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After an astonishing series of legal manoeuvres over several years, a British court finally allowed Shrien Dewani to be extradited to South Africa late last month.
The drama has included medical evidence that was literally incredible with claims about his health that don't match normal clinical or scientific experience but which never received proper professional expert medical or scientific scrutiny and cross-examination.
This was combined with legal and clinical decisions that seemed remarkably accommodating towards the rich young accused, to a degree not seen in any other extradition case of which I can find trace, and shockingly disregarding the rights and pain of the family of the murdered woman.
There is a seriously risky component to the latest decision, but otherwise it is to be welcomed.
A panel of three judges headed by the Lord Chief Justice, decided that extradition itself at this stage would not be "unjust and oppressive", it would be so if there was a possibility " that he might remain permanently unfit without considering whether an undertaking should be required from the requesting state."
The learned judge seemed to feel it was essential and fair to ask South Africa to promise that if Dewani remains considered to be unfit to stand trial, "he will be free to return to the UK" presumably to return to the mental hospital where he has been living for so long, under a compulsory order under the Mental Health Act, for continuing treatment.
I don't see this in the text we have received of the decision, but it can surely be considered that he should be set entirely free under those circumstances.
Prosecutors have 18 months in which to find Dewani fit to stand trial for his charges. This will depend almost entirely on his mental state.
It also seems to imply that if the SA court finds him unfit for trial, but starts to consider his guilt in terms of the accusations, he should also be free to return to Britain.
The risks
Now here are some of the risks. He is currently detained in South Africa at the Valkenberg mental hospital, and thus receiving compulsory observation and treatment.
What must be avoided at all costs, is essentially allowing Dewani himself (as the British Courts have done this far) to decide when he will admit to feeling well enough to stand trial.
What is needed here are convincingly expert assessments, obviously independent of any influence by himself or his family, in which the many anomalies in the medical views reported to the British Courts are reviewed. The experts should also seriously reconsider the diagnoses and treatments he has received; and press ahead, if needed at all, with proper treatment, which the timid British doctors seem to have been so reluctant to do.
The decision on whether he is fit to stand trial must not depend on whether he consents to reveal that he is well, or to be diverted if he chooses to simulate or exaggerate his degree of disability. He must be carefully assessed by someone with expertise in assessing the possibilities of simulation and/or exaggeration in people facing court cases, rather than by folks eager to believe his every assertion or enacted sign without doubt or proper testing.
Whatever happened to the odd pair of "expert witnesses", claiming to be independent while they were actually partners in a company providing expert evidence effectively for sale to lawyers, after it was discovered they had failed to disclose this peculiar arrangement to the Court? Has their conduct, widely criticised at the time as unprofessional, simply been conveniently overlooked?
What does ‘fit to stand trial’ really mean?
The South African courts must also avoid the absurd assumption the British Courts seem to have made, that someone is eternally unfit to stand trial if they have any psychiatric diagnosis or symptoms. No illness in itself, other than perhaps advanced dementia or perilously fragile physical illness, automatically makes someone unfit to stand trial.
It is not required that the person be totally free of any possible signs of illness or any symptoms whatsoever - if it were thus, very few people would ever be found fit to stand trial. It does not and should not matter at all whether or not Dewani, now or later, has fully and totally recovered from depression or PTSD.
What matters is something we have not properly heard about thus far in the case, the results of a comprehensive medico-legal assessment, properly and expertly cross-examined, of the essential psychological issues relevant in standing trial - whether the person is able to understand the charges against him, and what a court and trial is, and broadly how they work, and able to give general instructions to his lawyer.
These basic abilities are rarely impaired significantly in depression or PTSD sufferers, and should surely be unimpaired by now. In fact if they have truly, according to expert assessment, been significantly impaired thus far, how have his lawyers been able to conduct all these court cases and appeals and hearings without his proper participation and if he was truly incompetent?
Incompetence cuts both ways. You cannot be conveniently competent enough to appeal for what you want, while too incompetent to stand trial.
