Republic of South Africa v Dewani

Under Extradition Act 2003, section 91 requires a fact-sensitive assessment of whether extradition would be unjust or oppressive. Ordinary stress and hardship do not suffice. The appellate court must decide that issue for itself, while giving proper respect to the first-instance findings.

Reliable, specific detention assurances may remove a real risk under Articles 2 and 3 where the requesting state will honour and monitor them. However, where immediate extradition would materially endanger a severely unwell person’s recovery and trial fitness, the court may adjourn the extradition hearing rather than order discharge, if recovery is likely within a reasonable time.

Republic of South Africa v Dewani concerned an appeal against the Senior District Judge’s rejection of objections to extradition to South Africa on charges arising from the death of the appellant’s wife. The judge had sent the case to the Secretary of State, who ordered extradition.

The appellant had severe depression and post-traumatic stress disorder, was unfit to plead, and was assessed as presenting a high risk of suicide. He contended that prison conditions, violence and HIV/AIDS risks, inadequate psychiatric treatment, and his mental condition would breach Articles 2 and 3. He also relied on section 91 of the Extradition Act 2003.

The central issue was whether his condition made immediate extradition unjust or oppressive, and whether the South African assurances and facilities removed the asserted Convention risks.

1. The appeal was allowed to the extent that the extradition hearing should have been adjourned under section 91(3)(b) of the Extradition Act 2003. The court held that the Senior District Judge had erred by not adjourning the hearing while the appellant recovered.

2. The court upheld the rejection of the Articles 2 and 3 challenge based on HIV/AIDS infection and violence from other prisoners. The South African Government’s specific undertakings for single-cell detention, coupled with monitoring by the Inspectorate, could properly be accepted. South Africa’s record of democracy, human rights and the rule of law was material to that conclusion. The assurances met the conditions identified in RB(Algeria) v Secretary of State [2010] 2 AC 110.

3. Under sections 103 and 104, the appellate court had to decide for itself whether the statutory condition in section 91 was met. It should accord great respect to the Senior District Judge’s factual findings, but could depart from the conclusion on the evidence.

4. The statutory words unjust or oppressive supplied Parliament’s own, fact-sensitive test. They required consideration of all relevant circumstances. Ordinary extradition stress and hardship were insufficient. The court rejected formulaic references to a high threshold or to the gravity of the charge, as such comparisons distract from the statutory question. The construction was consistent with Kakis v Government of the Republic of Cyprus [1978] 1 WLR 799 and Gomes and Goodyear v Trinidad [2009] 1 WLR 1038.

5. Discharge was not appropriate because the evidence indicated recovery within a reasonable time. But immediate extradition was unjust and oppressive. The psychiatric evidence showed a real and significant risk to life, likely deterioration, impaired prospects of becoming fit to plead, and uncertainty about the treatment and protection available on return. Keeping the appellant in his present treatment regime increased the prospects of an earlier effective trial.

6. The court left unresolved the future adequacy of psychiatric facilities and the suicide-related Articles 2 and 3 issues. Those matters depended on the appellant’s condition when the resumed extradition hearing took place and could then be raised again.

• High Court (Administrative Court): Allowed the appeal to the extent that the Senior District Judge should have adjourned the extradition hearing under section 91(3)(b) of the Extradition Act 2003: [2012] EWHC 842 (Admin).

• City of Westminster Magistrates’ Court: The Senior District Judge dismissed the objections to extradition on 10 August 2011 and sent the case to the Secretary of State.

• Secretary of State: Ordered the appellant’s extradition on 28 September 2011.