Shrien Dewani extradition put on hold on mental health grounds
Friday 30 March 2012
The High Court temporarily halted British businessman Shrien Dewani's extradition to South Africa on mental health grounds today.
Two judges in London ruled that it would be "unjust and oppressive" to order the removal of Dewani, who is accused of arranging the contract killing of wife Anni in Cape Town in November 2010 during their honeymoon.
But the court said it was plainly in the interests of justice that he should be extradited "as soon as he is fit" to be tried.
Care home owner Dewani, from Bristol, strenuously denies any wrongdoing.
He has been diagnosed with severe post-traumatic stress disorder (PTSD) and severe depression and his lawyers argue that his health and life will be at risk if he is extradited.
The Dewani family welcomed the ruling, saying: "Shrien can only return to South Africa when he is well enough and when his personal safety can be guaranteed."
Sir John Thomas, president of the Queen's Bench Division and Mr Justice Ouseley, allowed Dewani's appeal against immediate extradition and ordered that the case be remitted back to Westminster Magistrates Court for a further hearing.
The key factors the judges said they had taken into account included his unfitness to plead, increased prospects of a speedier recovery if he remains in the UK and "the lack of clear certainty" as to what would happen if he was returned to South Africa in his present condition.
The risk of suicide was also considered "to a much lesser degree".
Mrs Dewani, 28, from Sweden, was shot when a taxi the couple were travelling in was hijacked in the Gugulethu township on the outskirts of Cape Town.
She was found dead in the back of the abandoned vehicle with a bullet wound to her neck after taxi driver Zola Tongo drove the newlyweds to the impoverished area.
He and Mr Dewani were ejected by the hijackers before Mrs Dewani was driven away and shot.
Tongo, who has admitted his part in the crime, claimed in a plea agreement with prosecutors that Dewani ordered the carjacking and paid for a hit on his wife.
In their statement, the businessman's family said: "The Dewani family are grateful that the High Court has upheld the appeal and blocked any attempt to extradite Shrien to South Africa now.
"Shrien is innocent and is determined to return to South Africa to clear his name and seek justice for his wife Anni.
"The High Court has confirmed that extradition now would be 'unjust and oppressive'.
"The matter is still before the courts and so it would be inappropriate to comment further."
Members of Mrs Dewani's family were in court as Sir John announced the court's ruling.
At a hearing last December, Clare Montgomery QC, for Dewani, argued he was so ill that he would be incapable of giving instructions to his lawyers or following trial proceedings, and extradition should be delayed until he had recovered.
The QC submitted that Senior District Judge Howard Riddle was wrong last August when he accepted South African assurances that Dewani's life and health would not be endangered if he was sent back to South Africa.
Ms Montgomery argued that the limited assurances that were given were "incapable of fulfilment" and District Judge Riddle should have ordered Dewani's discharge under section 91 of the Extradition Act 2003 on the grounds that sending him back would "manifestly endanger his health or risk his life".
Today the High Court refused a discharge but agreed that there should at least be a delay under section 91.
Sir John said Dewani's depression and post traumatic stress had worsened after his arrest on December 7 2010, and on February 20 last year he took an overdose.
He was admitted to the Bristol Royal Infirmary and told staff in the A&E department that he did not want to live, but denied to others that he had attempted suicide, said Sir John.
"The senior district judge found that it was a deliberate overdose to avoid engaging with the extradition proceedings."
He was discharged but, as a condition of his bail, went to the Priory Hospital as an in-patient.
On April 11 last year there was a further deterioration of his condition following the onset of suspected serotonin syndrome or neuroleptic malignant syndrome.
Sir John said Dewani developed psychotic symptoms and was transferred to a low secure psychiatric unit at Kewstoke, before being sectioned under the 1983 Mental Health Act and admitted to the Fromeside Clinic in Bristol.
Halting Dewani's immediate extradition, Sir John said: "Thus balancing his unfitness to plead, the risk of a deterioration in the appellant's condition, the increased prospects of a speedier recovery if he remains here and, to a much lesser degree, the risk of suicide and the lack of clear certainty as to what would happen to the appellant if returned in his present condition, we consider that on the evidence before the senior district judge it would be unjust and oppressive to order his extradition.
"Despite the highest respect in which we hold decisions of the senior district judge, we consider that he erred and should have exercised his powers under section 91(3)(b) and ordered that the extradition hearing be adjourned."
Sir John said: "In our view, the medical evidence as to the unusual combination of PTSD and depression to such a severe degree and the appellant's other conditions was clear that extradition would present a real and significant risk to the life of the appellant."
The High Court had the benefit of further evidence "from which it is apparent that the appellant is making a slow recovery under his current treatment regime".
Sir John said: "That confirms the view we had reached on the evidence before the senior district judge that the senior district judge should have adjourned the extradition hearing."
Although Dewani's appeal was allowed on health grounds, the judges ruled that extradition would not breach his rights under the European Convention on Human Rights.
It was argued on Dewani's behalf that his rights under Articles 2 and 3 - right to life and protection from torture and inhuman or degrading treatment - would be violated.
Sir John said: "It was the contention advanced on behalf of the appellant that the appellant's rights under Articles 2 and 3 would be violated as prison conditions combined with circumstances specific to the appellant - his mental health, media profile and vulnerability - meant that there was a real risk of a violation of Articles 2 and 3.
"Reliance was placed not only on the effect of his extradition on his mental illness and the lack of facilities for its treatment, but also on the high risk of HIV/Aids infection and attack, particularly sexual violence, from other inmates."
It was contended that Judge Riddle was "wrong to accept" undertakings from the Government of South Africa and that the undertakings "could not specifically protect the appellant".
Sir John said Judge Riddle "was satisfied that the appellant would be held in accordance with the undertakings to which there would be adherence in all but the most extreme circumstances". and had concluded that there would be no breaches of Articles 2 and 3.
In addition to the assurances "the senior district judge was able to rely on the fact that South Africa had adopted all relevant international treaties, it had its own Bill of Rights, the rule of law was upheld and it had a free press".
Although there were risks of violence, particularly sexual violence, to a prisoner in a communal cell in South Africa, the Government of South Africa "has given clear undertakings that the appellant would be held in a single cell".
Sir John said the court considered that Judge Riddle was entitled to accept undertakings given by the national director for correctional services and "that he was right to hold that they would be followed".
He added: "South Africa has now a material track record of respect for democracy, human rights and the rule of law.
"Those are highly material factors to the court's acceptance of the undertakings."
Sir John concluded: "In the light of the undertakings which we also accept will be honoured, we are sure on the facts that there would be no violation of Articles 2 and 3 by reason of the risk of infection by HIV/Aids or of attack by fellow prisoners."
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