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Cite as: [2014] EWHC 4417 (Admin)

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Neutral Citation Number: [2014] EWHC 4417 (Admin)


Royal Courts of Justice
London WC2A 2LL
8 October 2014

B e f o r e :





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Mr B Brandon (instructed by Hodge, Jones and Allen) appeared on behalf of the Appellant Vernon
Mr M Grandison (instructed by Edward Hayes) appeared on behalf of the Appellant Hamilton
Mr B Cooper (instructed by Shaw Graham Kersh) appeared on behalf of the Appellant Heesom
Miss H Hinton (instructed by the CPS) appeared on behalf of the Respondent (CO/1633/2014 and CO/2444/2014)
Miss C Powell (instructed by the CPS) appeared on behalf of the Respondent (CO/1625/2014)



Crown Copyright ©

  1. LORD JUSTICE LAWS: There are three linked appeals brought pursuant to section 103 of the Extradition Act 2003 before the court. They are brought against decisions of District Judge Evans on 28 March 2014 to send each of these three cases to the Secretary of State under section 87(3) of the 2003 Act for her to consider whether to order each Appellant's extradition to South Africa to face charges allegedly committed in that jurisdiction. The Appellant Mr Hamilton is wanted for offences of fraud said to have been committed when he was in a position of trust; Mr Vernon also for fraud in a position of trust and for high value theft; and Mr Heesom for offences of drug trafficking.
  2. Following the issue of appropriate warrants all three Appellants were arrested on various dates in 2013 at addresses in this jurisdiction. The extradition hearings were effectively conjoined by District Judge Evans and took place at the Westminster Magistrates' Court on 27 and 28 January and 11 February 2014, the formalities of the 2003 Act having been complied with. Judgment was reserved until 28 March 2014. In due course, after receiving the cases from the District Judge, the Secretary of State ordered extradition in all three cases.
  3. Before the District Judge the three Appellants contended that, if extradited, they would suffer ill-treatment contrary to Article 3 of the European Convention on Human Rights by virtue of the prison conditions in South Africa to which they would be subjected, despite assurances given by the South African authorities, which it was contended could not in effect be relied on. Indeed, that was the only contention before District Judge Evans in the case of Vernon and Hamilton. Mr Heesom had and has other points in addition.
  4. All three Appellants are white men. That may have some relevance because the District Judge stated that conditions in South African prisons are "pretty bleak", "perhaps particularly for white men because white inmates are very much in the minority".
  5. On 28 March 2014 District Judge Evans gave three separate judgments, but the passages dealing with prison conditions and the assurances are identical. It is part of Mr Heesom's case that the risks to him in a South African prison are exacerbated because he was an informer for the British Customs authorities and this is also in effect the foundation of another dimension in his appeal: that is a contention that the application to extradite him was an abuse of the process on the footing that the South African authorities, the requesting State, knew or must have known that he could not in truth be guilty of the offences for which they sought his return. This case was also put before the District Judge, who rejected it and we shall come to that in due course.
  6. The District Judge's conclusion led him to treat the argument on prison conditions in Mr Heesom's case on all fours with the arguments of the other Appellants on the same issue (see paragraph 24 of his judgment in Heesom). I will assume purely for the purposes of this part of the judgment that the District Judge was right to proceed in that way, and on that footing I will deal at this stage with the prison conditions issue on the assumption that there is no relevant distinction between the three Appellants. Upon this issue there are first three areas of the law which I should briefly canvass:
  7. (1) The law relating to Article 3 and extradition
  8. Where Article 3 is raised as an objection to extradition, the test for the court is whether:

    " . . . substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country." [Soering v United Kingdom App No 14038/99 paragraph 91.]

    There have been qualifications to this approach. In Wellington [2009] 1 AC 335 it was held that punishment which would amount to inhuman and degrading treatment if meted out here might not be so regarded in a case where the choice is between extradition or allowing a fugitive offender to evade justice (see per Lord Hoffman at paragraphs 22 to 24; see also Harkins and Edwards v United Kingdom App Nos 9146/07 and 32650/07, paragraphs 129 to 131).

