AC-2023-LON-002337 - [2025] EWHC 1985 (Admin)

Section 91 of the EA 20023 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 in respect of whom the Part 1 warrant is issued 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.”

Evidence concerning the Applicant’s suicide risk was presented by several expert witnesses. Professor Forrester, who diagnosed the Applicant with a depressive disorder, considered it to be of a moderate level currently. His view was that a custodial environment such as that described in the expert reports would likely cause depressive symptoms to develop or worsen, leading to a significant and high risk of self-harm and suicide.

Dr Grassian expressed concerns that the Applicant’s mental health might deteriorate due to the regime in a US prison, particularly if held in an SHU. His opinion of a “heightened risk of suicide” was contingent on a prolonged period in solitary confinement. Dr Grassian considered that solitary confinement would have a deleterious effect on the Applicant and that the conditions in an SHU as described to him would lead to a risk of suicide that the Applicant would not have the capacity to resist. In his oral evidence, Dr Grassian stated that the Applicant was “doing well” at HMP Wandsworth and would have no concerns about him being held in a comparable regime.

Professor Greenberg considered that if extradited, “there would be a substantial risk of completed suicide” and recognised that conditions of detention could further increase this risk. He noted that the Applicant was prone to exaggeration and embellishment. In January 2022, Professor Greenberg felt that the Applicant had a histrionic personality disorder and that his risk of suicide was low at that time and under those circumstances. However, he also posited that if extradition were to proceed, the Applicant’s mental state would likely deteriorate, exacerbating features of his personality disorder and potentially worsening depressive symptoms, leading to a likely loss of capacity to resist an impulse to commit suicide. Professor Greenberg accepted that the BOP responses regarding mental health treatment and suicide prevention measures sounded “pretty reasonable”. He also noted the Applicant was “very clear he would not kill himself in a violent way” but would stop eating.

Dr Picchioni assessed the Applicant and found that he presented a low clinical risk of suicide. He noted the Applicant's unreliability as a narrator and his adjustment to prison environments in Indonesia and London. Dr Picchioni considered the Applicant had a limited history of impulsiveness in relation to self-harm. He acknowledged that the Applicant’s ability to resist an impulse to commit suicide would reduce “to some degree” and probably temporarily upon arrival in the US. Dr Picchioni accepted that there would be an increase in suicide risk in solitary confinement, with the degree of increase heavily influenced by the actual conditions and the availability of distractions. He also noted that the Applicant had stated that he had never engaged in self-harm or suicidal behaviour and felt such behaviour was “wrong”.

A clinical and forensic psychologist, Dr Hayley Blackwood, who did not assess the Applicant directly but reviewed the other expert reports, pointed out that people with personality disorders are often at increased risk of suicide. She also agreed that the Applicant “evidences a number of mental illness-related suicide risks” aside from his personality disorder, including a depressive disorder. Dr Blackwood confirmed that inmates in BOP facilities receive a psychological assessment within 24 hours of arrival, which includes a consideration of suicide risk.

The SDJ made specific findings on the issue of the Applicant's mental health and suicide risk. The SDJ noted that only Professor Forrester diagnosed a depressive disorder, and even he considered it moderate. The SDJ had concerns about the reliability of the Applicant's self-reporting, echoing the views of Dr Picchioni and Professor Greenberg. The SDJ gave weight to the fact that the Applicant had managed in Indonesian prison and in a UK Category B prison without incident and had no significant history of self-harm or suicide attempts, concluding he was “not significantly unwell”. The SDJ favoured Dr Picchioni’s assessment that the Applicant posed a low clinical risk of suicide and had adjusted to previous periods of incarceration. The SDJ concluded that the only basis on which the Applicant indicated he would consider ending his life was by withdrawing food, which Professor Forrester agreed would be a “capacious decision”, implying the Applicant would have the capacity to resist such an act. The SDJ further reasoned that such a “slow burn” approach would allow prison staff ample time to intervene.

In considering whether extradition would be unjust or oppressive under section 91 of the 2003 Act due to a suicide risk, the SDJ referred to and was guided by the principles established in Turner v Government of the USA [2012] EWHC 2426 (Admin) and further considered in Modi v India [2022] EWHC 2829 (Admin) at [115-117]:

“115.

In the light of the submissions we received, it is necessary to address the interplay between Turner propositions (3), (5) and (6) as well as Mr Fitzgerald’s attack on proposition (4).

116.

