England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/05/2014

Lord Justice Moses:

1. The Government of Ghana appeals under s.105 of the Extradition Act 2003, against the decision of Deputy Senior District Judge Arbuthnot, relating to its request for the extradition of the respondent, Frank Gambrah, so that he should stand trial for murder on 12 October 2007. On 9 October 2013 the District Judge ordered the discharge of Frank Gambrah, pursuant to s.87(2) of the 2003 Act. Under Ghanaian law a trial judge, if the respondent is found guilty, would be obliged to sentence him to death. The District Judge accepted Ghana's assurance that the death penalty would not be carried out in Frank Gambrah's case. But, despite accepting the assurance, she ruled that the respondent's extradition would not be compatible with his rights enshrined in Article 3 of the European Convention on Human Rights. Ghana appeals, essentially, on the ground that once the District Judge had accepted that assurance, there was no basis for concluding that the requested person's extradition would be incompatible with his rights under Article 3. The mere imposition of the death sentence, coupled with an acceptable assurance that it would not be carried out, precludes such a conclusion.
2. In addition to seeking to uphold the judge's conclusion, the respondent cross-appeals. At this stage it is necessary only to draw attention to one of the grounds of the cross-appeal relating to the respondent's mental condition. It is contended that the District Judge should have found that the respondent's mental health was such as to render his extradition unjust or oppressive and she should have discharged him pursuant to s.91(3)(a) of the 2003 Act. I refer to the issue of the requested person's mental health because it is relevant to consideration of the consequence to the respondent if a judge in Ghana pronounces a sentence of death, even in circumstances where this respondent will not be executed.

Sentence of Death: Assurance

3. By s.94 of the 2003 Act:-

"(1) The Secretary of State must not order a person's extradition to a category 2 territory if he could be, will be or has been sentenced to death for the offence concerned in the category 2 territory.

(2) Subsection (1) does not apply if the Secretary of State receives a written assurance which he considers adequate that a sentence of death -

(a) will not be imposed, or

(b) will not be carried out (if imposed)."

Although Ghana contended, in its written argument, that the question of the acceptability of the assurance was for the Secretary of State, it did not resist the issue being raised both before the District Judge and before this court, where the respondent contended that the assurances given could not be relied upon.

4. The first question must be, therefore, whether the District Judge was correct in concluding that there was no real risk that the mandatory sentence would be carried out (paragraph 76b of her judgment). She did later, however, refer to what she described as "the vagueness of the assurance" and "the unease about the personal commitment of the Ghanaian minister to the assurance" (77c). But that reference relates to the circumstances in which the requested person will be detained after the passing of the sentence, circumstances to which I shall have to return later.
5. It is, therefore, necessary to consider what the court has been told by way of assurance. The background to the assurance is of importance. There have been no executions in Ghana since 1990 but sentence of death remains mandatory, under Ghanaian law. No steps have been taken towards its abolition and, according to Professor Attafuah, an expert called on behalf of the respondent, the death penalty is likely to remain in Ghana for the foreseeable future; there is no political appetite for giving the appearance of softening towards those convicted of serious crimes, despite the fact that the Constitution Review Commission, in a report submitted to the President of Ghana in March 2011, recommended the repeal of the death penalty law. In Johnson v The Republic [2011] 2 SC GLR 601, the majority of the court (the Presiding Justice of the Supreme Court dissenting on this point) upheld the constitutionality of the mandatory death penalty. The background, accordingly, to any consideration of the binding nature of the assurance is that the death penalty is lawful in Ghana.
6. On 16 August 2010 a letter was sent from the Attorney General's department, signed by the Chief State Attorney on behalf of the Attorney General, to the British High Commission, saying:-

"Please find enclosed the Assurance on the Death Penalty duly signed on behalf of the Minister for Justice and Attorney General for onward transmission to the addressee below:" (a member of the Extradition Section in London).

Enclosed with the letter was a document from the Attorney General's department dated 16 August 2010 and headed "Government of Ghana Assurance on the Death Penalty". It concludes:-

"NOW THEREFORE, the Ministry of Justice and Attorney General on behalf of the Government of Ghana gives an assurance to the Government of the United Kingdom of Great Britain and Northern Ireland that the death penalty will not be carried out on Frank Kwame Gambrah even if it is imposed."

It is signed on behalf of the Minister for Justice and Attorney General.

