Shrien Dewani: A guideline case on Extradition and Mental Health?
Shrien Dewani, the man accused of arranging for the murder of his wife during a South African honeymoon, is said to be suffering from Post Traumatic Stress Disorder and there are unconfirmed reports of a suicide attempt. He had been unable to attend a court hearing earlier this month and has recently been treated in the Bristol Royal Infirmary. According to his spokesman (a position seemingly essential in today’s high-profile extradition cases), Max Clifford, “When he comes out of hospital he is probably going to have 24-hour nursing.”
Unlike many cases that come before the City of Westminster Magistrates’ Court, MrDewani appears to have some powerful arguments against extradition – a publicity seeking Director of Public Prosecutions; a country wishing to revive a struggling tourist industry; a confession from a co-accused arising in questionable circumstances. But what role will his fragile mental state play in extradition proceedings? This article will explore the Administrative Court’s approach to cases where mental health is pursued as a bar to extradition. It will highlight the various different tests to overcome and the significant difficulties posed in advising a client suffering from mental health concerns.
Opening the floodgates: Jansons v Latvia
In Jansons v Latvia  EWHC 1845 (Admin), the appellant’s extradition on a Category 1 European Arrest Warrant was ordered by the then Senior District Judge Timothy Workman. The following day, the appellant tried to commit suicide in Wormwood Scrubs Prison. Not only did he try, but the evidence he submitted showed that he very nearly succeeded. The appellant had hanged himself in his cell and was found with no pulse. Following resuscitation, he spent ten days in intensive care receiving continuous ventilation before being transferred to a High Dependency Unit in Charing Cross Hospital. He was only admitted to the health care centre of the prison eighteen days after the suicide attempt.
On appeal to the High Court the defence relied on uncontested psychiatric evidence which stated that, if he were extradited to Latvia, Mr Jansons would commit suicide. The Prosecution did not contest the psychiatric evidence because the requesting country had confirmed that it would have appropriate medical facilities available. In short, if he was not granted bail in Latvia, he would receive similar treatment to that in Wormwood Scrubs. The argument focussed on Sections 21 and 25 of the Extradition Act 2003. Section 21 of the 2003 Act (or Section 87 in the case of a Part 2 Warrant) requires a judge at an extradition hearing to decide whether the person’s extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998. In this case, the argument rested on whether it would infringe his Article 3 rights (inhuman or degrading treatment) and Article 8 rights (right to private life). If the judge decides that extradition would not be so compatible, he must order his discharge.
Section 25 (or Section 91 in the case of a Part 2 Warrant) applies if the person’s physical or mental condition is such that it would be unjust or oppressive to extradite him. If so, the judge must order his discharge or adjourn the hearing to see if the condition improves. In giving Judgment on the argument under Section 25, Sir Anthony May, President of the Queen’s Bench Division, held (at paragraph 29): “It would, in my judgment, be oppressive to order his return when there is, on any view on the evidence, such a substantial risk that he will commit suicide. It is not as if this is an appellant who is threatening to commit suicide without any history of having tried to do so. Not only is he threatening that he will commit suicide and the doctor believes him but he has in fact, for the same reason, attempted to commit suicide in Wormwood Scrubs Prison and very nearly succeeded in doing so.”
The Court similarly found there to be an infringement of Article 8, embarking upon a proportionality exercise – weighing up the seriousness of the offences, the need to honour international treaties and the finding that the Latvian authorities will take all reasonable steps to protect the appellant against the doctor’s certainty that the appellant will commit suicide. In the circumstances, the Court did not consider it necessary to determine the Article 3 argument.
The effect of Jansons: blood filled cells?
The Judgment in Jansons resulted in an increase in suicide cases before the courts. InJaoud Sbar v The Court of Bologna  EWHC 1184 (Admin), Mr Justice Foskett noted the comments made by District Judge Riddle in the original extradition proceedings (atpara 13): “In his written decision, the District Judge mentioned a concern shared by several of [his] colleagues at an apparent increase in the number of extradition cases when the potential for suicide is argued”.
