Government of the Republic of South Africa v Shrien Dewani
| Jurisdiction | England & Wales |
| Judge | Lord Chief Justice of England and Wales |
| Judgment Date | 31 January 2014 |
| Neutral Citation | [2014] EWHC 153 (Admin) |
| Docket Number | Case No: CO/9046/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 January 2014 |
[2014] EWHC 153 (Admin)
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Thomas of Cwmgiedd)
Mr Justice Ouseley
and
Mr Justice Blake
Case No: CO/9046/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Clare Montgomery QC and Mark Summers (instructed by Corker Binning) for the Appellant
Hugo Keith QC and Ben Watson (instructed by CPS) for the Respondent
This is the judgment of the Court to which we have all contributed
(a) The murder of the appellant's wife, Anni Hindocha
On 29 October 2010 the appellant married Anni Hindocha. They went to South Africa on honeymoon. On the evening of 13 November 2010, Anni was murdered with a single gunshot wound to the head.
On 10 January 2011 the Respondent (the Government) sought the extradition of the appellant so that he could be tried for the murder of Anni Hindocha.
(b) The proceedings in 2011
On 10 August 2011 the Senior District Judge heard evidence and submissions at the extradition hearing. It was clear that the appellant suffered from Post Traumatic Stress Disorder (PTSD) and a depressive illness. He was unfit at that time to stand trial. The Senior District Judge dismissed all the objections to his extradition and sent the case to the Secretary of State. On 28 September 2011 the Secretary of State ordered the appellant's extradition. An appeal was made to this court by those acting on behalf of the appellant on two issues:
i) Whether the appellant's mental condition and the attendant risk of suicide were such that he should not be extradited.
ii) Whether the prison conditions which he would experience in South Africa were such that it would be a breach of Articles 2 and 3 of the European Convention on Human Rights (ECHR) to extradite him.
This court held in a judgment handed down on 30 March 2012, [2012] EWHC 842 (Admin), that, in the light of the undertakings given by the Government of South Africa, there would be no violation of Articles 2 and 3 by reason of the prison conditions in South Africa. However in the light of his medical condition the court concluded that it would be unjust and oppressive to order his extradition by reason of the provisions of s.91 of the Extradition Act 2003 (the 2003 Act). That section provides:
Physical or mental condition
(1) This section applies if at any time in the extradition hearing it appears to the judge that the condition in subsection (2) is satisfied.
(2) The condition is that the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him.
(3) The judge must —
(a) order the person's discharge, or
(b) adjourn the extradition hearing until it appears to him that the condition in subsection (2) is no longer satisfied.
The court held that the Senior District Judge should have exercised his powers under s.91(3)(b) of the 2003 Act to adjourn the extradition hearing. In the light of the court's conclusion on s.91, the court did not determine what the position would be if at a subsequent stage the appellant still remained unfit to plead or stand trial (see paragraph 85 of the judgment).
Under s.104 of the 2003 Act, the powers of the court are very limited as the court can only:
(a) allow the appeal;
(b) direct the judge to decide again a question (or questions) which he decided at the extradition hearing;
(c) dismiss the appeal
We therefore directed the judge to decide the question under s.91 again.
(c) The further proceedings
The appellant remained in detention under s.3 of the Mental Health Act first at the Fromeside Clinic and then at Blaise View. The move to Blaise View and a change of medication had some impact on his mental condition.
The extradition proceedings resumed before the Senior District Judge in May and June 2013.
(d) The medical evidence
The Senior District Judge heard further evidence from Professor Nigel Eastman (who was instructed on behalf of the appellant) and Dr Ian Cumming (who was instructed on behalf of the Government of South Africa).