There will be cases where the requested person’s medical condition is not severe enough, and the risk of suicide not high enough, to engage section 91 at all. In our view, the clause “whatever steps are taken” in propositions (3) and (5) are really addressing opposite sides of the coin. If the risk is too low, the meaning and effect of proposition (3) is that it is unnecessary to consider the adequacy of the preventative arrangements referred to under proposition (6) because the requested person’s case has already failed. In this context, therefore, “whatever steps are taken” in proposition (3) may be understood to mean, “ignoring any steps taken”. The primary submission of Ms Malcolm was, on our understanding, that the present case falls into this category. On the other hand, proposition (5) recognises that there may also be cases where the risk of suicide is so great that, whatever steps may be taken, they will not reduce the risk to an acceptable level. Examples of cases falling into this category are Jansons and, subject to the qualification we make below, Fletcher v Government of India [2021] EWHC 610 (Admin).

117.

Between these two poles there will be cases where the risk of suicide may be moderate or even high – too high to be discounted, but not so high that nothing can be done to address it that will render the risk acceptable. By risk of suicide we mean the risk that, in the absence of preventative measures, an attempt at suicide will be made and succeed. In such circumstances, the proposition (5) issue (level of risk) must be considered in conjunction with proposition (6) (steps taken to ameliorate the risk and reduce it to an acceptable level). In practice, most cases will fall into this category, which explains the emphasis in Wolkowicz on proposition (6). This reflects the practical realities including the fact that even in relatively weak cases it will be appropriate, out of an abundance of caution, to have regard to the system in the relevant prison.”

Thus, these principles require the court to form an overall judgment, apply a high threshold for finding oppression, assess the link between the mental condition and the risk of suicide, and consider whether the mental condition removes the capacity to resist the impulse to commit suicide. Importantly, the court must also consider whether there are appropriate arrangements in place in the receiving state to manage the person’s mental condition and the risk of suicide. The SDJ explicitly considered the suicide prevention programmes in the US, the availability of psychological assessment, and concluded that “the practice is in line with the policy”. The SDJ also noted the better statistical record of the US prison estate in suicide prevention compared to the UK.

The Applicant argued that it is necessary to reconsider how risk must be assessed in the light of the CJEU’s approach in EDL [2023] 4 WLR 57 which extended protection to those at real risk of “a serious, rapid, and irreversible decline” in health or a significant reduction in life expectancy, not just completed suicide. Following withdrawal from the European Union English courts may have regard to decisions of the CJEU but are not bound by them. More significantly perhaps the “unjust or oppressive” test in section 91 was not intended to reflect the European Framework Decision on the European Arrest Warrant, which EDL construes.

A Divisional Court has already ruled that section 91 should not be interpreted by reference to the Framework Directive and that “parliament intended its own test” for section 91, which is not referable to the Framework Decision or CJEU decisions (see Prancs v Latvia [2006] EWHC 2573 (Admin) and Dewani v Government of the Republic of South Africa [2012] EWHC 842 (Admin)).

The SDJ found that the Applicant was not seriously unwell and that there was no risk of a serious or permanent deterioration in his mental state. Any risk identified was likely to be temporary upon initial detention in the US. The SDJ was also provided with information on the conditions of detention and medical facilities in the US. Therefore, based on the SDJ's findings of fact, the threshold for triggering the EDL approach, requiring further information from the US authorities, was not met. The SDJ considered the expert evidence presented by both sides, including the risk of suicide and the measures in place to prevent it, and concluded that no oppression would arise.

The approach to seeking assurances in extradition cases has also been clarified in recent jurisprudence. As the Divisional Court observed in USA v Assange [2021] EWHC 3313, it is not correct to suggest that a requesting state must offer contingent assurances to cover every possible combination of outcomes, particularly when primary arguments against extradition fail. The Court observed [43] that “an assurance may be unnecessary depending on factual and evaluative findings made by the judge”.

Applying these principles to the present matter, the SDJ's detailed factual and evaluative findings, in my view, negated the necessity for further specific assurances. The SDJ had already determined that the Applicant was not seriously unwell, that the US prison system had adequate and robust mechanisms for suicide prevention and care, and that protective custody in an SHU would provide a reasonable level of protection without being inhuman or degrading.

Based on the evidence presented by the various experts and the detailed findings made by the SDJ, I am of the view that the SDJ dealt with the matter of the Applicant's suicide risk appropriately. The SDJ considered the opinions of all the psychiatric witnesses, weighed their evidence, and provided clear reasons for favouring the assessment of Dr Picchioni. The SDJ took into account the Applicant’s past behaviour, his presentation during the proceedings, and the evidence regarding mental health care and suicide prevention measures in the US prison system. The SDJ correctly applied the relevant domestic legal principles concerning suicide risk in extradition cases and made findings of fact that did not necessitate the application of the broader EDL test. The SDJ’s judgment demonstrates a careful and thorough consideration of the evidence relevant to the Applicant's mental health and the risk of suicide.

I conclude that the SDJ’s decision that there was no bar to extradition under section 91 was properly open to him.