7. Mr Knowles QC, on behalf of the respondent, contends that no weight should be attached to this assurance. In Armah v Government of Ghana Lord Reid suggested, obiter, that an undertaking given by Ghana as to the form of trial to which the requested person would be exposed might create misunderstanding and "perhaps acute difficulties in the event of a change of circumstances" [1968] AC 192 at 236B. Lord Upjohn expressed the hope that such undertakings would never be accepted again in the light of the danger of a change of government, which might not feel bound by the acts of its predecessor, or a genuine difference of opinion as to the proper interpretation of the undertakings (page 263 C-D).
8. There is, as the Intervener, the Death Penalty Project, points out, an inherent unpredictability and unreliability in moratoria. A death penalty moratorium, it rightly points out, is often a pragmatic compromise between public opinion and the political leadership. But the views of the political leadership and the shift in balance between the personal conviction of political leaders and the strength of public pressure may change. In Taiwan a de facto moratorium between 2005 and 2010 came to an end as a result of political pressures. The Death Penalty Project describes the situation in some commonwealth Caribbean countries as precarious. Despite a moratorium for 27 years, nine prisoners were executed in The Gambia in August 2012. There had been but one execution since it had attained independence in 1965. In 2006 Japan resumed executions after a short de facto moratorium and again, in 2012, after a twenty-month break.
9. But I do not think it is open to this court, any more than it was open to the District Judge, to reject the specific assurance given in relation to this requested person. There is no basis for rejecting that assurance; there is no history, material or evidence to suggest that previous governments have gone behind specific assurances which have been given, nor any material or evidence to suggest that there is a risk they will do so in the future. I derive support from the acceptance of the Divisional Court that Ghana should "properly be regarded" as a country which has a "history of respect" for democracy, human rights and the rule of law. (Richards v the Government of Ghana [2013] EWHC (Admin) 1254 [49]). I do not think that any government of Ghana would feel free to go behind the specific assurance which has been given.
10. Nor do I believe it to be significant that it is not possible to identify the person who has signed on behalf of the Attorney General, bearing in mind that both the documents to which I have referred make it clear that the undertaking is given on behalf of the Minister of Justice and the Attorney General, even though a different assurance in relation to speciality has been signed directly by the Minister. In those circumstances, it seems to me that this case must proceed, as it proceeded before the District Judge, on the basis that this requested person will not be executed.

Article 1 13^th Protocol to the ECHR

11. It is fundamental to keep in mind that the requirement imposed by s.87 to examine whether a person's extradition would be compatible with his Convention rights (s.87(1) of the 2003 Act) does not impose obligations on a non-convention state. The Convention does not purport to be a means of requiring the contracting states to impose Convention standards on other states (see Harkins and Edwards v United Kingdom [2012] 55 EHRR 19 at paragraph 129). By this proposition, the Strasbourg court expressed its agreement with the observations of Lord Brown in R (Wellington) v Secretary of State for the Home Department [2009] AC 335. There is no dispute in this case but that if there was a real risk that the requested person would be executed then the United Kingdom could not extradite him. Soering v United Kingdom [1989] 11 EHRR 439 established that there could be circumstances in which the extraditing state could not extradite a requested person where he ran the risk that the death sentence would be carried out. But the respondent contends that the mere pronouncement of the death penalty, whether it is carried out or not, precludes his extradition. It is contended that Article 1 of Protocol No. 13 to the Convention prohibits the United Kingdom, a signatory to the Protocol, from exposing a person under its control to a real risk of the death penalty being imposed, whether there is a risk of it being carried out or not. Article 1 of the 13^th Protocol provides:-

"Abolition of the Death Penalty

The death penalty shall be abolished. No one shall be condemned to such penalty or executed."

12. The history of Article 1 of the 13^th Protocol was explained by the ECtHR in Al-Saadoon v United Kingdom [2010] 51 EHRR 9. The imposition and use of the death penalty negates fundamental human rights (paragraph 115). The predecessor to Protocol No. 13, Protocol No. 6, which came into force on 1 March 1985, abolished the death penalty except in respect of acts committed in time of war or of imminent threat of war. Protocol No. 13 entered into force on 1 July 2003 and abolished the death penalty in all circumstances. It was signed by 42 member states and by the United Kingdom on 3 May 2002. It was ratified shortly after and came into force in respect of the United Kingdom on 1 February 2004. The court pointed out that it admits of no derogation and applies in all circumstances:

"It ranks along with the rights in Articles 2 and 3 as a fundamental right, enshrining one of the basic values of the democratic societies making up the Council of Europe. As such, its provisions must be strictly construed (118)."

It imposes a requirement to abolish the death penalty.

