Government of the Republic of South Africa v Dewani

For the purposes of Extradition Act 2003, a person who is presently unfit to plead remains an accused where there is a real prospect that the unfitness is not permanent and the requesting state genuinely seeks prosecution. The possibility of a later fitness-to-plead process does not alter the criminal purpose of the request.

Under section 91, the court must examine all the circumstances, including present and future health consequences, the requesting state’s procedures and safeguards, and the likelihood of permanent unfitness. Where permanent unfitness is a realistic possibility, extradition may be unjust and oppressive unless the requesting state gives an undertaking securing return after a reasonable period if trial is not realistically possible.

The Government of the Republic of South Africa sought the appellant’s extradition to face a murder charge. The Senior District Judge initially ordered extradition, but the High Court directed reconsideration under section 91 of the Extradition Act 2003 because of the appellant’s mental condition. On reconsideration, the Senior District Judge concluded that section 91 was no longer satisfied.

The Divisional Court reopened the appeal to determine two questions: whether a person currently unfit to plead remained an accused for section 70(4), and whether extradition could nevertheless be unjust or oppressive under section 91 if future fitness was uncertain.

1. Section 70(4). The appeal failed on the first question. Fitness-to-plead issues arise within criminal proceedings instituted for prosecution, determination of guilt and punishment. A possible later inquiry into unfitness, or into whether the accused did the acts charged, does not substitute an impermissible civil purpose for the criminal purpose of the extradition request. A person remains an accused where there is a real prospect that present unfitness is not permanent. The inquiry requires an intense focus on the facts and the purpose of the request.
2. The South African fitness procedure was distinct from criminal trial and detention following a finding that the accused did the act was civil rather than punitive. That did not itself make the procedure unfair or take the request outside section 70. The South African courts were the proper forum to determine fitness and related factual questions.
3. Section 91. The court must consider the circumstances at the time of the request and what may happen after extradition. Relevant matters include the effect on health, age, the risk of deterioration, safeguards in the requesting state and the prospect of a fair process. There are no hard and fast rules. Extradition would ordinarily be oppressive where it was clear that the requesting court would find the person unfit to plead.
4. Where a person has no material connection with the requesting state, is currently unfit, has an uncertain prognosis and may remain permanently unfit, the availability of an undertaking to permit return must be considered. Without such an undertaking, extradition in this case would be unjust and oppressive. If South Africa gave an undertaking allowing return after a reasonable period unless a realistic prospect of trial existed, and in any event during an inquiry into whether the appellant did the act, extradition would not be oppressive or unjust.
5. The court refused further adjournment. Expedition was required, provided proper protection was secured by the undertaking.

1. High Court (Administrative Court): In [2012] EWHC 842 (Admin), the court rejected the prison-conditions objections but held under section 91 of the Extradition Act 2003 that extradition would then be unjust and oppressive because of the appellant’s mental condition. The matter was remitted for reconsideration.
2. Senior District Judge: On 24 July 2013, after further medical evidence, the judge concluded that the section 91 condition no longer remained satisfied.
3. High Court (Administrative Court): The present court dismissed the section 70(4) challenge, but held that extradition would be unjust and oppressive without an appropriate return undertaking.