Richard John Payne v Government of Republic of South Africa

On a renewed application for permission to appeal in extradition proceedings, the appellate test is whether the district judge arguably reached the wrong decision or whether fresh evidence could have led to discharge.

Permission may be granted on an abuse-of-process ground where subsequent foreign appellate authority materially changes the legal position concerning the validity of the extradition request. Challenges based on prison conditions require careful scrutiny of the reliability and quality of assurances, assessed individually, collectively and cumulatively. A fugitivity challenge is fact-sensitive and turns on whether the requested person knowingly placed himself beyond the reach of the relevant criminal justice system.

The applicant faced extradition to South Africa to stand trial for numerous offences. The district judge rejected challenges based on fugitivity and the passage of time under section 82 of the Extradition Act 2003, Article 3 ECHR, and abuse of process. The Secretary of State ordered extradition.

On a renewed application, the applicant relied on fresh evidence concerning a subsequent decision of the Supreme Court of Appeal of South Africa in Schultz, which had overturned the first-instance decision and held that the power to request extradition vested in the Minister of Justice. The central questions were whether the proposed grounds were reasonably arguable and whether the fresh evidence could have led to discharge.

1. Permission to appeal. The applicable test was whether the district judge ought to have decided a challenged issue differently so as to order discharge, or whether fresh evidence would have led to that result: Love v USA [2018] 1 WLR 2889 at [26].
2. Abuse of process. The district judge had rejected the argument that the South African extradition request was invalid. Subsequently, the Supreme Court of Appeal of South Africa decided in Schultz that the power to request extradition vested only in the executive authority of the Minister of Justice and Constitutional Development. In light of that development, and the fresh evidence concerning its legal status, it was arguable that the district judge might have reached a different conclusion and ordered discharge under section 104(4) of the Extradition Act 2003. Permission was therefore granted on this ground.
3. Article 3 ECHR. The district judge had carefully scrutinised the prison assurances, assessing their reliability and quality and considering them individually, collectively and cumulatively. He was entitled to rely on the principles in Muršić v Croatia (2016) App 7334/13 and Othman v United Kingdom (2012) 55 EHRR. Materially identical assurances concerning the same prison wing had also been accepted in Lomas (No.1) [2024] EWHC 388. The challenge was not reasonably arguable, and permission was refused.
4. Fugitivity. The relevant test was whether the applicant knowingly placed himself beyond the reach of the criminal justice system concerned. Its application was fact-specific: Argeseanu v Romania [2023] EWHC 513. The appellate court should respect findings of fact, particularly where the trial judge heard the witnesses: Celinski & Others v Slovakian Judicial Authority [2015] EWHC 1274 (Admin). It was not reasonably arguable that the district judge had erred in finding the applicant a fugitive. It was therefore unnecessary to consider the passage-of-time bar.
5. Permission was refused on the Article 3 and section 82 grounds.

The district judge rejected the applicant’s challenges to extradition based on section 82 of the Extradition Act 2003, Article 3 ECHR and abuse of process. The High Court granted permission to appeal on abuse of process but refused permission on the other grounds.