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Shrien Dewani too ill to be extradited - lawyer
13 Dec 2011 at 15:58hrs | Views
London - The health, and the life, of British businessman Shrien Dewani will be at risk if he is extradited to South Africa to face allegations of masterminding the murder of his bride during their honeymoon, the London High Court was told on Tuesday.
The Press Association reports that care home owner Dewani, from Bristol, who denies any wrongdoing, is accused of arranging the contract killing of his wife Anni in Cape Town in November last year.
Britain's Home Secretary Theresa May signed an order for his extradition after District Judge Howard Riddle ruled at Belmarsh Magistrate's Court in south-east London in August that Dewani, 31, should be sent back to South Africa to stand trial.
On Tuesday, Clare Montgomery QC, appearing for Dewani, asked two judges to block the extradition order on the grounds that his mental health had deteriorated to the point where he was "too ill to be extradited" and was a suicide risk.
As family members looked on, Montgomery also argued he was at serious risk of violence if kept in custody in South Africa, including sexual violence, at the hands of other prisoners.
Anni Dewani, 28, from Sweden, was shot when a taxi the couple were travelling in was hijacked in Gugulethu.
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 township.
He and Shrien Dewani were ejected by the hijackers before Anni Dewani was driven away and shot.
Plea agreement
Tongo, who has admitted his part in the crime, claimed in a plea agreement with prosecutors that Shrien Dewani ordered the hijacking and paid for a hit on his wife.
Shrien Dewani, who has been diagnosed with severe post-traumatic stress disorder (PTSD) and severe depression, was not at Tuesday's hearing.
Montgomery 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 told Sir John Thomas, president of the Queen's Bench Division and Mr Justice Ouseley, that the businessman had always wished for a fair trial.
"However that is, at the moment, on the advice we have been given by those who are treating him, not possible."
His illnesses had begun to develop shortly after the murder of his wife and before he was accused of her murder.
In April this year he was sectioned under the 1983 Mental Health Act to a psychiatric unit for his own protection, and last month was re-sectioned for a further six months following a deterioration in his condition.
All the doctors who had examined him, including the expert instructed by the South African government, agreed that he was suffering from PTSD and depression, said Montgomery.
Limited assurances
In a hearing expected to last two days, she asked the High Court to discharge the extradition order, or adjourn its implementation.
She argued that District Judge Riddle had fallen into error when he accepted South African assurances that Shrien Dewani's life and health would not be endangered if he was sent back to South Africa.
She argued the limited assurances that were given were "incapable of fulfilment".
Montgomery told the court 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".
Tuesday's application is being opposed by the South African government.
Written statements before the court from Shrien Dewani's legal team say that his illnesses cannot be treated with anti-depressant medication because he suffers from a life-threatening drug reaction.
His recovery is likely to be "slow and unpredictable".
Suicide risk
They state he is being visually checked every 15-20 minutes at his psychiatric unit because he is a high suicide risk.
Montgomery told the judges that the risk would increase "to an unacceptable level" if he was extradited.
The suicide management capacity of the South African prison system was "inadequate", as had been admitted by the prisons inspector, she contended.
Experts also agreed that there was no evidence that the psychiatric hospital available to care for him could adequately treat his complex illnesses.
Extradition would be incompatible with articles 2 and 3 of the European Convention on Human Rights, which protect the right to life and prohibit inhuman and degrading treatment.
Montgomery said "explicit public hostility" towards him had been fanned by the South African police and prosecutors, and the authorities would not be able to provide sufficient protection.
Judge Riddle had wrongly relied on limited South African undertakings to protect his health, and no effective undertakings had been given to protect him from sexual violence or other violence at the hands of prisoners.
"It will not be consistent with humanitarian principle to send someone for extradition who is not fit to stand trial," Montgomery told the judges.
"Were Mr Dewani to be extradited today, according to English standards, he would not be fit to stand his trial."
'Unassailable'
She added: "We do submit it will always be unjust to extradite somebody who is unfit - no matter how serious the charge."
Hugo Keith QC, appearing for the South African government, described Judge Riddle's decision to allow extradition as "unassailable".
As members of both families sat at the back of the court, Keith said Dewani's case was considered with great care over seven days and took into account an exceptional level of detail.
The evidence before the judge demonstrated that South Africa, since the end of apartheid, had consistently upheld the rule of law and individual rights.
It was now a well-established democracy with a vibrant and free press and there was no proper basis to challenge the decision to extradite, either by referring to conditions in South African prisons or Dewani's mental health.
Keith said medical evidence suggested Dewani's mental illness was not permanent, and his condition fluctuated.
