Divisional Court rules South African extradition request abused the court’s process
On 30 April 2025 Richard Payne’s extradition request was found to be an abuse of the court’s process. His appeal was allowed after proceedings that had lasted 30 months. The court agreed that his extradition request had been unlawfully issued by the prosecution instead of a government minister. Mr Payne submitted that his detention was therefore arbitrary and so violated his Article 5 ECHR rights.
The Successful Extradition Appeal
Richard Payne, a British citizen of good character, is accused of high profile and high-value fraud and corruption offences linked to his businesses in South Africa, some 15-20 years ago.
The appeal following the first instance case at Westminster Magistrates’ Court (under S103 of the Extradition Act 2003). This required the permission of the High Court, which was granted by Thornton J on 17 December 2024 following an oral renewal hearing.
The substantive extradition appeal here was heard on 25 March 2025 before Dingemans LJ and Choudhury J, sitting in the King’s Bench Division.
The Appellant argued that his detention was arbitrary and a breach of Article 5 ECHR, because the request was made by the National Prosecution Authority (‘NPA’) instead of the Minster of Justice and Constitutional Development in South Africa. This was consistent with the judgment of the Supreme Court of Appeal in Schultz v Minister of Justice and Correctional Services & Others (76/2023) ZASCA 77 (May 2024). The Appellant argued that maintaining an unlawfully issued extradition request was an abuse of the extradition court’s process. He adduced expert evidence from Gilbert Marcus SC, a leading South African constitutional lawyer explaining how the government was acting in breach of its own constitutional obligation to uphold the rule of law by persisting with an unlawful request.
After the Schultz decision, the Appellant initiated civil proceedings in South Africa to set aside the unlawful request. A decision by the South African High Court is awaited, but the only dispute there is whether or not those proceedings should be stayed pending a separate application to challenge Schultz in the Constitutional Court of South Africa. The common ground in South Africa was in stark contrast to the position that effectively the same parties took before the extradition courts in this country. The upshot of the different submissions made almost simultaneously before the South African High Court and the King’s Bench Division, was that, while the NPA recognised the illegality of its extradition request, the CPS acting for the Respondent Government maintained its request was nonetheless ‘valid’.
In allowing the appeal, the Divisional Court found that the South African extradition request was unlawful because the prosecution had no power to issue it. Dingemans LJ, giving the leading judgment, agreed that ‘if it can be shown that the wrong authority has issued the extradition request, then … there could not be a valid extradition’ (Payne, paragraph 47). The court stayed the proceedings applying Zakrzewski v Poland [2013] UKSC 2; [2013] 1 WLR 324.
Postscript:
The Government of South Africa now applies for leave to appeal to the Supreme Court to challenge the Divisional Court’s interpretation of the abuse of process jurisdiction. It argues that only in very limited circumstances could an abuse of process arise in extradition proceedings, absent bad faith on the part of the Requesting State. They say that the question of an extradition request’s validity (when that request is not coming from a member state of the European Union) is determined once and for all when the Secretary of State makes a certification decision under section 70 of the Extradition Act. Against this, the Appellant emphasises the elementary necessity that extradition proceedings are underpinned by a lawful process.
Richard Payne, meanwhile, was released from HMP Wandsworth on 1 May 2025. He remains on bail while South Africa awaits determination of its application to appeal to the Supreme Court.
The judgment of the Divisional Court (Dingemans LJ and Choudhury J) can be read in full at Richard John Payne v Government of the Republic of South Africa [2025] EWHC 1043 (Admin)
Richard Payne continues to be represented by Ben Cooper KC and Mary Westcott (Doughty Street), instructed by Frank Brazell and Rory Fazan of Sperrin Law.
