Michael Lomas v Republic of South Africa

A high threshold applies where mental illness and suicide risk are relied on to resist extradition. The court must assess the risk in the light of whatever steps are taken at the pre-transfer, transfer and receiving-state stages. Extradition is not oppressive where any suicide would be a voluntary act in the legal sense of being rational or thought-through. A depressive illness may cause suicidal thoughts without removing that voluntariness. In any event, effective safeguards and appropriate medical arrangements may reduce the risk below the level required to establish oppression or a breach of Article 3 ECHR.

The appellant challenged the refusal of permission to appeal against an extradition order to South Africa. He relied on section 91 of the Extradition Act 2003 and Article 3 ECHR, relying on serious physical and mental health conditions and a very high risk of suicide. Earlier applications concerning physical health, fitness to fly and mental health had been refused, but fresh psychiatric evidence led to a further rolled-up hearing. The issues were whether the appeal or application to reopen should proceed, whether the new evidence could have altered the extradition decision, and whether the safeguards proposed by South Africa were sufficient.

1. Applications dismissed. The application to reopen the grounds based on physical health was refused. The evidence concerning a quadriplegic prisoner in South Africa did not establish that the appellant would be unable to receive the care described in the respondent’s assurances.
2. Under section 91 of the Extradition Act 2003 and Article 3 ECHR, the relevant question is whether the risk of suicide, assessed in the light of whatever safeguards will be employed, is sufficiently great to make extradition oppressive or to create a real risk of prohibited treatment. The assessment includes arrangements in the United Kingdom, during transfer and in the receiving state.
3. Applying Turner and Modi, a suicide would not ordinarily make extradition oppressive if it would be voluntary in the sense of being rational and thought-through. The appellant’s suicidal thoughts were symptoms of depressive illness, but the evidence showed planning, consideration of methods and a significant degree of self-control. Any suicide or attempt would therefore be voluntary in the relevant legal sense.
4. Alternatively, the safeguards were adequate. The appellant would not receive advance notice of removal, would be searched and continuously supervised during transfer, and would be accompanied by a doctor with psychiatric training. In South Africa, risk assessment, modified accommodation, monitoring, medication and psychiatric support were available, with urgent hospital referral if required.
5. The fresh evidence would not have caused the District Judge to decide the extradition issues differently. The appeal was not necessary to avoid real injustice, and the circumstances were not exceptional for the purposes of section 108(5) or rule 50.27 of the Criminal Procedure Rules 1998. The applications were dismissed.

• High Court (Administrative Court): District Judge Sternberg ordered extradition on 15 December 2022, followed by the Secretary of State’s extradition order on 30 January 2023. Several subsequent applications for permission to appeal and to reopen were refused by Fordham J: [2024] EWH 388 (Admin), [2024] EWHC 637 (Admin), [2024] EWHC 731 (Admin), [2024] EWHC 1141 (Admin) and [2024] EWHC 1642 (Admin). The present applications were dismissed.