“i. … I accept Dr. Picchioni and Dr. Poole’s evidence that Mr. Lomas was suffering from moderate depression at the time of the hearing. That is consistent with the letter from Dr. Murray-Gane of 7 November that details events following the hearing. I also accept that he will need ongoing treatment for his depression and that his extradition would lead to an elevated risk of suicide and appropriate close monitoring will be needed should he be imprisoned in South Africa in order to ensure he does not harm himself or attempt suicide. ii. I have noted the difficulty in characterising the incidents in which the requested person walked out into a busy road on two occasions in the past as being suicide attempts, for the reasons I have given above. However, Dr. Picchioni did characterise these incidents as suicide attempts and both psychiatrists agreed that the requested person had made plans to take his own life that go beyond suicidal ideation. iii. However, whether or not those incidents are characterised as suicide attempts, and bearing in mind the context of Mr. Lomas’ in-patient admission following the hearing, does not alter my conclusion on this ground. I am satisfied that appropriate monitoring and preventative measures will be put in place to properly manage any risk of suicide in the event of the requested person’s surrender to South Africa. The South African authorities have already taken steps to remove ligature points from the cell in which it is proposed to hold him. They will provide regular monitoring whilst he is in his cell. He will be able to receive appropriate mental health treatment in the prison in the form of talking therapies and will also be able to receive treatment at the nearby hospital should he require it. Those steps demonstrate a positive and engaged attitude aimed at ensuring that the requested person is not able to harm himself or take his own life whilst detained in the unit where he will be held. iv. The evidence before me is that, both before the extradition hearing and following his discharge from a period of voluntary in-patient admission, Mr. Lomas is not receiving any treatment for his mental health other than medication and some talking therapies. There is no evidence that his condition is so severe at present as to remove the impulse not to commit suicide. While it is possible that that his ability to control that impulse might be removed in future if his mental health deteriorates, I cannot say that this risk will crystalise. In any event, I accept that proper mental health treatment is available to him in the JCC in the event of his extradition and that, if necessary, he will receive treatment in the nearby hospital. v. In those circumstances, notwithstanding the level of the assessment of the risk that the requested person poses, I do not find that he will succeed in committing suicide whatever steps are taken. In particular, the availability of treatment for his mental health, together with an awareness of the risk that he poses to himself, leading to regular observation in prison leads me to conclude he will not succeed in committing suicide whatever steps are taken. vi. His mental condition is not currently such that it removes his capacity to resist the impulse to commit suicide and all that can be said is that it is possible that this may happen in the future. vii. In any case, I am satisfied that there are appropriate arrangements in place both in this jurisdiction and in custody in South Africa to provide Mr. Lomas with appropriate treatment for his mental health, including in hospital if required so as to reduce the risk of self-harm and suicide that he might otherwise pose. I do not find that the evidence relied upon by the defence including the evidence of Ms. Costa Ramos and Dr. Poole undermines or negates the assurances that have been given, which I accept, nor, given those assurances, that conditions in prison or in hospital in South Africa are such as to render his extradition oppressive.”
“What I am envisaging is that the Court will be able to consider, particularly with reference to Stages 1 and 2 These are references to the pre-transfer and transfer stages of an extradition case. and the latest evidence, questions as to: whether and to what extent the suicide risk arises by reason of extradition or independently of it; whether suicide would be a voluntary act; whether appropriate steps have been identified; and whether the risk is so high, whatever steps are taken, as to constitute oppression. The parties will want to ensure that all questions have, promptly and fully, been addressed.”
“91 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 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 that the condition in subsection (2) is no longer satisfied.”
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
“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.”
“In our judgment, to the extent that Turner proposition (4) adds anything to (3) and (5), its function is to indicate that in situations where the decision to commit suicide is voluntary, in the sense of being rational and thought-through, a finding of oppression should not be made… In particular, we would deprecate any attempt to introduce concepts of causation as are routinely applied in tort or contract: the fact that (in conventional causational terms) a person’s depression would be either a cause or even the dominant cause of a person’s decision to commit suicide does not mean or necessarily suggest that the act was not voluntary within the meaning of Turner proposition (4)… … In our judgment, Turner proposition (4) should be read in a common-sense, broad-brush way giving full effect to the question whether the act of suicide would be the person’s voluntary act. This approach does not demand proof of ‘impulse’ as that term is used by clinicians [128-9].”
