What are Section 25 and Section 91 Extradition Act 2003?

22 Jun 2021, 42 mins ago

What are Section 25 and Section 91 Extradition Act 2003?

Section 25 and 91 Extradition Act 2003 (“EA 2003”) are a bar to extradition in circumstances where:

The condition is that the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him.

A high threshold must be met in order to satisfy the bar of “oppression”.  The likely stress and hardship of extradition are not themselves sufficient.  A key factor in determining whether that threshold is met will be the level of care available in, and any assurances provided by, the country that is seeking extradition.

What is the difference between Section 25 and Section 91 Extradition Act 2003?

Section 25 and Section 91 EA 2003 are identical in content and only differ in their application.  Section 25 applies to “Category 1 Territories” and Section 91 applies to “Category 2 Territories”, with an explanation to the procedural differences between Category 1 and Category 2 countries (although it should be noted the European Arrest Warrant is no longer in force).

What is the legal test for oppression in extradition?

The current test for Section 91 and Section 25 EA 2003 was established in Turner v Government of the USA 2012 EWHC 2426 (Admin).  The test holds one vital tenant, notably that the mental condition of the person being extradited must be such that it removes his or her capacity to resist the impulse to commit suicide.

This proposition was approved in Wolkowicz v Polish Judicial Authority [2013] EWHC 102 (Admin), where it was stated that the key issue in almost every case will “be the measures that are in place to prevent any attempt at suicide by a requested person with a mental illness being successful”.

Indeed, recent authorities have held that:

The question is whether, on the evidence, whatever steps are taken – and even if the Court is satisfied that appropriate arrangements are in place in the prison system of the country to which extradition is sought so that those authorities will discharge their responsibilities to prevent the requested person committing suicide – the risk of the requested person succeeding in committing suicide, by reason of a mental condition removing the capacity to resist the impulse to commit suicide, is sufficiently great to result in a finding of oppression

Only upon establishing this threshold, can a Section 91 / 25 defence to extradition realistically be supported.  This is a high threshold.

Section 25 and Section 91’s application to different extradition requests

The test in Section 91 and Section 25 EA 2003 it therefore applied on a case-by-case, and a country-by-country, basis.  As well as the mental condition of the requested person, one of the key factors will be assurances provided by the requesting state.  Indeed, these two factors will need to be balanced.

For instance, in the recent case of Fletcher v India 2021, it was held that the assurances provided by India did not significantly reduce the very high risk of suicide if Fletcher were to be extradited. Therefore, extradition was deemed oppressive. Specifically, given his high suicide risk, it was concluded that “any assurance should address all realistic modes of committing suicide. The assurances here do not”.

Comparatively, in Farookh v Germany 2020, although extradition was barred, the judge in the case felt comfortable stating: “I can rely on the presumption that Germany will afford him the proper medical care it assesses him to require”.

The importance of this highlights a less commonly known facet of the test in Turner, notably the appropriateness of the arrangements made by the requesting state to attend to, and cope with, the person’s mental condition is applied with reference to the assurances made by the requesting state.   Of course, the level of care which can be applied within a respective Country’s prison is a factor to consider.

Understanding the nuances of a Section 25 / Section 91 defence, including whether arguments that prison conditions also breach Article 3 ECHR rights in the context of a Section 25 or Section 91 EA 2003 defence is a specialist area.  It is imperative that a specialist analysis of the evidence gathered in the context of a defendant’s circumstances is always conducted.

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The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

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