The Government of the Republic of South Africa v Shrien Dewani
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT OF THE QUEEN'S BENCH DIVISION |
| Judgment Date | 30 March 2012 |
| Neutral Citation | [2012] EWHC 842 (Admin) |
| Docket Number | Case No: CO/9406/2011,CO/9406/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 March 2012 |
[2012] EWHC 842 (Admin)
The President of the Queen's Bench Division
and
Mr Justice Ouseley
Case No: CO/9406/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Clare Montgomery QC and Julian Knowles QC (instructed by Hickman and Rose) for the Appellant
Hugo Keith QC and Ben Watson (instructed by Crown Prosecution Service) for the Respondent
Hearing dates: 13–14 December 2011
This is the judgment of the court.
The appellant appeals against the decision of the Chief Magistrate, Senior District Judge Riddle, dismissing all the grounds on which those acting for him sought to oppose his extradition to South Africa to face the charge of murdering his wife and other related charges. Although we were provided with 80 authorities, the issues are specific to the appellant's mental state and the prison conditions in South Africa which would be applicable to him if extradited.
The case against the appellant
The appellant, a British citizen, married Anni Hindocha on 29 October 2010 in Mumbai. They went on honeymoon to South Africa. On 12 November 2010, they arrived for the second part of the honeymoon at Cape Town. They hired a taxi driver, Mr Zola Tongo, to act as their driver and tour guide whilst there.
On the late evening of 13 November 2010, Mr Tongo drove the appellant and his wife back from a seaside restaurant in his taxi. He left the motorway and drove into the township of Gugulethu. The car was stopped by two men; the appellant's account was that he was forced from the car at gun point and the car was driven off. His wife's body was found in the car the next morning. She had been killed by a single gunshot to the neck. The appellant returned to the UK on 16 November 2010.
As a result of police investigations, a Mr Qwabe was arrested on 18 November 2010. He explained that he had been hired by Mr Tongo after an introduction by Mr Monde Mbolombo, a hotel receptionist. He also provided information which led to the recovery of the cartridge case and the firearm linked to the murder.
Mr Tongo was arrested on 20 November 2010 after his lawyer had said he would hand himself in. He was charged with conspiracy to murder. As part of a plea agreement made on 5 December 2010, Mr Tongo made a statement in which he said that the appellant had in effect asked him to arrange for the murder of a "client" for 15,000 Rand (approximately £1,375); he then hired Mr Xoile Mngeni and Mr Qwabe through Mr Mbolombo to stage the kidnapping and robbery. Mr Mbolombo's account was that he put Mr Tongo in touch with Mr Xoile Mngeni and Mr Qwabe. Mr Tongo pleaded guilty on 7 December 2010 and was sentenced to 25 years' imprisonment, with 7 years suspended. Mr Tongo and Mr Mbolombo have agreed to give evidence for the prosecution.
The prosecution also relies on other evidence, including CCTV evidence of the appellant leaving the hotel to meet Mr Tongo, mobile phone records of Mr Mbolombo and Mr Tongo and independent statements said to support the account given by Mr Mbolombo, Mr Tongo and Mr Qwabe.
The extradition proceedings
Although the appellant had no history of mental illness, he began to exhibit symptoms of depression and post traumatic stress disorder (PTSD) on his return. The appellant was arrested on 7 December 2010 under a provisional arrest warrant under s.73 of the Extradition Act 2003 (the 2003 Act). He was remanded on conditional bail.
On 10 January 2011, the respondent (the Government of South Africa) sought the extradition of the appellant to South Africa under Part 2 of the Extradition Act 2003 (the 2003 Act) on charges of murder, kidnapping, robbery with aggravated circumstances and obstructing the administration of justice arising out of the murder of his wife. The request was certified by the Secretary of State on 12 January 2011.
The extradition hearing took place before the Senior District Judge in May and July 2011. Under the 2003 Act, the court was not required to consider whether was there was a case to answer. The appellant's extradition was contested on the grounds that:
i) The extradition proceedings were an abuse of process.
ii) His extradition would breach the appellant's rights under Articles 2 and 3 of the ECHR.
iii) The appellant's extradition was barred by s.91 of the 2003 Act or alternatively the proceedings should be adjourned.