“13. One aspect of this involves asking whether suicide would be ‘by reason of a mental condition removing the capacity to resist the impulse to commit suicide’’. Modi explains the difficulties with ‘impulse’ (§125), ‘capacity’ (§126) and ‘voluntary acts’ (§127), in the context of what clinicians would mean and recognise. In the present case, the Judge recorded the evidence of Dr Poole that the legal test of resisting the impulse to act is not a clinical one. Modi has identified a common sense broad-brush approach (§129), asking whether the decision to commit suicide is ‘voluntary, in the sense of being rational and thought-through’ (§128); ‘the person’s voluntary act’ (§129). This is notwithstanding that ‘many psychiatrists would have difficulty with the notion of ‘voluntary acts’ (Modi §127). Dr Hillier (6.6.24) says that suicidality as a ‘rational’ or ‘capacitous’ decision responding to adversity ‘is not current thinking within mental health circles, particularly when there is evidence of mental disorder known to predispose to suicidality as part of the psychopathological manifestation of the illness’. The Courts’s view in Turner (§§43 and 70) and evidently also Modi (§140) was that suicide would be a voluntary act. 14. Another aspect involves asking about suicide risk ‘whatever steps are taken’, where the Court is ‘satisfied that appropriate arrangements are in place’. This must include consideration of steps and arrangements in the UK (Stage 1) and for transfer (Stage 2). That makes the encapsulation: The question is whether, on the evidence, whatever steps are taken – and even if the Court is satisfied that appropriate arrangements are in place including 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. In the present case, as Dr Hillier points out, [the Respondent’s expert witness] Dr Picchioni told the Judge that the risk of suicide in the event of deterioration in the Appellant’s mental state ‘can potentially be managed but will likely require intensive and potentially restrictive intervention by prison and mental health services in order to successfully manage that risk’. As to the present position in the UK, Dr Hillier has identified appropriate arrangements. Steps and arrangements are described. In Turner, there was a ‘danger period’ which was ‘between the dismissal of the appeal and the appellant’s removal to the UK’ (§14). The requested person was on bail, and recent events included admission to hospital (§17) and to a psychiatric facility (§24). The Court ensured that it had information about what steps could be taken (§10), and was thus satisfied as to appropriate measures (§§39, 72).”
“(3) The application must— (a) specify the decision which the applicant wants the court to reopen; and (b) give reasons why— (i) it is necessary for the court to reopen that decision in order to avoid real injustice, (ii) the circumstances are exceptional and make it appropriate to reopen the decision, and (iii) there is no alternative effective remedy.” (a) specify the decision which the applicant wants the court to reopen; and (b) give reasons why— (i) it is necessary for the court to reopen that decision in order to avoid real injustice, (ii) the circumstances are exceptional and make it appropriate to reopen the decision, and (iii) there is no alternative effective remedy.”
“5.1 Mr Lomas will be searched and his luggage will be searched when the team of INTERPOL PRETORIA receive him at the airport. He will not be permitted to possess any objects that may pose a serious and obvious danger to himself. He will also walk through metal detectors at the airport. 5.2 The INTERPOL team will consist of 4 members of the South African Police Service. During the flight the INTERPOL members will sit around him in the transfer to South Africa. 5.4 Mr Lomas’ medication will be handed over to the accompanying doctor from South Africa and will be retained by the doctor and only the correct doses will be administered to him at the appropriate times. 5.5 Mr Lomas will be continuously monitored by the Interpol team during the flight and at all stages of the transfer from the United Kingdom until he is handed over to the investigating officer and his team, upon his arrival in South Africa. 5.4 On the Flight Mr Lomas will not be permitted to possess any objects that may pose a serious and obvious danger to himself. 5.5 On arrival in South Africa Mr Lomas will be handed over to the investigation officer Lt Col Derrick Du Plessis who will deal with his safe keeping in South Africa.”
“7.1 For any court appearances after the first appearance while Lomas is in custody he will be transported from the Correctional Facility to court and back to the Correctional Facility by at least three members of the South African Police Services from my office. 7.2 Lomas will at all times be under South African Police Services’ supervision when he is booked out from the Correctional Facility for court appearances.”
“5.1 In addition to the admission process set out in my affidavit dated22 March 2022 paragraphs 1.9 to 1.12 thereof, Michael Lomas will within 12 hours of his admission to JCC be assessed by a doctor and, if appropriate, be referred on an urgent basis to Chris Hani Baragwanath Hospital for an assessment of his physical and mental health. In those circumstances I would expect him to be assessed at the hospital within 24 hours of his admission at JCC. 5.2 All medical reports/records will be made available to the doctor from the Department of Correctional Services prior to Mr Lomas’ arrival at the Correctional Facility in preparation for the assessment.”
