UK: Shrien Dewani: A Guideline Case On Extradition And Mental Health?

Last Updated: 8 March 2011
Article by Julian Blake

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, Mr Dewani 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 [2009] 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. In Jaoud Sbar v The Court of Bologna [2010] EWHC 1184 (Admin), Mr Justice Foskett noted the comments made by District Judge Riddle in the original extradition proceedings (at para 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. In Jan Rot v District Court of Lublin, Poland [2010] 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:

(i) the public interest in extradition

(ii) the capacity of the requesting state to provide treatment

(iii) 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?

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.