  9. (2) The law relating to assurances from a requesting State
  10. In MT (Algeria) v Secretary of State [2010] 2 AC 110 the House of Lords approved the four points made by Mitting J in the Special Immigration Appeals Commission in the same case as follows:

    (1) the terms of the assurance have to be such that if they are fulfilled the person returned would not be subjected to treatment contrary to Article 3;

    (2) the assurances have to be given in good faith;

    (3) there has to be a sound objective basis for believing that the assurances would be fulfilled;

    (4) the fulfilment of the assurances has to be capable of being verified.

    In Othman v United Kingdom [2012] 55 EHRR 1 the Strasbourg court set out 11 factors to which a court deciding whether to accept assurances as to the prospective treatment of an extraditee should have regard. Counsel have referred to this list. I will not, with respect, set out all the factors. Section 2 of the Human Rights Act 1998 does not enjoin our courts necessarily to track guidance given by the European Court of Human Rights as to the approach to be taken to the adjudication of Convention claims, though I emphasise with very great respect that the points made in Othman are plainly helpful and practical.

  11. (3) The role of this court on an appeal of this kind
  12. The burden of the Appellant's case on the Article 3 issue is that the District Judge should have arrived at a different conclusion on the evidence before him. In Wiejak [2007] EWHC (Admin) 2123 Sedley LJ said at paragraph 23:

