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Mental Health Law Briefing 191- February 2013

Legal Issues in the Extradition of Patients with Mental Disorders

It is not uncommon for people who are subject to extradition proceedings to suffer symptoms associated with mental disorders, sometimes as a result of the pressures connected to their personal circumstances. Legal problems may arise when such patients are admitted to hospital either on a voluntary basis or under the compulsory powers in the Mental Health Act.

Once an extradition request has been made and the Secretary of State has issued the appropriate certificate, a judge may issue an arrest warrant. Following an arrest, a judge must fix a date for an extradition hearing.

If at any time during an extradition hearing it appears to the judge that the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him, the judge must either order the person's discharge, or adjourn the extradition hearing until the circumstances appear such that extradition would no longer be so unjust or oppressive.

A case that has recently attracted considerable media attention raised issues about whether a person’s mental health might prevent his extradition: Government of the Republic of South Africa v Dewani [2012] EWHC 842.

Mr Dewani (D), a British citizen, was arrested in the UK in connection with the murder of his wife during their honeymoon in South Africa. Although he had no history of mental illness, he began to exhibit symptoms of depression and PTSD. The South African government sought to extradite him under the Extradition Act 2003 on charges of murder, kidnapping, aggravated robbery and obstructing the administration of justice.

D contested extradition on the grounds that: (i) his extradition would breach his rights under Articles 2 and 3 of the European Convention on Human Rights (ECHR), that give protection to the individual’s right to life and against inhuman and degrading treatment, due to the prison conditions in South Africa and the risk of suicide due to his mental health problems; and (ii) his extradition was barred by the Extradition Act 2003. The senior district judge dismissed all of D’s submissions and D’s extradition was ordered. D appealed.

The two issues on appeal were: (1) whether D's mental condition and the attendant risk of suicide were such that he should not be extradited; and (2) if so, whether the prison conditions which he would experience in South Africa would breach Articles 2 and 3 ECHR.

The appeal was allowed, holding that the extradition hearing should have been adjourned under s.91 Extradition Act 2003 until it would no longer be so unjust or oppressive. The question of what was unjust or oppressive was fact sensitive, and required consideration of all the relevant circumstances, including the fact that extradition was ordinarily likely to cause stress and hardship; although neither of those was in itself sufficient.

In the instant case, on the basis of the psychiatric and medical evidence regarding the unusual combination of PTSD and depression to such a severe degree, extradition clearly presented a real and significant risk to D’s life. It was an exceptional case where the expert called on behalf of the government was of the view that extradition would jeopardise D’s treatment regime and prospects of recovery. Increasing the prospects and speed of recovery were in the interests of justice, as they would increase the prospects of a trial being held sooner rather than later.

Whilst such situations are fairly unusual, hospitals may find that careful advice is needed on the legal situation when
extradition issues arise in relation to patients suffering from mental disorders.

Anna Brown
anna.brown@rlb-law.com

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Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accept no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommend that appropriate legal advice be taken having regard to a client's own particular circumstances.