Richard John Payne v Government of The Republic of South Africa

Extradition proceedings may be an abuse of process where the requesting state’s request is plainly invalid and the statutory scheme provides no effective remedy. The exceptional Zakrzewski jurisdiction applies where invalidity is established on facts that are clear and beyond legitimate dispute. An invalid extradition request cannot initiate extradition proceedings, even if the Secretary of State reasonably believed that it was made by the proper authority when certification occurred. Persistence in relying on a request while pursuing domestic legal remedies does not, without more, establish prosecutorial manipulation or bad faith.

Richard Payne appealed against a District Judge’s decision sending his case to the Secretary of State, followed by an extradition order. South Africa sought his extradition to face trial for numerous offences. The District Judge rejected challenges based on delay, prison conditions, private and family life, and abuse of process.

After that decision, the Supreme Court of Appeal of South Africa decided in Schultz that only the Minister of Justice could make an extradition request. The request for Mr Payne had been made by the National Prosecution Authority. The appeal therefore concerned whether the later evidence established a Zakrzewski abuse of process and whether South Africa had manipulated the English proceedings.

1. Appeal allowed. The extradition proceedings were a Zakrzewski abuse of process. The later evidence showed, clearly and beyond legitimate dispute, that the request had been made by the National Prosecution Authority, which lacked authority under South African law, and that the Minister of Justice had not been involved.
2. The court had jurisdiction to address the issue as abuse of process although the Extradition Act 2003 did not make an improper requesting authority a statutory bar. The statutory appeal route, including the fresh-evidence condition in section 104(4), was satisfied because the new evidence would have led the District Judge to decide the issue differently.
3. The Secretary of State had been entitled to certify the request under section 70(7)(a), having reasonably believed that the National Prosecution Authority had the function of making extradition requests, given established practice and the available South African jurisprudence. That did not cure the invalidity of the originating request.
4. Under Tollman, where prosecutorial manipulation is alleged, the judge must consider whether there are reasonable grounds to believe such conduct may have occurred and, if so, must not order extradition unless satisfied that it did not occur. Under Zakrzewski, invalidity must be established on facts clear and beyond legitimate dispute.
5. There was no separate abuse based on manipulation or bad faith. South Africa’s continued reliance on the request, its attempt to challenge the effect of Schultz, and its reliance on an arguable procedural remedy did not establish manipulation of the English process.
6. The District Judge’s order was set aside. Mr Justice Choudhury agreed.

• High Court (Administrative Court) — The appeal against the District Judge’s decision was allowed. The extradition proceedings were held to be an abuse of process.
• District Judge (Magistrates’ Court) — On 14 March 2024, the judge rejected the challenges and sent the case to the Secretary of State.
• Secretary of State — An extradition order was made on 6 May 2024.