13. In Al-Saadoon the applicants complained that the transfer by United Kingdom authorities to Iraqi custody put them at real risk of violation of their right to life under Article 2 and violated Article 1 of Protocol No. 13. The court concluded that they would be at risk of execution (paragraph 143). Its importance, in the instant case, is the court's link between the obligations imposed under Article 2 of the Convention and Article 1 of Protocol 13:

"The Court considers that, from that date at the latest (1 February 2004), the respondent state's obligations under Article 2 of the Convention and Article of Protocol No. 13 dictated that it should not enter into any arrangement or agreement which involved it in detaining individuals with a view to transferring them to stand trial on capital charges or in any other way subjecting individuals within its jurisdiction to a real risk of being sentenced to the death penalty and executed." (my emphasis) [137]

14. The court reiterated the decision of the Grand Chamber in Ocalan [2005] 41 EHRR 45 that the legal position in relation to the death penalty had undergone a considerable evolution since its decision in Soering v United Kingdom [1989] 11 EHRR 439. Notwithstanding the second sentence of Article 2.1 of the Convention, the death penalty has become an unacceptable form of punishment (see the extensive citation of Ocalan at paragraph 119). The court pointed out that, in effect, Article 2 has now been amended so as to remove the exception permitting the death penalty, and the death penalty is now prohibited in all circumstances. Moreover, a well-founded fear of executions must have given rise to a significant degree of mental suffering and constituted a breach of Article 3.
15. The risk which the requested state must consider is a risk of being subjected to the death penalty in the requesting state [123]. The Court did not suggest that the law had changed from that which had been understood in Soering when applied to the obligations of a contracting state in relation to a non-Convention state. In Soering Strasbourg had noted that Article 2 of the Convention did permit capital punishment under certain conditions (101). Even though the Strasbourg court has made it clear that the use of the death penalty in all circumstances is an unacceptable form of punishment it does not seem to me to have changed its view as to the approach a contracting state should take in the case of a requested extradition by a state which continues to pass the sentence of death. The risk which has to be assessed by the requested state, in pursuance of its obligations under Articles 2 and 3 of the Convention and under Article 1 of the 13^th Protocol, was a risk as to whether the death penalty would be executed and not merely whether it would be imposed. The question remains whether there is a real risk that it will be implemented. It seems to me, as Mr Lewis QC contended, that it cannot be said that the United Kingdom will violate its obligations under Article 1 of the 13^th Protocol any more than under Article 2 of the Convention if it extradites a requested person who is not at a real risk of being executed. Accordingly, I reject the submission that the mere fact that the death sentence will be imposed by itself imposes a bar on extradition.

Article 3

16. For those reasons, the focus of this case must be directed at the issue whether the circumstances in which the respondent will be imprisoned are such as to make his extradition a breach of Article 3. The essential argument advanced on behalf of the respondent is that having been sentenced to death he will remain in limbo. No alternative sentence other than death is proposed. No assurance has been given that it will be commuted to a life sentence. All that he faces is a very long period on death row at the mercy of the President who may grant a pardon or substitute a less severe form of punishment (see paragraph 50 of the submissions of the Death Penalty Project). The Death Penalty Project records that commutation of capital sentences to life imprisonment occurs about once or twice a year "typically only affecting prisoners who have been on death row for longer than ten years". Thirty-three of the prisoners granted amnesty in July 2013 were prisoners on death row who had served ten years or more.
17. The Republic of Ghana, despite knowledge that these submissions were going to be advanced and the opportunity given to give assurances as to the nature of the sentence which would be imposed in substitution for the death sentence, has failed to take the opportunity to do so. Neither the District Judge nor this court has been told whether an alternative sentence will be passed and, if so, what sentence will be imposed in place of the death sentence. Mr Lewis QC, on behalf of the Government, contended that whilst de jure, Mr Gambrah will remain under sentence of death, he is, de facto, under sentence of life imprisonment which is not irreducible because at some stage the President may grant a pardon leading to his release. Moreover, the assurance has been given even before Mr Gambrah is tried.
18. In the light of the consequences to the respondent of the passing of a mandatory death penalty which will not be carried out but in place of which no commuted sentence is proposed, it is necessary to consider both the Strasbourg and domestic authority concerning the detention of prisoners on death row and the imposition of mandatory life sentences.
19. The starting point is the decision of the ECtHR in Soering. The applicant's allegation of a violation of Article 3 was not that the requested person was to be sent to Virginia, where he faced charges of capital murder for which the penalty was death, but rather, that the manner in which it was implemented in Virginia after long delays was inhuman or degrading (see Lord Hoffman's commentary in R (Wellington) v Home Secretary [2008] UKHL 72 [2009] 1 AC 335 at paragraph 20). The death row phenomenon to which he would be subjected was described by the court in Soering:-

"Having regard to the very long period of time spent on death row in such extreme conditions, with the ever-present and mounting anguish of awaiting execution of the death penalty, and of the personal circumstances of the applicant, especially his age and mental state at the time of the offence, the applicant's extradition to the United States would expose him to a real risk of treatment going beyond the threshold set by Article 3." (111)

I should underline the reference by the court in Soering to the personal circumstances of the requested person.

