulse is sufficiently great. The assessment must address the connection with extradition, voluntariness, and arrangements before transfer and in the receiving state.

The appellant had previously brought applications concerning his extradition to South Africa. Earlier judgments rejected arguable grounds based on physical and mental health, fitness to fly, and alleged oppression. He made a further application under sections 108(5)–(8) of the Extradition Act 2003, relying on changed circumstances and new evidence concerning mental health, suicide risk, physical health and fitness to fly.

The court treated the application as a dual application under section 108 and CrimPR 50.27, because section 91 was not a section 108 human-rights ground. The physical-health and fitness-to-fly issue was whether the new material raised an arguable breach of Article 3 or section 91. The mental-health issue was whether the new evidence justified a rolled-up hearing on oppression arising from suicide risk.

1. Disposition. The application based on physical health and fitness to fly was dismissed. The further material substantially re-ran the issue addressed in the previous judgment. The evidence did not arguably cross the high thresholds under Article 3 or section 91 of the Extradition Act 2003, including in relation to the proposed nine-hour flight and Stage 3 medical care.
2. The application was directed to proceed as a dual application under section 108(5)–(8) of the Extradition Act 2003 and CrimPR 50.27. Section 91 was not a section 108 human-rights ground, by reason of section 108(8).
3. In relation to mental health and suicide risk, the court directed a one-day rolled-up hearing. It did not decide whether the new evidence satisfied the oppression threshold. The questions for determination included whether the risk arose by reason of extradition or independently of it, whether suicide would be a voluntary act, whether appropriate steps had been identified, and whether the risk remained sufficiently high despite those steps.
4. The court adopted the formulation derived from Turner v USA [2012] EWHC 2426 (Admin), endorsed in Fletcher v India [2021] EWHC 610 (Admin) and discussed in Modi v India [2022] EWHC 2829 (Admin). The issue was whether, whatever measures were taken, the risk of suicide caused by a mental condition removing the capacity to resist the impulse was sufficiently great to amount to oppression.
5. The assessment of appropriate measures had to include arrangements in the United Kingdom before removal and arrangements for transfer and detention in South Africa. The court noted the distinction between the three extradition stages: pre-transfer, transfer and post-transfer.

1. High Court (Administrative Court): Earlier applications and judgments concerned permission to appeal, reopening the appeal, and subsequent human-rights appeals. In the present judgment, the physical-health and fitness-to-fly application was dismissed, while a rolled-up hearing was directed on mental health and suicide risk.