    "The effect of sections 27(2) and (3) of the Extradition Act 2003 is that an appeal may be allowed only if, in this court's judgment, the District Judge ought to have decided a question before her differently. This places the original issues very nearly at large before us, but with the obvious restrictions, first, that this court must consider the District Judge's reasons with great care in order to decide whether it differs from her and, secondly, that her fact-findings, at least where she has heard evidence, should ordinarily be respected in their entirety."
  13. That being the approach, I will need to set out virtually the whole of the District Judge's reasoning on Article 3 but should first say a word about the witnesses whose live evidence he heard. The three Appellants, as I understand it, all testified. So did Professor Rod Morgan on their behalf. He is professor emeritus at Bristol University and visiting professor at the LSE, the University of Police Science Institute, Cardiff University and the University of Sussex. He has frequently acted as an expert witness in Article 3 extradition cases.
  14. The requesting State called live evidence from Judge Tshabalala and an attorney, Mr Raga. Judge Tshabalala is the head of the Judicial Inspectorate for Correctional Services ("JICS") and the inspecting judge for Correctional Services. He was appointed in 2011. He was previously a High Court judge in South Africa for 15 years. Attorney Raga is the National Manager of Legal Services at the JICS.
  15. As I have said, the relevant passage in the District Judge's reasoning is identical in all three judgments save for the paragraph numbering. I will set it out with the paragraph numbers from the Vernon judgment and some small omissions:
  16. "8. In respect of all three, each will be held alone in a single-occupancy cell (ie no doubling up) in the Johannesburg Medium A Correctional Centre, and if convicted and sentenced to imprisonment each will be held alone in a single-occupancy cell (ie no doubling up) in the Johannesburg Medium C Correctional Centre.
    9. The biggest complaint about conditions in South African prisons is the severe overcrowding and inter-prisoner violence so often found in the usually provided dormitory housing. These men are being guaranteed what most prisoners would regard as a reward or a privilege, namely, their own single occupancy cell. It is quite wrong to describe the arrangements as solitary confinement. It most certainly is not that.
    10. The cell doors are opened for breakfast, lunch and tea/dinner. The occupants then leave their cells and wander down to the dining/canteen area at the end of the corridor. They have the opportunity to chat to each other, collect their meals and sit together in the communal eating area or take their meals back to their cells where they can eat their meals with their cell door open or closed as they wish. Some, on fine sunny days, choose to sit in the corridor which is exposed to the elements and eat their meals there. My impression from hearing the evidence was that there was a very relaxed atmosphere. Professor Morgan was not suggesting there was any atmosphere of simmering violence or anything of that kind. Professor Morgan was a little unsure [of] the extent to which some of this out of cell time collecting meals was counted towards the exercise time. The evidence about that remained a little unclear. The regime specifically allows for a discrete one hour exercise period so there is no justification in not providing that. No doubt for the vast majority of each day these men will be in their single-occupancy cell but there will be times when they will come out for eating, showering, some association time and exercising. Professor Morgan said of Medium A, 'They were not in solitary. They could mix with each other. They were not prevented from communicating. It is not as solitary as it would be in other jurisdictions.' There is no justification for calling this regime solitary confinement.
    11. Professor Morgan was concerned that, for remand prisoners, there appeared to be a somewhat barren regime on offer to keep prisoners occupied. Recourse to the prison library did not seem to offer much by way of reading material. Whilst on remand there may be little more to do other than read, perhaps prepare for the forthcoming trial, and to take advantage of the exercise time provided. Like most countries a correctional sentence plan is developed for each convicted prisoner and these three men are perhaps ideally suited to volunteer to teach other inmates who have not had their educational advantages and desperately need help in reading and writing. Indeed if that is something that appeals it may be possible during the remand period. When giving evidence Professor Morgan said of Medium C, 'It was the jewel in the crown of prisons because of all the educational classes and the exercise . . . this is an education-oriented prison. Being in Medium C is almost a reward, so they are good prisoners who want to make good. Classes are allocated on literacy and numeracy. Only civilian teachers are employed. I saw the classes in action and spoke to the teachers. Prisoners had exercise books, a library and one room was equipped with computers in which I saw a class (in session).'