20. The Privy Council has followed the approach of Strasbourg. A delay of 14 years in carrying out executions constituted inhuman punishment contrary to the Constitution of Jamaica. In Pratt v Attorney General for Jamaica [1994] 2 AC 1 Lord Griffiths described:-

"…an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. What gives rise to this instinctive revulsion? The answer can only be our humanity; we regard it as an inhuman act to keep a man facing the agony of execution over a long extended period of time". (page 29G)

Later, in giving the opinion of the Board, Lord Griffiths said that:-

"Appellate procedures that echo down the years are not compatible with capital punishment. The death row phenomenon must not become established as part of our jurisprudence." (page 33C)

21. In R (Wellington) v Secretary of State for the Home Department [2008] UKHL 72 [2009] 1 AC 335 the House of Lords concluded that whilst extradition to face an irreducible life sentence might amount to a breach of Article 3, a mandatory life sentence without eligibility for parole was de jure reducible in Missouri because the Governor had the power to pardon the prisoner or to commute his sentence with the possibility of parole. The House of Lords was also of the view that even if the sentence imposed in Missouri was irreducible and might therefore contravene Article 3 if imposed in the United Kingdom, in the context of extradition, the United Kingdom would only be in breach of Article 3 if the sentence were likely on the facts of the case to be clearly disproportionate.
22. The case is of importance, as I have already indicated, in demonstrating that the Convention does not purport to be a means of requiring contracting states to impose Convention standards on other states (see Lord Brown [86]). That which might be a breach of Convention rights within a contracting state's own jurisdiction is not necessarily a breach for which a contracting state will be responsible in circumstances where extradition is sought to a state not itself bound by the Convention.
23. In Wellington there was disagreement as to whether an issue as to breach of Article 3 in a requesting state should take into account the desirability of arrangements for extradition, as Lord Hoffman described them [22]. Baroness Hale at [50] and Lord Brown at paragraph [87], disagreed. It is by now clear that the importance of extradition to face trial is not a relevant factor. (In Harkins and Edwards v The United Kingdom [2012] 55 EHRR 19, the court rejected this relativist approach [124].)
24. In Wellington their Lordships differed as to whether the powers of the Governor of Missouri to reduce the mandatory life sentence made the sentence irreducible for the purposes of consideration as to whether there was a breach of Article 3. Lord Hoffman thought that the sentence was not irreducible [34]. Lord Scott thought that the possibility of a discretionary release was so remote that it should be regarded as irreducible [43] but that in the circumstances it would not be so grossly disproportionate on the facts of that case. Lord Brown analysed the domestic jurisprudence in relation to mandatory life sentences (68-83). He referred to de Boucherville v the State of Mauritius [2008] UKPC 37 in which the Board accepted that mandatory life sentences are by their nature distinct from mandatory death sentences, but concluded that a sentence whereby a convicted murdered forfeited his liberty for the rest of his days until (if ever) the Home Secretary concluded that the public interest would be better served by his release, would amount to a violation of Articles 3 and 5 (see the references to R v Lichniak [2003] 1 AC 903 and those given by Lord Brown at paragraph 69 of Wellington). It is plain, therefore, that by now, both under domestic law and in Strasbourg (see Vinter v United Kingdom [2013] 34 VHRC 605) for a life sentence to remain compatible with Article 3 there must be a prospect of release and a prospect of review (110). That was the test applied in R v McLoughlin [2014] EWCA Crim 188 in upholding the legality of the whole life sentence.
25. Accordingly, the question which must be answered is whether the possibility of the President pardoning Mr Gambrah demonstrates that the soi-disant mandatory life sentence is not irreducible.
26. The problem in the way of the argument advanced by Mr Lewis QC on behalf of Ghana lies, in part, in the assumption that the circumstances in which this requested person is detained in on death row is to be likened to one on whom a mandatory life sentence has been imposed. It must be recalled that no life sentence has been passed.
27. By way of contrast, in de Boucherville the statutory provisions abolishing the Death Penalty Act 1995 deemed the sentence of death to be a sentence to penal servitude for life and, because it was irreducible, it offended the Convention of Mauritius (see paragraphs 23 and 25). Here, there is no legal provision as to the sentence to be imposed upon the requested person, if convicted, now that the assurance has been given. Ghana has not communicated to the courts in this country any indication as to the status of the requested person other than he will be detained on death row with the possibility, at some stage, of his being released as an act of mercy by the President.
28. Accordingly, the situation in which the requested person would find himself if convicted is that he will face an indeterminate period on death row with no possibility by a judicial process of relying upon either the facts of the offence or his personal circumstances for the purpose of determining how long it is appropriate for him to be imprisoned. On the contrary, there is to be, apparently, no intervention by any court at all. Nor, indeed, is there any material to suggest that the President will consider his release on the basis of the facts of the case or his personal circumstances.
29. In such circumstances, it seems to me wrong to equate this requested person's incarceration to a mandatory life sentence which is reducible, passed by a sentencing court and in accordance with the law. His situation is far more close to that in which the appellant found himself in Reyes v The Queen [2002] 2 AC 235. The Privy Council held that the mandatory death penalty in Belize was unconstitutional and remitted the case to a judge to pass an appropriate sentence. To pass a sentence without considering mitigating circumstances relating to the offence or to the offender was contrary to the constitutional prohibition not to impose an inhuman or degrading punishment. Giving the opinion of the Board, Lord Bingham said that "the need for proportionality and individualised sentencing is not confined to capital cases" (paragraph 43). The power of the Governor General, with the advice of the Advisory Council, to exercise mercy could not cure a constitutional defect in the sentencing process [44]. Although the principle which underlay Reyes must be considered in the context of extradition, Mr Gambrah's situation is close to that of the prisoner in Mauritius.

