New Appeal: Does the Constitution protect the mentally ill from extradiction?

In this determination, Attorney General v Davis, the Supreme Court granted Davis leave to appeal the Court of Appeal’s decision not to prohibit his extradition to the United States of America to stand trial on charges relating to narcotics trafficking, computer hacking and money-laundering.

Background

Davis suffers from Asperger’s Syndrome and argues that, if extradited to the US, the conditions of his detention there would breach his rights under Article 40.3 of the Constitution and Article 3 of the ECHR.

In the High Court (here), McDermott J rejected that argument, stating:

145. I am not satisfied that the respondent has established that there are substantial grounds for believing that if extradited to the United States he will be exposed to a real risk of being subjected to treatment of an inhuman or degrading nature by reason of the conditions of confinement to which he will be subject and/or the fact that he has AS and suffers from depression and generalised anxiety with thoughts of self-harm and suicide prompted and exacerbated by a fear of isolation and separation if imprisoned in the United States.

Davis appealed the High Court’s extradition order to the Court of Appeal under s 29 of the Extradition Act 1965. S 29 limits an appeal from the High Court to a point of law. Davis argued that:

(i) The learned trial judge erred in deciding that surrender of the appellant for extradition did not give rise to a real risk of a violation of his Article 40.3 rights under the Constitution and of his rights under Article 3 ECHR.

(ii) The learned trial judge erred in deciding that the surrender of the appellant for extradition did not give rise to a real risk of a violation of his rights under Article 8 ECHR and his rights under Article 40.3.2 of the Constitution to the integrity of the human mind and personality.

The Court of Appeal (here) dismissed Davis’s appeal on grounds that his arguments challenged the trial judge’s finding of fact and did not involve a point of law, as required by s 29 of the 1965 Act.

Davis applied to the Supreme Court for leave to appeal the Court of Appeal’s decision.

Granting leave to appeal, the Supreme Court determined that Davis did raise a point of law of general public importance:

16. The situation with regard to this case is that there is a serious diagnosis. There is also a factual analysis in the High Court. An error of fact may in exceptional cases become an error of law. Constitutional protection may extend to stopping an extradition on medical or psychiatric grounds but, while many cases have been cited, there is not yet a definitive pronouncement on the particular circumstances.

The Court granted leave on the following issues (subject to possible modification during case management):

(a) whether issues of fact can ever be regarded as issues of law pursuant to s. 29 of the Extradition Act 1965, and in what circumstances such an issue of law might arise out of fact;

(b) whether the State is obliged to protect vulnerable persons suffering from mental illness under the Constitution within the context of an extradition application and the circumstances under which that duty is engaged so that an extradition request should not be granted;

(c) whether in this case the condition of Gary Davis is so severe in fact that, as a matter of law, he may not be extradited to the United States of America.

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