Donald v Republic of South Africa

In an extradition case engaging Article 3, assurances from a requesting state must be given in good faith, provide an objective basis for believing that they will be fulfilled, be capable of verification, and, if fulfilled, prevent treatment contrary to Article 3.

Fresh evidence on appeal is admitted only exceptionally. It must ordinarily have been unavailable at the extradition hearing and must be decisive. Evidence of isolated prison deficiencies does not establish a real risk of Article 3 ill-treatment where the evidence does not show systemic failure and the assurances are tailored to the requested person’s needs.

The appellant appealed under section 130 of the Extradition Act 2003 against a decision of the Deputy Senior District Judge sending the case to the Secretary of State under section 87(3). The request concerned historic rape charges in South Africa.

The District Judge had accepted assurances concerning the appellant’s accommodation, wheelchair access, sanitation, electricity, washing facilities and medical care. On appeal, the appellant relied on fresh evidence alleging that assurances given in an earlier South African extradition case had been breached. The central issue was whether that evidence created reason to doubt that the assurances in the appellant’s case would protect his Article 3 rights.

1. Fresh evidence. The court applied the established high threshold for fresh evidence on an extradition appeal. Evidence is ordinarily unavailable only where it did not exist or could not have been obtained with reasonable diligence. Even for a defendant relying on human rights, the evidence must be decisive. Despite repeated procedural breaches, the court exceptionally admitted the evidence because the respondent did not seek an adjournment and the Article 3 argument depended substantially upon it.
2. Assurances. The applicable requirements were that the assurances, if fulfilled, would prevent Article 3 treatment; that they were given in good faith; that there was a signed or objective basis for believing they would be fulfilled; and that fulfilment could be verified.
3. Assessment of the earlier case. The evidence did not establish that the earlier prisoner had been denied a single cell in breach of the relevant assurance. There had been deficiencies concerning water pressure, hot water and sanitation, but no reliable evidence of a continuing or systematic failure. Medical care was available, and arrangements could be made for emergencies and dental treatment. Complaints about food were irrelevant to the assurances and fell far short of the Article 3 threshold.
4. Application to the appellant. The appellant would not be held in either prison where the earlier prisoner had been detained. The assurances were specifically directed to his diabetes and wheelchair needs, and further evidence indicated that the judicial prison inspectorate would monitor compliance. Isolated breakdowns did not demonstrate the systemic failure required to establish a real risk of Article 3 ill-treatment.
5. The appeal was dismissed.

1. High Court (Administrative Court): the appeal under section 130 of the Extradition Act 2003 was dismissed.
2. Deputy Senior District Judge: on 8 April 2016, the case was sent to the Secretary of State under section 87(3) of the Extradition Act 2003.