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07/24/2014

UK High Court of Justice says unlawful to extradite mentally ill man facing mandatory death penalty in Ghana

Our guest blogger is Zoe Bedford, Casework Lawyer at Reprieve.  Julian Knowles QC (Matrix Chambers) along with Rachel Barnes (Three Raymond Buildings) acted for Mr Gambrah, with the support of the Death Penalty Project and Reprieve.

Lord Justice Moses, sitting in the High Court in London, has ruled that the extradition of a mentally ill 34 year-old British father would breach his rights under Article 3 of the European Convention on Human Rights, which prohibits inhuman and degrading treatment, regardless of whether a moratorium is in place or not. Frank Gambrah, who spent over two years in prison awaiting the outcome of the extradition proceedings, was granted immediate release on 16 May 2014, when the judgment was handed down.

In August 2007, Mr. Gambrah, a British national, was accused of a murder outside a nightclub in Ghana’s capital Accra.  Unaware of the charges against him, Mr. Gambrah returned to the UK later in the year and was only arrested in 2009, when he arrived at Kotoka International Airport to visit his son, who was unwell. He was released on bail in February 2010 and returned to the UK.  In February 2012, five years after the murder took place, the Ghanaian Government requested the UK Government extradite Mr. Gambrah to Ghana to face trial for the alleged offence.

Ghana has not carried out any executions since 1990 but the death sentence remains mandatory for murder. The Ghanaian government offered various assurances that the death penalty would not be carried out, but in light of the mandatory nature of the death penalty, was unable to offer assurances that Mr. Gambrah would not be sentenced to death. It was also unable to explain when, how or by whom Mr. Gambrah’s sentence would be officially commuted. Mr. Gambrah was suffering from post-traumatic stress disorder, and the Court agreed that there were serious doubts as to the ability of the Ghanaian prison system to provide adequate mental health treatment for Mr. Gambrah.

The key question for the Court, therefore, was whether the circumstances of Mr. Gambrah’s imprisonment in Ghana would constitute inhuman and degrading treatment contrary to article 3, given that, if convicted, he would be sentenced to death, even with the assurances he had that he would not be executed and the de facto moratorium in Ghana.

Ultimately the Court found that it would be inhuman and degrading to expose someone with Mr. Gambrah’s mental health problems to the legal limbo of being sentenced to death without knowing when, whether or how his sentence would ever be commuted.

Lord Justice Moses went on to express grave doubts as to whether an extradition should go ahead in any case where the nature of a person’s sentence is so uncertain, as to do so would also amount to inhuman and degrading treatment. In his view, sentencing a person to death without taking into account the particular facts of the offence or his own personal circumstances and leaving him to rely only on the mercy of the president, was also in breach of the right to a fair trial, and should itself present a further barrier to extradition.

In addition, under section 91 of the Extradition Act 2003 the Court considered it to be unjust and oppressive to extradite Mr. Gambrah in light of his poor mental health and the lack of adequate psychiatric treatment in Ghanaian prisons.

The requesting state need only prove a prima facie case against an individual according to UK extradition laws, an extremely easy standard to satisfy and requiring little analysis of the case against the accused. However, there is compelling evidence that Mr. Gambrah was innocent of the murder, with alibi witnesses coming forward and the key prosecution witnesses since admitting under oath that they had been tortured and coerced into providing false statements to the police. Mr. Gambrah himself was beaten around the head so badly that his eardrum burst and he has suffered lasting hearing damage. Under such circumstances, it is hard to imagine that Mr. Gambrah would ever have been given a fair trial had he been extradited to Ghana, and it is surprising that his extradition could ever have been contemplated.

Under English law, the Secretary of State may approve the extradition of a suspect to face the death penalty on the most superficial evidence if he receives assurances that he will not actually be executed. It is to the credit of the Courts that such a potential miscarriage of justice which would have led to inhuman suffering of a mentally ill man has been averted in this case. But extradition laws in the UK still fall short of offering the level of protection against the death penalty that one would expect from a state claiming to promote worldwide abolition of the death penalty.

There are over 130 prisoners under sentence of death in Ghana, a number of whom have been there for ten years or more. There is a virtually world-wide consensus against the use of the mandatory death penalty, even in countries where the death penalty is in use, yet Ghana stands as one of a tiny number of countries to have retained the mandatory death penalty for murder. It is essential that abolitionist states do not unintentionally legitimise the death penalty by allowing extradition to retentionist states under any circumstances.

    -- Zoe Bedford

 For further information, see Death Penalty Worldwide’s report  on capital punishment in Ghana here