Mr Gambrah's Health

30. Added to the circumstances in which the respondent is to be held without any prospect of a court passing a sentence in substitution for the death sentence, or offering him the prospect of arguing any mitigation, there must be considered Mr Gambrah's personal circumstances. I have already referred it to the need to look at those circumstances (Soering and Al-Saadoon at paragraph 125). The personal circumstances of Mr Gambrah demonstrate, to my mind, how sharp and heavy the impact on him as he remains imprisoned on death row in limbo.
31. There was agreement amongst the doctors as to the state of Mr Gambrah's mental health. In a report dated 29 August 2012 Dr Grassian described the conditions Mr Gambrah would experience were he to be extradited back to Ghana, facing incarceration on death row. He is a psychiatrist in America with experience of death row inmates. But he had not interviewed Mr Gambrah personally. He describes death row as "uniquely terrifying and oppressive…a roller coaster of hope and despair and often utter helplessness".
32. The appellant seeks to soften the force of these descriptions by the fact that an assurance has been given that Mr Gambrah will not be executed. However, that assurance must be viewed in the context of his medical condition and in particular the evidence of the doctors who have been able to examine Mr Gambrah. In his report dated 30 August 2012, Dr Schaapveld records Mr Gambrah's account of his interrogation at a police station in Ghana in 2009, during which he suffered damage to his eardrum, and the psychological disturbances which have followed. He has diagnosed two separate mental disorders, post-traumatic stress disorder following exposure to a traumatic event, and panic disorder. He concludes:-

"Taken as a whole, his unexpected arrest, incarceration, multiple assaults, death threats, experience of inhuman and degrading prison conditions, witnessing death, suicide and sexual assault, as well as being under threat of the same, has directly led to his current psychological abnormality."

It is his opinion that were Mr Gambrah to be returned to custody in Ghana, he would "most certainly suffer significant and potentially catastrophic deterioration in his mental state…"

33. He describes the symptoms of Mr Gambrah's post-traumatic stress disorder as extremely debilitating:-

"It is possible therefore that were he to be returned to custody in Ghana, these additional and worrying psychological abnormalities may deteriorate into a further, and in many ways a more severe, mental disorder, that being a psychotic type disorder. In addition to this, Mr Gambrah made it fairly clear that he would be increasingly suicidal were the prospect of return to custody in Ghana become realised (sic)."

Dr Schaapveld says that he would expect a deterioration of the symptoms of post-traumatic stress disorder and panic disorder, the emergence of psychotic and psychotic-like symptoms, most probably with suicidal ideation leading to suicide attempts. He says, finally, that he has no doubt that "were Mr Gambrah to find himself in such a situation, he would experience this as unbearable torture".

