CASE SUMMARY: Fletcher v Government of India [2021] EWHC 610 (Admin)

The High Court allowed an appeal by Ivor Fletcher against his extradition to India to serve a 10 year for possession of drugs in 2002, on the grounds that it would be oppressive by reason of the his mental condition, contrary to section 91 of the Extradition Act 2003 (‘the 2003 Act’). In so doing, the Court provided a useful review of the approach to be taken in oppression cases where the Requested Person is at risk of completed suicide and demonstrated the high adequacy threshold for assurances in these cases.

The appellant appealed against a decision of the District Judge on the single ground that the District Judge was wrong to conclude, under section 91(2) of the 2003 Act, that extradition would not be unjust or oppressive by reason of the appellant’s mental health.

Before the District Judge, the appellant relied on uncontested expert psychiatric evidence that he suffered from a recurrent depressive disorder, then moderate, and a history of moderate personality disorder. He had a history of self-harm, suicidal ideation and had made previous suicide attempts, the most recent in 2016. The District Judge, having regard to the time that had elapsed between the appellant’s last reported suicide attempt, his periods of successful independent living with the help of medication and the assurances provided by the Indian authorities, concluded that they understood their obligations to deal appropriately with his medical issues and that extradition would, therefore, neither be unjust nor oppressive.

The High Court had before it fresh evidence in the form of a supplemental report from the psychiatric expert which stated that the appellant’s recurrent depressive disorder was now severe and that his risk of completed suicide was “very high” and likely to increase in the event his appeal was unsuccessful. The appellant also relied on a supplemental report from a prison conditions expert, which said the assurances provided by the Indian authorities provided inadequate reassurance that the appellant’s risk of suicide could or would be appropriately managed.

The Court rehearsed the approach to be taken in cases concerning the application of section 91 in cases where there is a risk of suicide, as set out in Turner v Government of the United States [2012] EWHC 2426. It is necessary to assess first, whether the risk of suicide exceeds the high threshold for oppression; second, whether the person’s mental condition removes his capacity to resist the impulse to commit suicide; and finally, to assess the adequacy of preventive measures. The Court endorsed the position in Farookh v Germany [2020] EWHC 3143, which clarified that the question for the Court is whether, even if all appropriate measures are put in place in the Requesting State, the risk of completed suicide remains sufficiently great to result in a finding of oppression.

In the instant case, the Court held that the question of the risk of completed suicide is a matter for expert evaluation. Though several years had passed since the appellant’s last suicide attempt, the uncontested expert evidence placed him at a very high risk of completed suicide deriving from a mental disorder that removed his capacity to resist the impulse to commit suicide. In light of the satisfaction of the initial Turner criteria, the adequacy of the available preventive measures became critical.

The Court agreed with the expert’s conclusion that the details of the “safe barrack” in which the appellant would be held did not provide any assurance that the barrack does not contain ligature points that could be used in suicide attempts. Despite the fact the appellant had no history of using ligatures, the evidence of his determination to commit suicide required that the assurances address all realistic modes of achieving that end. The assurances were also deficient in that they provided insufficient detail in relation to the supervision arrangements in the “safe barrack” and the frequency of available psychiatric care to reassure the Court that the measures in place would significantly reduce the very high risk of completed suicide. Allowing the appeal, the Court noted that the evidence before it was quite different from that which had been before the District Judge.