They were agreed that the appellant continued to suffer from PTSD (Professor Eastman regarding it as severe and Dr Cumming regarding it as moderate/severe) and from a moderate to severe depressive illness; that there was a real risk of self-harm and suicide, but it was not immediate; that he was unfit to plead under English law; if extradited at that time, it was highly likely that there would be the need for a fitness to plead process in South Africa. Neither expected a full recovery from his disorders; any improvement was likely to be extremely slow and the end point was uncertain. Extradition would worsen his symptoms, but this could be managed during travel and in South Africa.
Professor Eastman said in his evidence that he believed that the appellant was a long way from being fit to plead. At the time the appellant could not, in his opinion, instruct counsel or solicitors or follow the course of the proceedings; any attempt to give an account of what had happened to his lawyers or at trial would enhance his PTSD. He considered that the prospects for achieving fitness to plead were very poor if the appellant was extradited immediately, but improvements would be maximised by continuation of treatment in the UK for a further 6 months. If there was no improvement in 6 months, then he considered that there would be no advantage in further delay. His view was that if the appellant had not improved in 6 months, then the prognosis was very poor, though he added that things could happen in South Africa which he could not predict. If the appellant went to South Africa and did not improve, he was at risk of being chronically severely ill and chronically unfit to plead.
Dr Cumming in his evidence considered that the extradition proceedings were a factor helping to maintain the appellant's illness. Delaying extradition would not, in his opinion, help. There were advantages in progressing extradition and a trial. It was less likely that he would recover if he remained in the UK. Although the appellant understood the charge against him, he was unfit to stand trial and would remain so for some time at least. The main issue as to his fitness for trial was his hyperacusis and problems with concentration; the position was more marginal than before. He was not willing to prejudge the outcome of a fitness to plead process.
(e) The decision of the Senior District Judge
On 24 July 2013 he handed down a judgment in which he concluded:
i) Dr Cumming's report showed that the facilities at Valkenberg Hospital were sufficient to treat the appellant's illnesses and afford him a good quality of care.
ii) If the appellant was extradited, he would be either granted bail or remanded to Valkenberg Hospital; there was no doubt that he would be well cared for there and have his needs met.
iii) If the appellant was found unfit to plead and became a state patient in South Africa, his case would be kept under review.
iv) It was not possible to decide which of the medical experts was right as to the prognosis on fitness to plead. The arguments were finely balanced.
"So the evidential position is that extradition now may mean that an opportunity for recovery is missed. It may mean that recovery is simply set back temporarily. It may mean that there are advantages in pressing on with extradition now rather than delaying any further.
v) In summary:
"There has been a recovery but it has been slow. It may be a long time before Mr Dewani is fit to plead, but he may be close to that point. It is not impossible that if returned now, then after a reasonable period of further treatment and assessment he will be found fit to plead and a trial can take place. The evidence is that Mr Dewani will receive the care he needs in South Africa… There remains a real risk of suicide, but also confidence that in South Africa, as here, there are systems in place to try to minimise that risk. Mr Dewani remains seriously ill, but the prognosis is uncertain. Although the evidence is that Mr Dewani is unfit to plead now, he may or may not become fit to plead in the foreseeable future. It is far from certain that he will recover more quickly if he remains here, and there is some evidence that delaying extradition may make the clinical toll worse so there are some advantages in moving on…. Balancing the evidence that has been put before me, I find that the condition in s.91 (2) of the Extradition Act no longer remains satisfied."
In the period between that hearing and the hearing before us, the medical condition of the appellant was unchanged.
(f) The procedure before the Divisional Court
The powers of the Court to decide what should happen after the hearing of the appeal are highly restricted under the 2003 Act; this court does not have its usual power to do what is in the interests of justice. The powers are set out in s.104 of the 2003 Act. Under s.104(7), if after the further hearing directed by the court, the judge comes to the same conclusion as he did at the original extradition hearing, the appeal must be taken to have been dismissed by a decision of the High Court.
An application was made to this court on behalf of the appellant therefore to certify points of law of general public importance for the purposes of an application for leave to appeal to the Supreme Court from the decision in 2012 and to re-open the appeal under the provisions of CPR 52.17. There was...
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