There appeared to have been one period of significant improvement in his mental condition.
The improvement now appeared to have been short-lived, but it showed the level of risk was not so high as to make extradition "unconscionable" or a breach of human rights.
The hearing continues.
The Press Association reports that care home owner Dewani, from Bristol, who denies any wrongdoing, is accused of arranging the contract killing of his wife Anni in Cape Town in November last year.
Britain's Home Secretary Theresa May signed an order for his extradition after District Judge Howard Riddle ruled at Belmarsh Magistrate's Court in south-east London in August that Dewani, 31, should be sent back to South Africa to stand trial.
On Tuesday, Clare Montgomery QC, appearing for Dewani, asked two judges to block the extradition order on the grounds that his mental health had deteriorated to the point where he was "too ill to be extradited" and was a suicide risk.
As family members looked on, Montgomery also argued he was at serious risk of violence if kept in custody in South Africa, including sexual violence, at the hands of other prisoners.
Anni Dewani, 28, from Sweden, was shot when a taxi the couple were travelling in was hijacked in Gugulethu.
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 township.
He and Shrien Dewani were ejected by the hijackers before Anni Dewani was driven away and shot.
Plea agreement
Tongo, who has admitted his part in the crime, claimed in a plea agreement with prosecutors that Shrien Dewani ordered the hijacking and paid for a hit on his wife.
Shrien Dewani, who has been diagnosed with severe post-traumatic stress disorder (PTSD) and severe depression, was not at Tuesday's hearing.
Montgomery 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 told Sir John Thomas, president of the Queen's Bench Division and Mr Justice Ouseley, that the businessman had always wished for a fair trial.
"However that is, at the moment, on the advice we have been given by those who are treating him, not possible."
His illnesses had begun to develop shortly after the murder of his wife and before he was accused of her murder.
In April this year he was sectioned under the 1983 Mental Health Act to a psychiatric unit for his own protection, and last month was re-sectioned for a further six months following a deterioration in his condition.
All the doctors who had examined him, including the expert instructed by the South African government, agreed that he was suffering from PTSD and depression, said Montgomery.
Limited assurances
In a hearing expected to last two days, she asked the High Court to discharge the extradition order, or adjourn its implementation.
She argued that District Judge Riddle had fallen into error when he accepted South African assurances that Shrien Dewani's life and health would not be endangered if he was sent back to South Africa.
She argued the limited assurances that were given were "incapable of fulfilment".
Montgomery told the court 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".
Tuesday's application is being opposed by the South African government.
His recovery is likely to be "slow and unpredictable".
Suicide risk
They state he is being visually checked every 15-20 minutes at his psychiatric unit because he is a high suicide risk.
Montgomery told the judges that the risk would increase "to an unacceptable level" if he was extradited.
The suicide management capacity of the South African prison system was "inadequate", as had been admitted by the prisons inspector, she contended.
Experts also agreed that there was no evidence that the psychiatric hospital available to care for him could adequately treat his complex illnesses.
Extradition would be incompatible with articles 2 and 3 of the European Convention on Human Rights, which protect the right to life and prohibit inhuman and degrading treatment.
Montgomery said "explicit public hostility" towards him had been fanned by the South African police and prosecutors, and the authorities would not be able to provide sufficient protection.
Judge Riddle had wrongly relied on limited South African undertakings to protect his health, and no effective undertakings had been given to protect him from sexual violence or other violence at the hands of prisoners.
"It will not be consistent with humanitarian principle to send someone for extradition who is not fit to stand trial," Montgomery told the judges.
"Were Mr Dewani to be extradited today, according to English standards, he would not be fit to stand his trial."
'Unassailable'
She added: "We do submit it will always be unjust to extradite somebody who is unfit - no matter how serious the charge."
Hugo Keith QC, appearing for the South African government, described Judge Riddle's decision to allow extradition as "unassailable".
As members of both families sat at the back of the court, Keith said Dewani's case was considered with great care over seven days and took into account an exceptional level of detail.
The evidence before the judge demonstrated that South Africa, since the end of apartheid, had consistently upheld the rule of law and individual rights.
It was now a well-established democracy with a vibrant and free press and there was no proper basis to challenge the decision to extradite, either by referring to conditions in South African prisons or Dewani's mental health.
Keith said medical evidence suggested Dewani's mental illness was not permanent, and his condition fluctuated.
There appeared to have been one period of significant improvement in his mental condition.
The improvement now appeared to have been short-lived, but it showed the level of risk was not so high as to make extradition "unconscionable" or a breach of human rights.
The hearing continues.
Source - Sapa
