Michael Lomas v Republic of South Africa & Anor (No 2)

Permission to reopen an extradition appeal may be granted under rule 50.27 where exceptional circumstances create a real risk of injustice, the issue has been raised promptly, procedural safeguards have been met, and no alternative effective remedy exists.

Reopening may be confined to a narrow issue, without reopening the appeal generally. The existence of an extant appeal displaces the non-extendable 28-day removal period under the Extradition Act 2003. Where serious uncertainty exists about fitness to fly, the court should ensure that the issue is addressed before extradition, even if responsibility for assessment has not yet been determined.

The appellant had previously been refused permission to appeal against an extradition decision in the first judgment, [2023] EWHC 388 (Admin). That judgment recorded medical evidence questioning his fitness to fly but declined to adjourn because no adjournment was sought and all counsel recognised that fitness to fly would be assessed before extradition.

Following further medical evidence and notification of an imminent flight to South Africa, the appellant applied urgently under rule 50.27 of the Criminal Procedure Rules for permission to reopen the appeal. The central issue was whether the appeal should be reopened narrowly so that fitness to fly, and the responsibility for addressing it, could be considered before removal.

1. Permission granted. The appeal was reopened pursuant to rule 50.27 for the narrow purpose of revisiting the fitness-to-fly issue and paragraph 15 of the first judgment. The Home Secretary was joined as a party, and the case was listed for further hearing.
2. The court identified exceptional circumstances and a real risk of injustice. Fitness to fly had been an existing concern supported by expert evidence, had been reinforced by further evidence, and had not yet been assessed by any relevant authority. The proposed removal was imminent, and the parties’ previous common position had ceased to provide a satisfactory basis for proceeding.
3. The court did not decide at this hearing whether fitness to fly was a matter for the court, the Home Secretary, the National Crime Agency, the airline, or another relevant authority. It held that the issue could not be left unaddressed before extradition, particularly if human-rights obligations were engaged.
4. The procedural safeguards in rule 50.27 were satisfied. The application was made in writing, promptly, on notice, and with an opportunity for the other parties to make representations. There was no alternative effective remedy.
5. The reopening displaced the non-extendable 28-day removal period under section 118 of the Extradition Act 2003, because an extant appeal again existed. The reopening was not general or open-ended: once fitness to fly had been satisfactorily addressed, the refusal of permission could be reinstated and extradition could proceed.

The judgment followed the court’s first judgment, [2023] EWHC 388 (Admin), which refused permission to appeal. The present judgment granted permission to reopen the appeal solely to revisit fitness to fly.