    12. Having prepared submissions that imprisonment in South Africa would give rise to a real risk of article 3 ill-treatment, it then became necessary for those representing these men to reassess that position in the light of the undertakings. Professor Morgan visited both Medium A and Medium C and concluded that the conditions under which these men were to be held both on remand and if convicted (para 12.10) 'would not be regarded by CPT, the most authoritative independent body in Europe whose standards inform the ECtHR, as breaching article 3.' It should be noted that at the conclusion of the Professor's evidence he did not resile from that opinion.
    13. There are in general real concerns about the length of time an untried prisoner has to wait whilst held on remand before his trial is heard and determined. In these cases the evidence put before this court is very clear. Mr Chauke, the DPP of the South Gauteng Division of the High Court, Johannesburg, explains that in each case the investigations are complete and as far as the prosecution are concerned the cases are trial ready. I find no reason to consider there to be a real risk of any substantial delay in these cases.
    14. The submissions made are in my view unrealistic. I agree they must not be housed in the dormitories as they are too overcrowded and dangerous. The suggestion that the (highly sought after) single cell occupancy is all very well but is akin to solitary confinement is an unfair and unwarranted claim. I agree inmates need to have some stimulation and opportunities for association and this is available. To suggest that allowing some contact with other inmates puts them at risk of inter-prisoner violence is overstating any concern. Looking at the statistics which deal with inter-prisoner violence over the whole of the South African prison estate is singularly unhelpful when here we are only concerned with what might happen in Medium A & C. It seems that whatever is offered will never be enough.
    15. There is no reason to suppose any of these three is likely to be singled out for ill-treatment. According to Professor Morgan's enquiries there were no recent reports of inter-prisoner violence on the single occupancy cell corridor in either Medium A or Medium C. As the Professor said, 'The reported incidence of inter-prisoner or staff-on-prisoner violence is very small. They (the prison authorities) maintain these are largely calm and orderly prisons, which may be true.' That doesn't mean there might not be some act of violence in the future. The only way to rule out all possibility of any of these three ever being subjected to inter-prisoner violence is never to allow them to be in the company of any other prisoner. That is not the sort of regime they would wish for.
    16. I recognise that there have been incidents of violence on the vehicles taking prisoners from prison to court and back. Here the 'Sun City' prison complex is quite close to the court; given it would only be a short journey the chances of anything untoward happening is sufficiently remote that it can be discounted. None of these men is associated with any gang culture and will not therefore, for such reasons, be singled out for attack.
    17. No one suggests being in prison is comfortable and/or pleasant . . .
    19. I see little value in setting out the details of the assurances in this ruling. They are in writing and clear. They are given by the appropriate persons who are in a position to see they are met:
    - Mr Moyan, the National Commissioner of the Department of Correctional Services (DCS)
    - Mr Zacharia Moleko Modise, the Regional Commissioner of Gauteng province for the DCS
    - Judge Tshalabala, head of the Judicial Inspectorate for Correctional Services (JICS) and the Inspecting Judge for Correctional Services.
    - Mr Umesh Raga, the National Manager of the Legal Services Department at JICS . . .
    21. At paragraph 13 Mr Brandon makes 8 points in support of his central contention that the assurances cannot be relied upon. I comment as follows:
    (1) Conditions in South Africa's prisons are inhuman and degrading. Maybe, but not at Medium A and Medium C in the sole occupancy cells.
    (2) The witnesses are parti pris. I think that means they had already made up their minds, were biased and were lacking independence to deal fairly with the issues. I see nothing objectionable in Judge Tshalabala saying he was anxious to play his part in returning Mr Vernon to South Africa. There is objection by each of these witnesses that without the assurances extradition would not likely happen. These are not hollow undertakings given just to get the men back. There is no evidential basis for suggesting such a cynical ploy. My assessment is that considerable thought has gone into giving assurances that can and will be honoured.
    (3) JICS is overstretched and underresourced. I do not quarrel with that. It would not surprise me to learn if our Chief Inspector of prisons were to say much the same thing. Judge Tshalabala said that he personally would use his best endeavours to see that the undertakings were honoured. The point is that the undertakings are known to all the departments concerned with the prisons which will have any dealings with these three men. All are on-board in understanding what is required and know what is expected of them and they state they will ensure compliance. There is no evidential basis for suggesting any bad faith here.
    (4) A complaint to an ICCV by (one of these men) will not be dealt with as urgent. It is impossible for me to make any meaningful comment. It must depend on such a wide range of variables. The government is keen to have effective extradition arrangements with the United Kingdom. Were these undertakings to be breached it would prove very difficult for South Africa to persuade a court here to make any order leading to extradition. That is well understood by the government who will be anxious to ensure the undertakings are honoured.