34. Mr Lewis QC rightly points out that the doctor's conclusions are based substantially on what Mr Gambrah says himself. It is, accordingly, not surprising that the requesting state sought its own psychiatric report from Dr Jenkins, who produced a report dated 7 May 2013.
35. This report substantially agrees not only with the views of Dr Shaapveld, but also with the more general views of Dr Grassian as to the effect of conditions in a Ghanaian gaol. Dr Jenkins concurs with Dr Grassian's final opinion "that he felt it inevitable that he would become desperately ill again" [5.2.1]. Dr Jenkins specifically agrees with Dr Shaapveld's opinion as to the state of Mr Gambrah's health and that should Mr Gambrah be returned to Ghana he would suffer a "significant and potentially catastrophic deterioration in his mental date". Dr Jenkins says he agrees with that opinion and observes that "the fear of persecution can extend into an unrealistic paranoid fear, that may be beyond the actuality of the threat". Dr Jenkins records Mr Gambrah's previous experience in overcrowded conditions and refers to the evidence from Amnesty International as to those conditions. He records that Mr Gambrah would not consider that he would have the opportunity of a fair trial and that his fate is sealed. Mr Gambrah told Dr Jenkins that he would rather commit suicide before returning to Ghana if his appeal fails. Dr Jenkins then says:-

"Given his psychiatric history of depressive illness and post-traumatic stress disorder, his perceived sense of injustice in the Ghanaian system and his belief that he will not be subject to a fair trial in Ghana, it is my clinical opinion that his chance of completed suicide are very high indeed if he is extradited (my emphasis). I base my opinion on his clinical condition on

(1) my clinical experience in my daily work…

(2) his clinical state as described in August 2012 [by] Dr. Shaapveld and

(3) on the report by Dr Grassian on the conditions in Ghanaian prisons."

Dr Jenkins refers to a previous psychiatric report in autumn 2012 and considers Mr Gambrah's mental state to be fragile and liable to change significantly should the extradition proceed.

36. Dr Jenkins records the fears of Dr Shaapveld that extradition would have a devastating impact on Mr Gambrah's health. He says that that prediction is correct and corroborated by three experts in the field (he includes evidence from Dr Arnold as to the wounds and scars of trauma). He says he considers Mr Gambrah's potential risk of suicide through extradition "to be a likely outcome". He repeats that as a psychiatrist

"…my concerns are primarily about his risk of suicide, which is I believe probably very high indeed if he was extradited."

37. The judge recorded that "Mr Gambrah has mental health problems". She noted that those problems had improved and observed that whilst Mr Gambrah's mental health problems, were based on very poor conditions whilst he was subject to remand, and tragic events he said he had witnessed in police cells, and that there had been an assurance he would be detained at Ankaful, where conditions were better (see judgment, paragraph 38).

Medical Treatment

38. Whilst conditions at Ankaful are primarily relevant to the respondent's cross-appeal under s.91 of the 2003 Act, it is relevant to consider them at this stage, since they go to the question of the personal circumstances of Mr Gambrah whilst detailed on death row awaiting the President's exercise of mercy.
39. On 22 January 2013 the Director of Prisons, Mr Bansah, gave an assurance that Mr Gambrah would be held at the Ankaful maximum security prison. This assurance post-dates the report of Professor Attafuah dated 7 August 2011 which predicted that Mr Gambrah would be at Nsawam medium security prison. The District Judge was entitled to accept the assurance that Mr Gambrah would be detained on death row at Ankaful. In response to a request for further information the requesting state sent a report from a retired justice of the Supreme Court, BT Aryeetey. This report stated that Ankaful prison had become the start for a decongestion programme of Ghanaian prisons. He described the atmosphere as "generally serene, peaceful and orderly". He said that the prison was under-populated, there were visiting hours and ample means of entertainment. As to the medical facilities, he said:-

"Mental patients are examined every week by staff from the Ankaful mental hospital, which is one of the main mental hospitals in Ghana."

The report contains numerous photographs of the retired justice's visit and of the facilities at the prison. The District Judge accepted that evidence, finding that there would be no breach of Article 3 in relation to the treatment of prisoners with mental health issues and that it would not be oppressive to extradite Mr Gambrah for the purposes of s.91 of the 2003 Act (judgment, paragraph 39). She said that:-

"There was no evidence to suggest that Ankaful could not cope with and protect prisoners with worsening mental health conditions. I noted that Dr Doku said that medication was available free on prescription from a psychiatric hospital and prisoners are not charged for that medication." (my emphasis)

She advised that Dr Schaapveld's and Dr Jenkins's reports should accompany Mr Gambrah, should he be extradited.

40. It is necessary to consider whether the District Judge's assessment of Mr Aryeetey's report, when weighed against the evidence of Dr Doku, was adequate. Dr Doku is a specialist psychiatrist at the Kintampo Health Research Centre in Ghana and has honorary appointments, including a Visiting Lecturer in Epidemiology at the Department of Psychological Medicine at King's College, London. He says that he has not visited either Nsawam prison, nor Ankaful, since "there is no provision of psychiatric health services within the Ghanaian prison system" (see report dated 15 October 2012). He records that Ghana has a mental health policy "on the books" but that its mental health services are "often" not informed by research and that they have serious difficulty with the practicalities of mental health policy implementation. He says:-

"Moreover, people with mental illness are frequently victimised with extensive human rights violations, such as prolonged attention without review of their mental health conditions, and stigmatised and discriminated against on a daily basis, to the extent that people cannot access any form of treatment and care and those people who do receive care are often exposed to inhuman degrading living conditions when in mental health treatment facilities. Thus, getting adequate mental health care in a country like Ghana is extremely difficult, if not impossible."

