High Court grants permission to appeal extradition decision on abuse of process grounds: Richard John Payne v Government of Republic of South Africa
On 17 December 2024 Thornton J granted a renewed application to appeal the decision of DJ Robinson in the extradition case of Richard John Payne. The Court agreed that the extradition request was arguably an abuse of process, because it was not validly issued.
South African law requires that an outgoing extradition request must be issued by the executive, specifically the Minister of Justice and Constitutional Development. Instead, the extradition request for Mr Payne was issued by the National Prosecution Authority (‘NPA’). The Applicant argued that the extradition request was therefore unlawfully issued by the NPA and to maintain otherwise was an abuse of the extradition Court’s process resulting in Mr Payne’s arbitrary detention pursuant to Article 5 ECHR.
The correct approach was clarified during Mr Payne’s extradition appeal by the decision of the South African Supreme Court of Appeal in Schultz v Minister of Justice and Correctional Services & Others (76/2023) ZASCA 77, handed down on 23 May 2024.
At the contested hearing of the renewed application for permission to appeal on 27 November 2024, Thornton J was provided with competing evidence about the status of the South African law. The Applicant provided a new independent report from a Senior South African Barrister (Mr Marcus Gilbert SC) to support the contention that Schultz rendered Mr Payne’s extradition request unlawful. The Respondent relied on evidence from the same agent of the South African NPA that issued the extradition request, to argue that the Schultz decision was not binding due to an extant out of time application to appeal to the Constitutional Court of South Africa.
Thornton J ordered expedition of the substantive appeal.
In the decision of Payne v South African [2024] EWHC 3275 (Admin), the Applicant was represented by Ben Cooper KC and Mary Westcott, instructed by Frank Brazell of Sperrin Law.