    (5) DCS do not do what they are directed to by JICS. I accept Mr Brandon's account of the evidence. However, interventions by JICS which the DCS fail to act upon is one thing. Here DCS has given the assurances and Judge Tshalabala supports them. In those circumstances there is no reason to expect conflict.
    (6) The assurances regarding detention at police stations are insufficient. Mr Chauke's additional affidavit at tab 42 states, 'The men will not be transferred to/kept in police custody unless circumstances arise that necessitate it. The ultimate decision in any event rests with the Presiding Magistrate after hearing the parties.' I accept that is not an assurance it will never happen; however, it is difficult to envisage circumstances where there might be any need to transfer any of these men to police custody; after all, the prosecution are trial ready. There are no substantial grounds for believing these men are at a real risk of facing 'article 3 ill-treatment' by the police whilst in police custody.
    (7) The likelihood of a constitutional challenge to the assurances is unlikely. The outcome of any such challenge is difficult to predict.
    (8) Length of sentence. Professor Morgan's expertise does not extend to assessing the length of time, assurances given in good faith will endure.
    22. These men will have lawyers in South Africa. They no doubt will be told of the assurances. Should any problems arise then, quite apart from alerting Judge Tshalabala and seeking to resolve any issue through South African channels, one would hope a report to the British embassy would generate a speedy diplomatic reaction and response.
    23. I am satisfied these assurances have been given in good faith and there are no good reasons to doubt that they will be honoured. There are no substantial grounds for believing detention in prison for any of these three men will expose them to a real risk of Suffering article 3 ill-treatment."
  17. The eight points to which the judge refers, urged by Mr Brandon on behalf of Vernon, are precisely repeated in Mr Brandon's skeleton argument in this court. They are responded to point by point in Ms Hinton's skeleton argument for the requesting State on the Article 3 issues in the cases of Vernon and Heesom. Her response is, if I may say so, largely in line with the District Judge's observations which I have read.
  18. I turn at once to the importance of the assurances in the case. The District Judge made no specific finding as to whether, absent the assurances given by the South African authorities, these Appellants would suffer Article 3 ill-treatment upon their extradition. It will be recalled that in response to the first of Mr Brandon's eight points ("conditions in South Africa's prisons are inhuman and degrading") the District Judge said:
  19. " . . . maybe but not Medium A and Medium C in the sole occupancy cells".
  20. Mr Brandon for Vernon has forcibly contended, both in his skeleton argument at paragraph 9 and in his submissions today, that, absent the assurances, prison conditions in South Africa are such that these men would indeed suffer Article 3 ill-treatment. I think it is right to proceed on that basis. At the very least there is a real risk that that would happen. Mr Brandon in his skeleton cites this exchange in the evidence of Attorney Raga given on 27 January 2014:
  21. "Q. The reason why undertakings and assurances [are] given is because if Mr Vernon [is] placed in general population in South African prison system [it] will inevitably result in a breach of human rights, isn't that why assurances given?
    A. I would assume correct. When we did inspection of Johannesburg the communal cells would not meet those requirements."
  22. Quite apart from all the other general evidence of the issue canvassed in the written arguments, which includes for example the United States Department's human rights report published on 19 April 2013 (see paragraphs 22 to 23 of Mr Grandison's skeleton for Hamilton), I note this evidence in Professor Morgan's report of 27 September 2013 at paragraph 12.2:
  23. "In my opinion most of the provision for remand prisoners at Medium A Prison could be said to breach Article 3 - inhuman and degrading - and a credible Article 3 objection could be made to much of the provision for sentenced prisoners at Medium C Prison also."
  24. I proceed therefore on the footing that but for the assurances these Appellants would face a real risk of Article 3 ill-treatment and accordingly would have been entitled to be discharged by the District Judge. The assurances are therefore all-important. The first point to be made about them is that there is no dispute but that they are given in good faith and any contrary contention would in my judgment be quite unjustified. The efficacy of the assurance is of course a different matter and it has formed the principal burden of Mr Grandison's submissions for Hamilton. I will come to that. There are ifs and buts in Professor Morgan's evidence -- I mean no criticism, it would be surprising if it were otherwise -- but I would attach significance to these extracts from his oral testimony. On 27 January 2014 (tab 23 in bundle 2 at page 551) this appears:
  25. "I interpreted my brief to establish if it was feasible to honour the assurances. Yes it can be done operationally. Having spoken to senior staff I explored that."
