Michael Lomas v Republic of South Africa

Permission to appeal in an extradition case requires a reasonably arguable ground capable of demonstrating that the first-instance decision involved a wrong outcome. A health-based challenge must be assessed by reference to the totality and interrelationship of the requested person’s physical and mental conditions.

Existing assurances may be dynamic, requiring monitoring, treatment and referral as conditions develop. Fresh medical evidence does not justify permission or an adjournment where it does not arguably undermine the earlier findings. The assessment of suicide risk, custodial conditions and any fitness-to-fly issue must be based on the evidence as a whole.

The appellant, aged 76, was wanted for extradition to South Africa to face corruption charges. A District Judge sent the case to the Home Secretary, who ordered extradition.

The District Judge rejected arguments under articles 3 and 8 of the European Convention on Human Rights and section 91 of the Extradition Act 2003. Permission to appeal was refused on the papers. On renewal, the appellant relied on four headline points concerning the interaction between his physical and mental conditions, suicide risk, alleged de facto solitary confinement, and deterioration in his health. He also relied on putative fresh medical evidence and an assertion that he was unfit to fly.

The central issue was whether any of those matters disclosed a reasonably arguable ground capable of showing that the District Judge’s conclusions involved a wrong outcome.

1. Outcome. The application for permission to appeal was dismissed. Permission to adduce the putative fresh evidence was refused. There was no order as to costs.
2. Integrated health assessment. The District Judge had recorded the submission based on the combination of the appellant’s physical and mental conditions and had considered the evidence in the round. The references to separate physical and mental health sections did not show that their interrelationship had been ignored. The overall conclusion that the conditions could be treated and managed in custody disclosed no arguable error.
3. Mental health and suicide risk. The District Judge had expressly reminded himself of the approach in Turner v USA [2012] EWHC 2426 (Admin). He considered the alleged suicide attempts, the competing expert evidence and the arrangements for monitoring, treatment and prevention. His findings that the appellant’s condition was not presently so severe as to remove the impulse not to commit suicide, and that appropriate measures would be available, were not arguably unsustainable.
4. Custodial conditions. The evidence did not establish that the appellant would be confined without meaningful human contact. The District Judge had considered the number of prisoners, staff contact, time outside the cell, exercise, library access, talking therapies, telephone contact and healthcare. His conclusion that the conditions would not constitute solitary confinement was therefore not arguably irrational or unsupported.
5. Fresh medical evidence and assurances. Blackouts, frailty and falls had already been considered. The assurances concerning healthcare were dynamic rather than static and covered monitoring, treatment, hospital referral and specialist care. The new evidence did not arguably undermine the earlier findings. An adjournment to await possible spinal surgery was unnecessary.
6. Fitness to fly. One clinician’s opinion that the appellant was unfit to fly did not establish an arguable appeal. Fitness to fly, and any necessary adjustments, could be assessed before extradition. The circumstances did not require a further direction or adjournment.

1. District Judge. On 15 December 2022, District Judge Sternberg sent the extradition case to the Home Secretary after considering articles 3 and 8 of the European Convention on Human Rights and section 91 of the Extradition Act 2003.
2. Home Secretary. An extradition order was made on 30 January 2023.
3. High Court (Administrative Court). Permission to appeal was refused on the papers by Heather Williams J on 1 December 2023. Fordham J dismissed the renewed application, refused permission to adduce the putative fresh evidence and made no order as to costs.