41. Later in his report he records discussions with fellow mental health experts in Ghana, including psychiatrists at a number of named medical schools and psychiatric hospitals. He says:-

"I understand the situation for mentally ill prisoners in Ghana's prisons is dire. Prisoners receive no mental health services whatsoever in prison. Prisoners do not receive psychiatric treatment or medication in prison unless their symptoms are so severe as to require hospitalisation. Severely mentally ill prisoners are institutionalised at Ankaful psychiatric hospital where committed individuals are often warehoused without appropriate care or case review for months or even years… For those mentally ill prisoners whose symptoms are not severe enough to require institutionalisation, they never receive any psychiatric or medical treatment for their mental health problems. There are no psychiatrists, psychiatric nurses or psychologists on staff in Ghana's prisons, and no psychiatrists, psychiatric nurses or psychologists come to Ghanaian prisons to treat inmates. A 2012 Amnesty International report on the Ghanaian prison system that I endorse simply found that mental health services in Ghanaian prisons are a completely neglected part of prison health and care. I am not aware of any psychiatric services being available to any prisoners at any prisons, including Nsawam prison and Ankaful prison."

42. Dr Doku concludes that Mr Gambrah, if returned to Ghana, will not receive any psychiatric treatment for his post-traumatic stress disorder, particularly if he is imprisoned, unless he could pay privately for treatment and for payment to police and prison officials to ensure access to that treatment. He says:-

"If imprisoned in Nsawam prison, Ankaful prison, or any other prison in Ghana, Mr Gambrah is assured to receive no psychiatric or medical treatment for his post-traumatic stress disorder, unless his symptoms are so severe as to require institutionalisation at Ankaful psychiatric hospital, where he would languish for years without proper case review and appropriate treatment."

43. In the light of that evidence, it is surprising to see that the District Judge says there was no evidence.

She makes no proper reference whatever to the evidence which I have recorded. That evidence had to be weighed against the evidence of Mr Aryeetey, a retired Supreme Court Judge, whose experience is described by the former Justice as:-

"As a High Court Judge I did jury trials for a total period of three years, during which I completed more than 25 trials with a jury."

He then reaches his conclusions as a result of a day's visit paid to Ankaful.

44. Although the judge is criticised on the basis that he was a member of the Supreme Court that upheld the lawfulness of the mandatory death penalty, that does not seem to me to detract from his evidence as to the conditions in prison and as to mental health care. But I do not see how he can be described as an expert at all in relation to the provision of mental health facilities in Ghana, still less as to the provision of those facilities in Ankaful prison. The District Judge does not explain how it was she came to prefer that evidence to the detailed evidence of Dr Doku.
45. I must recall that in the appeal, as opposed to the cross-appeal, Mr Gambrah's mental condition and the prospect of it being ameliorated at Ankaful, are relevant to the impact of his detention on death row without any formal commutation of his sentence with the hope only that at some stage he will be released by the President as an act of mercy. Given his undisputed mental condition, and, to put it at its lowest, the doubts as to the adequacy of mental health treatment, I am convinced that despite the assurance given, Mr Gambrah would face treatment which would be inhuman and degrading to him. With his state of health, the assurances given would not ameliorate the suffering caused by his detention on death row without any formal substitution of a sentence of life imprisonment. Moreover, even if he were able to gain confidence from that assurance, the effect on him of a life sentence, without knowing when or if he might be released, or the circumstances in which he might gain that release, would create unacceptable suffering contrary to Article 3.
46. Despite accepting evidence as to mental treatment in hospital, and accepting the assurance that he would not be executed, the judge came to a similar conclusion. Having accepted that there was no real risk that the death sentence would be carried out, she asked whether the mandatory death penalty "per se" was inhuman and degrading treatment or punishment. She noted:-

"The vagueness of the assurance [of mercy] with no description of how the death penalty will be commuted to imprisonment, the concern that there is no clear decision or rationale or motive to change the mandatory death penalty regime in Ghana, the unease about the personal commitment of the Ghanaian minister to the assurance, are concerns, which I feel must be concerns which would be multiplied for Mr Gambrah, and it is the effect on him which is fundamental to the issue of inhuman and degrading punishment."