  26. Then, after acknowledging the difficulty of binding successive members of the prison staff to such assurances, Professor Morgan said this (same tab, page 553):
  27. "Politically, the Head of the Inspectorate says, 'This is something I will honour,' is very persuasive. I am persuaded. Med C is as good as it gets. A prison in the future might be even better and they could go somewhere much worse. If honourably met, it is Article 3 compliant."
  28. Also in the Professor's report of 27 September 2013, this is said at paragraph 12/10:
  29. "In conclusion it is my opinion that the custodial conditions and regime assured to these three defendants if extradited would be different in several respects to those typical in Europe but they would not be regarded by the CPT [the Committee for the Prevention of Torture], the most authoritative independent body in Europe whose standards inform the European Court of Human Rights, as breaching Article 3 - the conditions would be criticised, the absence of prison programmes, the daily amount of time confined to one's cell, etc - but not more."
  30. This as it seems to me provides material support to the efficacy of the assurances and it comes from the expert called for the Appellants themselves, Professor Morgan, whose status and experience I have already very briefly summarised.
  31. There are a number of other points. Addressing some of the more pointed grounds of challenge, it is submitted for the requesting State that assurances are given by the Department for Correctional Services, the very department responsible for cell allocation. Attorney Raga from the JICS gave evidence that it was unlikely that the DCS would not meet the assurances and the DCS could be called to account in court proceedings. These points seem to me to provide an important counterbalance to the difficulties and limitations which the JICS faces and to which both Mr Grandison and Mr Brandon drew attention. Judge Tshabalala, head of the JICS, has moreover guaranteed these Appellants access to his office. They would also have access to their lawyers and to the outside world if any complaint was not addressed internally. Transfer to police custody, a separate point raised in particular by Mr Grandison, would only occur on the orders, if not of a magistrate then of another official (I think the Regional Commissioner for Correctional Services) and presumably that would be a considered decision. The possibilities of constitutional challenge to the implementation of the assurances on the basis that they discriminate against other prisoners, the possibility also of difficulties arising out of the passage of time if long sentences are imposed must surely sensibly be regarded as speculative.
  32. In all this I have not forgotten the submissions made on behalf of Mr Hamilton as to the alleged inadequacy of the JICS' ability to intervene and provide effective protection, nor Mr Brandon's points in the same area. I do not think that the identity of those who gave the assurances and who gave evidence in court, a point that was made this morning, can possibly compel a different result from that arrived at by the District Judge.
  33. As I have said, Mr Grandison's principal case for Hamilton is that the assurances will not give adequate protection, in particular protection: when the Appellant is in communal areas or protection against violence from staff. This morning Mr Grandison referred to a good deal of documentation. It included annual JICS reports and the figures there set out in relation to assaults and other documents. It included also a report of the Human Rights Committee of the United Nations regarding State failures in South Africa. It of course accepted that there had been difficulties and indeed failure. Judge Tshabalala, as we were reminded this morning, accepted that the JICS is in need of overhaul. The fact is, however, that the District Judge and this court were and are faced with the evidence of Professor Morgan, Mr Raga and Judge Tshabalala; and the District Judge arrived at the reasoned conclusion which I have already set out. It is to be noted, I think, as is stated in the skeleton argument prepared by Miss Powell in the Hamilton case, that the injury registers record prisoner injuries whenever they were taken off prison vans. There was agreement at first instance, it seems, on the low incidence of recorded violence, whether it was recorded verbally or in written registers. Miss Powell submits that one might be entitled to conclude that the system of recording is an effective deterrent against abuse by prison staff or inmates in transit. The defence expert, Professor Morgan, concluded in his September report, paragraph 12.7:
  34. " . . . I could find no evidence of serious injury being sustained by prisoners housed in single cells in Medium A [that is the remand facility] or indeed in Medium A generally."
  35. Reference was made by Mr Grandison to authorities suggesting that overcrowding in transit vehicles might of itself violate Article 3. He referred to Idalov v Russia App No 5826/03 and Yakovenko v Ukraine App No 15825/06. These cases are inevitably case-specific. It seems to me simply unreal to suppose that the possibility of very crowded conditions in transit vehicles in the circumstances of these cases could of itself support an Article 3 riposte to an extradition application. As I have already said, there will not be transfers into police custody without an order of a magistrate, or perhaps more likely (and there is a difference in documentation about this) by the Regional Commissioner for Correctional Services.
