Judge gives green light to extradition of honeymoon murder suspect

12 August 2011 by Rosalind English

Belmarsh Magistrate’s Court has ruled that Shrien Dewani can be extradited to South Africa to stand trial for the murder of his wife, the judge concluding that the hardships he would face there would fall short of oppression. On Monday 26 September the home secretary signed an order for his extradition.|updated

The South African government sought extradition for Dewani in order to put him on trial for the murder of his wife Anni  in Cape Town last November. The newlyweds were being driven through the dangerous township of Gugulethu when their taxi was hijacked on November 13. Dewani was thrown out of the vehicle while his wife was driven off and shot dead. The authorities subsequently claimed to have  evidence that Dewani had arranged the carjacking and shooting of his wife.

Dewani’s lawyers argued that the extradition proceedings were not only an abuse of the process of the court, but if extradition was granted, it would be a breach of the defendant’s human rights, particularly Articles 2 and 3 of the European Convention. The abuse argument was predicated on allegations that the South African authorities had already prejudged Dewani’s guilt. As to the Convention arguments, evidence was advanced of widespread sexual assault and gang crime in the overcrowded South African prisons, including potentially lethal attacks by HIV infected inmates. His defence team also argued that he was too unwell to stand trial abroad, adducing medical evidence of severe depression and suicidal tendencies which would be exacerbated if he were sent to South Africa. 

Nevertheless District Judge Howard Riddle concluded that the three Correctional Centres where the defendant was likely to be held were all suitable and appropriate for accommodating him in compliance with his human rights. DJ Riddle acknowledged that there would be “undoubted hardship” for Dewani if he were extradited to South Africa, however, when all the relevant factors were considered,

the risk of hardship falls short of oppression. The public interest in extradition and trial outweighs the competing hardship,”

The abuse of process argument was summarily dismissed. Even if it were true that senior police officers had expressed belief in the defendant’s guilt, that would not make the South African court more likely to convict. Nor did speculations about his alleged motive for the murder; it would only be in “a wholly extreme case” that the court should properly regard any encouragement to the accused person to surrender for trial and plead guilty  as to constitute an abuse of process justifying the requested state’s refusal to extradite the accused.

Comment

This case demonstrates very clearly the differing approaches to Convention rights, depending on whether the proceedings involve extradition or other forms of removal from the jurisdiction. Extradition turns the asylum test on its head, at least for the purposes of Article 3.  On the one hand the considerations turn on whether a citizen should be sent out of the jurisdiction, on the other the question is whether to let someone in. And the precedent-setting consequences differ hugely. So for example when the UK Borders Agency say that South African prison condition, though “poor”, are unlikely to reach Article 3 threshold, that is less a statement about the prevailing conditions in South Africa than a declaration about the high threshold that any migrant must overcome to prove refugee status in this country. This is because of the obvious difference between the outcomes of immigration and extradition cases respectively; the first creates a precedents for hundreds, perhaps thousands, of other applicants; the second has negligible consequences in terms of numbers. Doctrinal purists may object, but it makes sense for the balancing act to be undertaken differently.

For this reason cross-references to immigration cases in the Article 3 context are of little assistance in the extradition context, as we can see from this case. Even though DJ Riddle was clearly convinced of the psychiatric evidence as to the high risk of suicide, he was reluctant to accept that extradition to South Africa were such as to tip the defendant over the edge. He complained that

The experts did not explain in detail in their report why the risk of suicide would increase if Mr Dewani is extradited.

and objected to the unspoken but “underlying” assumption that the treatment offered in hospital in South Africa would not be equal to the treatment the defendant would receive in the UK.

And these points go to the comity of nations, an important factor to weigh in the balance in extradition proceedings. They would bear no weight in asylum proceedings involving Article 3.  So when the judge says

The question is not whether facilities are better in London than in the Western Cape.

– he is making a point about the proper considerations to be taken in to account in whether a court should or should not allow a country to export a citizen for trial by a foreign state. But in immigration and asylum cases these qualitative comparisons are made all the time, otherwise there would have been no development of the line of case law under Article 3 that stretches from D v United Kingdom in 1995 to Limbuela v Home Secretary in 2005, all of which hinge on lack of adequate medical care abroad.

As for this concluding statement –

the Republic of South Africa has explicitly adopted all relevant international and regional treaties. It is bound by its own Constitution which incorporates a full Bill of Rights.

– it might be said that this is of little consequence for someone in Mr Dewani’s position.  The sanctimonious brandishing of human rights instruments is common to governments across the ideological spectrum, and says nothing of the real conditions prevailing within their borders. It is of cold comfort to the prisoners lurking in Robert Mugabe’s gaols that the Zimbabwean constitution contains a bill of rights “containing extensive protection of human rights“. This is not to equate the South African position with the lamentable situation north of its border; only to point out that obvious fact.

It is right that the bar should be set very high for resistance to extradition requests, or the system would become prey to competitive gestures by contracting states as to the superiority of their compassion mechanisms, and bogus claims to mental illness would flourish to thwart the course of justice. And of course there is a “strong” public interest in alleged offenders being tried. But it is misleading to suggest that this bar is fixed at a level comparable to that which obtains in asylum cases. This case has been bathed in lurid publicity since the tragedy occurred, and there is no doubt that it is fraught with political and quasi-diplomatic considerations. Whatever view one takes of the grim evidence about the state of South African prisons, or the sincerity of the South African government’s undertakings with respect to the defendant, it is not too cynical to speculate that the uncontested evidence regarding Mr Dewani’s mental state would have led to quite the opposite result had this been an asylum application by an unknown individual from an obscure country of which we know little. As it is, the notoriety of the Dewani story together with the delicate equilibrium of relations between the UK and its former colony set the writing clearly on the wall, no doubt to be reconsidered on appeal.

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