She concluded that the mandatory death penalty in this case is inhuman or degrading punishment (paragraph 77c). She recorded the medical evidence that he would become desperately ill again and said that "insufficient information" from the requesting state as to conditions on death row in the year spent there by numerous convicted defendants:-

"lead me to the conclusion that without such evidence it is a foreseeable consequence that there is a real risk that Mr Gambrah's Article 3 rights would be breached in the circumstances." [82]

47. I agree that the likely impact on Mr Gambrah of the circumstances in which he will be held on death row means that extradition would breach his Article 3 rights. To expose him to such circumstances with no clarity as to his status on death row, the circumstances in which he would be held, and as to when and in what circumstances the limbo might end, all combine to demonstrate the breach of Article 3.
48. In those circumstances, it is unnecessary to consider whether the same conclusion would be reached absent this requested person's mental state. But I have grave doubts as to whether it would be consistent with Article 3 to extradite, in circumstances where the nature of the requested person's sentence in the light of an assurance that the death penalty will not be carried out, remains so uncertain. It is not even equivalent to the mandatory life imprisonment subject to reduction by the Governor in Missouri. Mr Knowles QC argued in addition that the fact that the requested person would have no opportunity to make any submissions by way of mitigation, if convicted, relating to the circumstances of the offence or his own personal circumstances, constitutes a flagrant breach of Article 6. Again, I need reach no conclusion, although it seems to me the inability to make any submission, but merely to be expected to wait upon the recommendation of mercy of the President, is likely to amount to a flagrant breach of Article 6.
49. There remains the question of the cross-appeal. In the light of the conclusion I have reached it is, again, strictly unnecessary to decide the cross-appeal. But in the event it does become necessary, I should reach a conclusion as to s.91.

Cross-Appeal

50. Section 91 requires the judge to order a person's discharge in circumstances where his mental condition is such that it would be unjust or oppressive to extradite him (s.91(2)). In the light of the evidence of Dr Doku, in my judgement, the judge was wrong to accept that there would be any adequate treatment of Mr Gambrah's mental health in Ankaful prison, let alone sufficient to ameliorate the effects of his extradition on that health. This court must be reluctant to interfere without any factual conclusion of a District Judge. But, particularly in the light of the disparity between the qualifications of the former judge and the doctor, it seems to me there is no real evidence that Mr Gambrah would receive the treatment he requires, were he to be extradited to Ankaful prison. The former Justice does not begin to deal with the state of mental health treatment in Ghana. No one has suggested that the availability of medication, free on prescription, to which the District Judge refers, would be sufficient. In those circumstances, had it been necessary to do so, I would have concluded that it was oppressive to extradite Mr Gambrah for the purposes of s.91 of the 2003 Act.
51. The only other ground of cross-appeal, apart from that which I have referred to in paragraph 48 of this judgment, related to the admissibility of a witness statement noting the number of the car used in the murder. This linked the requested person to the murder, since there was evidence he had hired the car with that registration. That a car with that registration was used for purposes of the murder is asserted by a security man working outside the nightclub on 12 October 2007, Mr Musah Rahman. He made a statement two years after the event but records that he took note of the registration number as the car sped away. The statement is criticised because it contains no declaration of its truth. For the purposes of s.84, there is no requirement that the statement should contain such a statement of truth. The requirements are identified in s.84(2). It must be a statement by a person to a police officer, or another person charged with a duty of investigating offences, (s.84(2)(a)) and direct oral evidence of the fact must be admissible, (s.84(2)(b)). In deciding whether to treat the statement as admissible evidence of fact, the judge must have regard to those matters identified in s.84(3). There is no requirement of a formal statement of truth in contrast to the previous requirements under the Extradition Act 1989. As this court explained in Patel v the Government of India [2013] EWHC 819 (Admin), ss.84(2)-(4) of the 2003 Act extend the scope of admissible evidence in line with the modern domestic approach to the admissibility of hearsay evidence (paragraph 45). A contemporaneous note made of a registration number of a car, even though it was not sworn to at the time, or even thereafter, is admissible, provided the District Judge takes into account the factors identified in those sub-sections. In my view, the point as to the admissibility of the evidence is without substance and the judge was entitled to conclude that a prima facie case had been made against Mr Gambrah. But, for the reasons I have given, I would dismiss the appeal.
52. Since drafting this judgment, the Court's attention has been drawn to the ruling of UNHRC in Dexter Johnson v Ghana (adopted 110^th Session 10 - 28.3.2014) and R (oao Aswat) v SSHD and USA [2014] EWHC 1216 (Admin). Neither seems to me to call for any revision in the views I have reached.

Mr Justice Silber:

53. I agree.