  36. There has been no fresh evidence on this appeal. We are asked to differ from the District Judge who heard live evidence as I have indicated. The arguments advanced on a general issue concerning Article 3 and the assurances from South Africa are in effect the same as those advanced before the District Judge. With great respect to the industry of counsel for the Appellants, I have heard nothing which persuades me, given the observations of Sedley LJ in the Wiejak case, that we should or are entitled to take a different view of this issue from that of the District Judge.
  37. Lastly it is to be noted that prison conditions in South Africa have been examined in this court before. In Dewani [2013] 1 WLR 82 at paragraph 33, Sir John Thomas, then President of the Queen's Bench Division, giving the judgment of the court, said this at paragraph 33:
  38. " . . . the Government of South Africa has given clear undertakings that the appellant would be held in a single cell. As Miss Disel and Miss Gear accepted, what happens in a single cell bore no relation to what happened in communal cells. We consider the senior district judge was entitled to accept the undertakings given by the National Director for Correctional Services and that he was right to hold that they would be followed. South Africa has now a material track record of respect for democracy, human rights and the rule of law. Those are highly material factors to the court's acceptance of the undertakings and the conclusion that they meet the conditions set out in RB (Algeria) v Secretary of State [2010] 2 AC 110, para 23."
  39. For all these reasons for my part I would dismiss these appeals so far as they relate to what may be called the general Article 3 issues.
  40. I turn to Mr Heesom's separate case. As I have said he claims that the application to extradite him is an abuse of the process. Abuse of the process is not an express statutory bar to extradition but the courts have recognised the jurisdiction to stop such proceedings as abusive (Tollman [2006] EWHC (Admin) 2256; Bermingham [2007] QB 727). Where such an issue is raised the question is as to the good faith of the requesting State (see Symeou [2009] EWHR (Admin) 897). That proposition is of central importance in the present case.
  41. It is said for Mr Heesom that the District Judge should have found not only that historically he had been an informant for Her Majesty's Customs and Excise but that was he was working for and under the instructions of particular Customs officers at the time of the offending for which his extradition is sought. It is accepted, indeed confirmed, by an officer of the Customs, Malcolm Brown, that Heesom was a registered informant but it is said he was "deactivated" by the Manchester office of HMCE in 2001. Heesom asserts and asserted before the District Judge that he remained active in relation to activities in South Africa. He told the District Judge that Mr Brown was dishonestly denying his continuing involvement (judgment paragraph 7). The South African police have accepted that Heesom earlier worked for them as an informant. I will return to that.
  42. The Appellant has insisted that he remained in contact in South Africa with another Customs agent, Mr Waters, with whom he says he was working throughout the incident which led to his arrest. The British Customs have stated on 22 July 2013 that they will "neither confirm nor deny that HMRC holds any personal data", as requested by Heesom who states that there will be records of his continuing involvement.
  43. The District Judge said this:
  44. "9. Neither Mr Brown nor Mr Waters/Watters has been called as a witness in these proceedings. Within the request papers it is reported that Mr Brown does not support (1) it was open to those who represent Mr Heesom to make arrangements for Mr Brown and/or Mr Waters or some other suitable HMCE witness to come to court and the issue could then have been ventilated. Mr Heesom was arrested in these extradition proceedings on 1st March 2013. As can be seen from paragraph 8 of Mr Heesom's proof of evidence, which was prepared a long time ago and certainly before May 2013 he says "I telephoned Ray Waters the day before and the day of my arrest (in South Africa in 2002) for this matter to let him know about the proposed shipment of the drugs..." If that is Mr Heesom's case then it was open to him to seek confirmatory evidence for what he was saying. There has been plenty of time and there have been frustrating delays. It was necessary for Mr Heesom's first legal team to withdraw from the case and very recently a new team has taken over. Shaw Graham Kersh had Mr Heesom's legal aid transferred to them on 22nd January 2014. On 29th January 2014, the day set aside for the hearing of all issues relating to Mr Heesom's case, other than prison conditions, I was invited to issue witness summonses for Messrs Brown and Waters/Watters. The relevant notices required under the CPR had not been served on the witnesses, some doubt was expressed as to whether Mr Brown was in the country, and this application was just too late. Any witness summons issued would inevitably have led to an adjournment with yet further delay. The court was determined to conclude the evidence and submissions given the already very serious delays. There is no suggestion the previous legal team were in any way incompetent and they, no doubt, for good reason, had taken no steps to call these witnesses.