(Professor M.A. Simpson, aka Cybershrink, January 2014. Updated May 2014)
The drama has included medical evidence that was literally incredible with claims about his health that don't match normal clinical or scientific experience but which never received proper professional expert medical or scientific scrutiny and cross-examination.
This was combined with legal and clinical decisions that seemed remarkably accommodating towards the rich young accused, to a degree not seen in any other extradition case of which I can find trace, and shockingly disregarding the rights and pain of the family of the murdered woman.
There is a seriously risky component to the latest decision, but otherwise it is to be welcomed.
A panel of three judges headed by the Lord Chief Justice, decided that extradition itself at this stage would not be "unjust and oppressive", it would be so if there was a possibility " that he might remain permanently unfit without considering whether an undertaking should be required from the requesting state."
The learned judge seemed to feel it was essential and fair to ask South Africa to promise that if Dewani remains considered to be unfit to stand trial, "he will be free to return to the UK" presumably to return to the mental hospital where he has been living for so long, under a compulsory order under the Mental Health Act, for continuing treatment.
I don't see this in the text we have received of the decision, but it can surely be considered that he should be set entirely free under those circumstances.
Prosecutors have 18 months in which to find Dewani fit to stand trial for his charges. This will depend almost entirely on his mental state.
It also seems to imply that if the SA court finds him unfit for trial, but starts to consider his guilt in terms of the accusations, he should also be free to return to Britain.
The risks
Now here are some of the risks. He is currently detained in South Africa at the Valkenberg mental hospital, and thus receiving compulsory observation and treatment.
What must be avoided at all costs, is essentially allowing Dewani himself (as the British Courts have done this far) to decide when he will admit to feeling well enough to stand trial.
What is needed here are convincingly expert assessments, obviously independent of any influence by himself or his family, in which the many anomalies in the medical views reported to the British Courts are reviewed. The experts should also seriously reconsider the diagnoses and treatments he has received; and press ahead, if needed at all, with proper treatment, which the timid British doctors seem to have been so reluctant to do.
The decision on whether he is fit to stand trial must not depend on whether he consents to reveal that he is well, or to be diverted if he chooses to simulate or exaggerate his degree of disability. He must be carefully assessed by someone with expertise in assessing the possibilities of simulation and/or exaggeration in people facing court cases, rather than by folks eager to believe his every assertion or enacted sign without doubt or proper testing.
Whatever happened to the odd pair of "expert witnesses", claiming to be independent while they were actually partners in a company providing expert evidence effectively for sale to lawyers, after it was discovered they had failed to disclose this peculiar arrangement to the Court? Has their conduct, widely criticised at the time as unprofessional, simply been conveniently overlooked?
What does ‘fit to stand trial’ really mean?
The South African courts must also avoid the absurd assumption the British Courts seem to have made, that someone is eternally unfit to stand trial if they have any psychiatric diagnosis or symptoms. No illness in itself, other than perhaps advanced dementia or perilously fragile physical illness, automatically makes someone unfit to stand trial.
It is not required that the person be totally free of any possible signs of illness or any symptoms whatsoever - if it were thus, very few people would ever be found fit to stand trial. It does not and should not matter at all whether or not Dewani, now or later, has fully and totally recovered from depression or PTSD.
What matters is something we have not properly heard about thus far in the case, the results of a comprehensive medico-legal assessment, properly and expertly cross-examined, of the essential psychological issues relevant in standing trial - whether the person is able to understand the charges against him, and what a court and trial is, and broadly how they work, and able to give general instructions to his lawyer.
These basic abilities are rarely impaired significantly in depression or PTSD sufferers, and should surely be unimpaired by now. In fact if they have truly, according to expert assessment, been significantly impaired thus far, how have his lawyers been able to conduct all these court cases and appeals and hearings without his proper participation and if he was truly incompetent?
Incompetence cuts both ways. You cannot be conveniently competent enough to appeal for what you want, while too incompetent to stand trial.
(Professor M.A. Simpson, aka Cybershrink, January 2014. Updated May 2014)
