Michael Lomas v Republic of South Africa

There is no freestanding judicial function to determine whether a person is fit to fly for extradition. The Court must assess the proposed transfer through the statutory and Convention tests, principally oppression under section 91 of the Extradition Act 2003 and the real-risk threshold under Article 3 ECHR.

An expert opinion that a person is unfit to fly does not, without careful analysis, establish oppression or a real risk of inhuman or degrading treatment. The Court must examine precisely what risks the evidence identifies, the circumstances in which they may arise, and the practical safeguards available. Where the Court is seized of the case, it may adjourn for further information. Practical surrender arrangements are ordinarily made by the NCA, the requesting state and the airline.

The appellant was subject to a Part 2 extradition order to South Africa. In an earlier judgment, the Court refused permission to appeal on health-related grounds and concluded that no further direction was required concerning fitness to fly.

The appeal was later reopened under Crim PR 50.27, narrowly to reconsider fitness to fly and the effect of new medical evidence concerning cervical myelopathy, impaired balance, falls and possible spinal injury. The Home Secretary, the NCA and the requesting state took different positions about responsibility for assessing fitness to fly and arranging the transfer.

The Court therefore had to determine the proper institutional roles and whether the evidence gave rise to a reasonably arguable case under section 91 of the Extradition Act 2003 or Article 3 ECHR.

1. Outcome. Permission to appeal was refused on both section 91 and Article 3 grounds. There was no basis for a further adjournment or direction.
2. Applicable legal framework. Fitness to fly is not a freestanding issue for judicial determination. The Court must apply the legal prism of section 91, concerning whether extradition would be unjust or oppressive by reason of physical or mental condition, and Article 3 ECHR, concerning a real risk of inhuman or degrading treatment. The relevant threshold at this stage was reasonable arguability.
3. Institutional roles. In a Part 2 extradition the Home Secretary has no decision-making function under section 91 or Article 3. Human-rights questions are allocated to the courts through the statutory appeal and reopening mechanisms, including sections 103 and 108 of the Extradition Act 2003. The NCA, in conjunction with the requesting state and airline, is responsible for practical surrender arrangements.
4. Procedural routes. Fitness-to-fly issues may arise while the Court is seized of a case, after the Court has concluded its proceedings, or where no appeal has previously been pursued. Where the Court is seized of the case, it may adjourn for information needed to determine the issue fairly. A transfer is part of the second stage of extradition, during which appropriate arrangements must be made.
5. Application. The medical evidence identified risks associated with falling, turbulence, sudden movement and prolonged sitting, but did not establish a reasonably arguable real risk meeting either statutory or Convention threshold. The NCA’s proposed precautions included medical accompaniment, wheelchair assistance at departure and arrival, and transfer to a medical facility on arrival. Those arrangements adequately addressed the identified risks.
6. An expert’s view that a person is unfit to fly does not itself satisfy section 91 or Article 3. The evidence must be analysed in context, including the precise risks identified and what is said, or not said, about the circumstances in which they may occur.

The judgment concerned an application to reopen the appellant’s extradition appeal under Crim PR 50.27. The Court had previously refused permission to appeal in [2023] EWHC 388 (Admin), and later granted permission to reopen the appeal narrowly to reconsider fitness to fly in [2024] EWHC 637 (Admin). The reopened application was dismissed and permission to appeal was refused.