Ulas Mamuk v Malatya Chief Prosecutors Office, The Republic of Turkey

On a renewed application for permission to appeal in extradition proceedings, permission should be refused where the proposed ground has no realistic prospect of success. Mental-health deterioration does not establish oppression or Article 8 disproportionality where the decision-maker has evaluated the evidence prospectively and is entitled to rely on identified custodial mental-health services equivalent in substance to those available domestically. A broad challenge based on ethnicity, religion or political opinion likewise requires a realistic evidential basis that the statutory bar is engaged.

Where permission has already been granted on an issue, the court may permit a closely related alternative statutory characterisation of the same essential point. That limited expansion does not amount to reopening the appeal on a materially different ground.

The appellant was convicted in Turkey in 2007 of aiding and abetting the PKK and was sentenced to six years and three months’ imprisonment. The District Judge rejected nine proposed grounds resisting extradition. Johnson J refused permission on the papers but granted limited permission on issues concerning alleged unfairness in the original trial and its consequences under Articles 5 and 6 and section 81(a) of the Extradition Act 2003.

At the renewed hearing, the appellant abandoned the Article 3 and abuse-of-process grounds. He pursued challenges based on mental-health deterioration, section 81(b), and the existing permission issues. The central questions were whether those grounds had a realistic prospect of success and whether the same alleged discriminatory unfairness could also be characterised under section 81(b).

1. Outcome. The renewed application for permission to appeal was dismissed except that permission was granted on a narrowly defined aspect of section 81(b) of the Extradition Act 2003. There was no order as to costs, subject to detailed assessment of the appellant’s publicly funded costs.
2. Mental health. The evidence of PTSD, depression, previous ill-treatment and possible deterioration did not give the grounds a realistic prospect of success. For the purposes of section 91, the District Judge was entitled to treat the availability at Yalvac Prison of mental-health services equivalent in substance to those available in a UK prison as addressing the prospective risk of deterioration. The same reasoning could be relied on in assessing Article 8 proportionality. Current symptoms not being mitigated in UK custody did not determine the future position after extradition.
3. Section 81(b). The District Judge had carefully evaluated the expert evidence concerning Alevi Kurds, Kurdish identity, political opinions, faith and possible future treatment. The conclusion that there were no reasonable grounds, or serious possibility, of targeting at the prison by reason of those characteristics was not arguably irrational or wrong. The wider section 81(b) ground therefore had no realistic prospect of success.
4. Narrow alternative characterisation. The issue of alleged planted evidence and the inability to cross-examine searching officers was already within the substantive appeal under Article 5 or 6 and section 81(a). It was reasonably arguable that, if the conviction resulted from a flagrantly unfair discriminatory trial, the punishment or detention imposed after conviction might also engage section 81(b). Permission was accordingly extended only to that alternative analysis of the same issue.

• District Judge, Westminster Magistrates’ Court: rejected the appellant’s grounds resisting extradition.
• Johnson J: refused permission on the papers but granted limited permission on issues concerning the alleged unfairness of the Turkish trial and its consequences under Articles 5 and 6 and section 81(a) of the Extradition Act 2003.
• High Court (Administrative Court): refused the renewed application on the maintained grounds, subject to granting narrowly expanded permission on the alternative section 81(b) characterisation.