“7. Mr Lomas presented as suffering from a Severe Depressive Episode without Psychosis in the context of a Recurrent Depressive Illness at the time of my assessment. 8. Mr Lomas demonstrated an exceptionally high risk of completed suicide at the time of my assessment. 9. Whilst properly being a matter for the Court, I consider that Mr Lomas’ risk factors and vulnerabilities is at a very high risk of being overcome by his suicidal ideation in the near future. 10. I have made urgent contact with Mr Lomas’ NHS mental health team in order that they can also assess and manage his risk of completed suicide.”
“Mr Lomas has a wide range of reasons to be suicidal, if one were to argue that suicidality is a ‘rational’ or ‘capacitous’ decision and response to adversity (which is not current thinking within mental health circles, particularly when there is evidence of mental disorder known to predispose to suicidality as part of the psychopathological manifestation of the illness). I am also mindful of recognition that there is limited evidence in research to draw on about the interplay between extradition and mental health issues, which further adds to the difficulties of risk assessment in this challenging area.”
“Whilst the concept of an irresistible impulse may be something that is present for some at the time of carrying out the suicidal act for some people in some circumstances, this conceptualisation appears to neglect the reaching of thresholds and removal of protections that can happen progressively that mean an individual comes to a decision to end their life; the complexity of routes to suicide is reflected in the variety of theoretical models that exist both to attempt to assess suicide risk and to put into place preventative measures for suicidal people.”
“In Mr Lomas’ case, in my view the thresholds as demonstrated by the presence of risk factors and the cumulative impact of physical and psychosocial stressors is such that a critical point has been passed in terms of his likelihood of carrying out suicide. In my opinion, and in the context of the presence of a severe mental illness, namely a severe depressive episode, I do not consider it can be said that he has genuine voluntary control over his thoughts and acts as they pertain to suicide, this being a core feature of the mental disorder. I recognise that this is an exquisitely difficult judgement to make from a clinical perspective, and a good proportion of the completed suicides that occur amongst depressed people globally occur when this judgement has been incorrectly made, in retrospect; and it is impossible to know whether an individual would have in fact killed themselves when mental health services do intervene. The question as to whether Mr Lomas can resist the ‘suicidal impulse’ is ultimately a matter for the Court, but from a clinical perspective Mr Lomas appears to present in the worst mental state that he has done to date, and there are a wide range of reasons for this which are of genuine and imminent clinical concern.”
“It is only possible to say that Mr Lomas would continue to present with the same risk factors, just potentially in less comfortable surroundings and with less access to social support which he has in the UK. He would also have interruptions in his physical and mental healthcare provision, and would have a challenging custodial environment to adapt to with unknown consequences; it would appear a reasonable conclusion that such a situation would be detrimental on his mental health, but it is not possible to say with absolute certainty.”
“I remain concerned that Mr Lomas is presenting with a wide range of risk factors for completed suicide, and in addition there are developments in his mental state and circumstances that have further implications from a risk perspective, including that his support from his son appears to be being detrimentally affected by these proceedings, and results from his physical health investigations have demonstrated disease progression.”
“In summary, I considered at the time of my assessment that Mr Lomas’ risk of suicide remains extremely high and potentially imminent; I had no reason to consider that he was malingering this in the context of his clinical presentation and previous assessments.”
“… the reality of extradition would likely be a critical factor in terms of his risk of attempting and completing suicide being very high, as I think it would abolish any residual resilience that he currently has.”
“I struggle to answer this question from a clinical perspective, as I am aware the concepts differ in law. I am aware that under some circumstances decisions made capacitously by patients to refuse treatment which will result in the end of their lives can be regarded as voluntary. I do not consider that the situation whereby Mr Lomas were to decide to take his life could be regarded as a comparable situation, both in terms of circumstances in relation to health, or in the context of his clearly having a co-morbid depressive illness. As noted previously, it is well recognised that suicidal ideation and acts are features of a depressive illness, and Mr Lomas does have a depressive illness. In my view, it would follow that given the complexity of Mr Lomas’ physical and mental health risks of completed suicide in the context of a depressive illness, from a clinical perspective extradition would merely serve as a further dynamic factor to contribute to suicidal behaviour.”