It was not contended that he would not receive a fair trial.
On 10 August 2011 the Senior District Judge dismissed all of the objections and sent the case to the Secretary of State. On 28 September 2011, the Secretary of State ordered his extradition. The appeal was brought to this court on behalf of the appellant by those acting for him, as the view has been taken that he is not in a position to give instructions. The ground relating to abuse of process has not been pursued.
There were two issues in the appeal: (1) whether the appellant's mental condition and the attendant risk of suicide were such that he should not be extradited and, (2) if so, whether the prison conditions which he would experience in South Africa were such that it would be a breach of Articles 2 and 3 the Convention to extradite him. It is convenient to consider the issue in relation to prison conditions first.
I: The Prison conditions to which the appellant would be subject
(a) The appellant's contention on the appeal and our approach to this issue
It was the contention advanced on behalf of the appellant that the appellant's rights under Articles 2 and 3 would be violated as prison conditions combined with circumstances specific to the appellant (his mental health, media profile and vulnerability) meant that there was a real risk of a violation of Articles 2 and 3. Reliance was placed not only on the effect of his extradition on his mental illness and the lack of facilities for its treatment, but also on the high risk of HIV/AIDS infection and attack, particularly sexual violence, from other inmates.
Although reliance was placed by Miss Montgomery QC on the effects of his mental illness, the lack of facilities for its treatment and the risk of suicide, it is convenient to consider that separately which we do under the second issue. We will consider under this issue the risk of HIV/AIDS infection and violence to him from other inmates. It was the broad contention advanced that the Senior District Judge had been wrong to accept the undertakings from the Government of South Africa and that the undertakings could not specifically protect the appellant.
(b) The undertakings
The National Commissioner of Correctional Services gave undertakings on behalf of the Government of South Africa that the appellant would be held at the Goodwood Correctional Centre in a single cell in the sick bay area when on remand. If convicted, sentenced to imprisonment and classified as a medium security risk, he would be held at the Malmesbury Medium A Correctional Centre in a separate cell with a flush toilet and hot and cold water. If convicted, sentenced to imprisonment and classified as a high security risk, he would be held at the Brandvlei New Correctional Centre; he would then be moved to the Brandvlei Maximum Correctional Centre following its completion and held there in similar circumstances.
The evidence of Judge van Zyl (to which we refer at paragraph 20) was that, although the undertakings were not legally binding, he would expect them to be honoured. He gave an assurance to the Senior District Judge that the Inspectorate would personally ensure the undertakings would be complied with. The Senior District Judge concluded that the undertakings would be fulfilled.
(c) The evidence before the Senior District Judge about prison conditions
The Senior District Judge heard evidence called by the appellant from Miss Amanda Dissel and Miss Sasha Gear who were heard together by video link from South Africa. Both specialised in criminal justice and penal reform in South Africa. Miss Gear also specialised on issues of sexual health and sexual violence in men's prisons.
Their evidence, which is set out in detail in the judgment of the Senior District Judge and in their reports and transcripts of their oral evidence provided to us, was to the effect that there was serious overcrowding (164,000 prisoners in a system with a capacity for 118,000). That had particularly adverse consequences for the availability of health care and the treatment of those with mental illness. Even though prisoners were entitled to obtain private medical treatment at their own expense, it was not always possible to secure such treatment. There was very little understanding of or research into HIV/AIDS in prisons. Prisons in the Western Cape had a significant gang problem with non members bearing the brunt of gang violence, including rape, and intimidation. Conditions differed from prison to prison; what happened in communal cells differed markedly from the position of a person in a single cell.
They thought that there were specific risks for the appellant in relation to HIV and sexual violence, as he fitted the profile of someone who was particularly vulnerable. He was youthful, good looking and lacked "street wisdom". Even if he was the occupant of a single cell, he would be vulnerable to assault when out of his cell or at night when there were insufficient guards on duty. As to the prisons specified in the undertakings, they considered more information was required...
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