The court warned that there was a need for circumspection in evaluating the evidence in such cases, in case there was a perception that it is an easy way to avoid extradition. In Jaoud Sbar, the medical evidence was used to argue that the appellant was “at significant risk of self-harm and potentially suicidal”. The appellant had made several attempts at suicide – He had slit his wrist; cut himself with a razor blade; swallowed razor blades; refused food for four days; and attempted to hang himself. It was argued on behalf of the appellant that his history of self harm and suicide attempts, together with the psychiatric report show that, although a specific psychiatric disorder could not be identified, there was a “significant risk” which related to his fears of extradition.
It was argued on behalf of the Judicial Authority that the psychiatric report fell short of the circumstances in Jansons, where the appellant suffered from depression and an emotionally unstable personality disorder which made it more likely that he would attempt suicide. Jansons had a long history of self harm and had made a very serious attempt at ending his own life. The court held that, whist making comparisons to Jansons does not necessarily afford an answer to where on the spectrum of seriousness a case comes, it could be regarded as a benchmark by which to judge other cases. In holding that this case was a “lower risk category” than Jansons, the Administrative Court dismissed Mr Sbar’s appeal. One month later, the Administrative Court was again presented with a suicide case. InJan Rot v District Court of Lublin, Poland  EWHC 1820 (Admin) the Judicial Authority argued that the facts in Jansons – uncontradicted evidence that the requested person who has made a serious attempt to kill himself would kill himself if extradited – sets it aside from the majority of suicide cases.
In Rot, the Appellant had given evidence that he had attempted suicide in two circumstances in Poland, the first due to financial stress when at liberty and the second when subjected to abuse in prison. The second of these was disputed by the Judicial Authority. In addition, there were three incidents at HMP Wandsworth. In one case he was found suspended by a piece of clothing, said to be frustrated by his inability to contact his family. In another, he attempted to strangle himself with bed string, because he had been denied a telephone call and medication. The third suicide attempt occurred following the extradition hearing and involved an attempt to hang himself from landing bars and later placing another ligature around his neck. The Psychiatrtic report concluded that his “risk of further events of attempted suicide would increase were he to be extradited to Poland”
In giving Judgment and dismissing the appeal, Mr Justice Mitting held (at para 13): “The question must therefore be addressed and answered in such a case: would the mental condition of the person to be extradited make it oppressive to extradite him? Logically, the answer to that question in a suicide risk case must be no unless the mental condition of the person is such as to remove his capacity to resist the impulse to commit suicide, otherwise it will not be his mental condition but his own voluntary act which puts him at risk of dying, and therefore may make it oppressive to extradite him. Untidy though it may be, and while Jansons remains good authority, the question must be approached in a somewhat less logical manner. When, as in Jansons , there is uncontradicted evidence that an individual who has made a serious attempt to kill himself will kill himself if extradited, it may be right to hold that it would be oppressive to extradite him. Anything less will not do.”
The decision in Jaoud Sbar and Jan Rot has left practitioners in a difficult position. How is it possible to advise a client whose instructions are that they would rather commit suicide than be extradited? It seems that there must be more than just a significant risk. Must the client be informed that he must almost succeed at committing suicide before the court will discharge him? Should he be advised that it is not the number of times that you attempt suicide that is relevant but how close to death you achieve before being revived?
A new test: Wrobel v Poland
The as yet unreported case of Wrobel v Poland [Queen’s Bench Division, Administrative Court, 09 February 2011] may assist in this regard.
In a move away from the decision in Rot, the Court held that the correct test under Section 25 of the 2003 Act was not that there had to be evidence that a person would kill himself and that nothing less would suffice. The reasoning behind this decision was the very sensible finding that a psychiatrist could not conclude that a person would certainly commit suicide. All that a psychiatrist could do was to say that there was an extremely high risk that a person would attempt suicide and, if there had been previous suicide attempts, that there was a high risk the person would succeed in killing himself the next time. In addition, the Court held that a very high risk of suicide was doubtless capable of achieving the threshold required under Article 3. The test set out in Wrobel appears to be to consider whether there was a risk of suicide on the evidence and, in deciding whether it was sufficiently grave consider the following factors:
- the public interest in extradition
- the capacity of the requesting state to provide treatment
- whether or not such treatment is as good as that received in the UK
This test seems to take the courts back to the pre-Jansons position of weighing up all the relevant factors without a morose comparison of suicide techniques and their effectiveness. However, with such different findings in the Administrative Court in such a short space of time, the issue is crying out for further argument before the Supreme Court. Could Mr Dewani’s case resolve this issue once and for all?