    10. The 'abuse of process' submission is quite hopeless. It is not suggested the South African prosecutor knows that Mr Heesom was acting under the instructions of HMCE or that there is anything improper in South Africa wishing to prosecute Mr Heesom for alleged serious offences. If Mr Heesom wishes to contest the case in South Africa on the basis that he was at all times acting for HMCE then he will probably need something more than just relying on his assertion that he was so acting. It is for the defence lawyers to arrange for the necessary witnesses to attend court and for those witnesses to give the appropriate evidence before a court. It is a simple factual issue that requires evidence."
  45. We were troubled by this part of the case. We asked Miss Hinton for her observations about the District Judge's refusal to adjourn. She has shown us various documentation and I must refer to some of it in a moment. It is necessary also to observe that at the end of paragraph 8 of his judgment the judge said this:
  46. " . . . if, however, I accepted evidence from a UK government law enforcement agency that Mr Heesom was at all times acting under the instructions of that agency I would have stopped the extradition until, at least, South Africa had an opportunity to respond."
  47. It seems to me that the key question in relation to this issue of abuse of process is whether it is part of Mr Heesom's case, his express case put to the District Judge, that the South African authorities were pursuing the application to extradite him in bad faith because they knew of his covert activities, and that must have led to a conclusion that he could not have been guilty of the offences charged. We pressed Mr Cooper for Mr Heesom on the point. He showed us certain passages in the skeleton arguments that had been placed before the judge. I will read from paragraph 9 of the first one which was prepared by Mr Cooper's predecessor:
  48. "The RP [that is the requested person, Mr Heesom] was in regular, and direct contact with Malcolm Brown and Ray Waters, who was also working for UK Customs. On the day prior to, and indeed of his arrest, the RP was in telephone contact with Ray Waters to inform him of the planned shipment of cannabis from South Africa to Manchester in the UK. Indeed, the RP mentioned both of these individuals' names to the police upon arrest in South Africa. This is confirmed in the extradition papers in which it is alleged that the RP was silent after he did so; however, the RP explained that this was because he was assaulted by a police officer named Stefan Botha."
  49. Similar points are made by Mr Cooper himself in his subsequent skeleton argument, also placed before the learned District Judge. We were taken to that: it is under the heading "Disclosure" in paragraph 3. I need not perhaps read out all the material.
  50. Mr Cooper has made his case for abuse today in what might be called -- and I mean no disrespect -- a somewhat oblique fashion. He does not submit that the case was put in terms to the District Judge that the South African authorities were in effect acting in bad faith. Indeed, he would have been in very great difficulty in doing so because of what is said in the affidavit seeking the extradition of Mr Heesom prepared by the Director of Public Prosecutions for the South Gauteng High Court, Mr Chauke. Miss Hinton took us to this this morning. At paragraph 9 this appears:
  51. "(d) Heesom did allege to Botha [Inspector Botha was the initial Investigating Officer] that he was an informant for HM Customs and Excise. This allegation was followed up by correspondence with HM Customs and Excise.
    (e) Mr Malcolm Brown from HM Customs and Excise confirmed that Heesom was registered as an informant but that he was deactivated by their Manchester office in 2001. They were aware of the fact that Heesom then returned to the Republic of South Africa and that he also had made contact with Mr Ray Waters. Heesom was however never reauthorised as a source and was not given any tasking as an informant. During the investigation of this matter and the subsequent trial proceedings no one ever came forward to confirm that Heesom was operating as an informant.
    (f) Heesom also only assisted HM Customs and Excise in one case where eight kilogrammes of cannabis were smuggled to the United Kingdom. This was the only case where he gave positive information to the authorities. It is therefore highly unlikely that Heesom would be in a vulnerable group needing additional protection in the event of his incarceration."
  52. I do not understand Mr Cooper to assert that that evidence was effectively challenged before the District Judge. It seems to me that the result is there is really no case to the effect that the South African authorities have acted abusively in seeking Mr Heesom's extradition. It may be -- I do not know -- that if the Customs Officers, Mr Brown and Mr Waters, were asked to give an account of their whole association with Mr Heesom, facts might emerge which would be relevant to the merits of the prosecution case against him in South Africa. But it seems to me plain that that would be something for the trial to take place there; it might, for all I know, affect the result. But it does not touch the integrity of the application for extradition.
  53. In those circumstances, despite Mr Cooper's urging us to allow an opportunity for Mr Brown and Mr Waters effectively to be questioned and to give an account of their association with Mr Heesom, there is no case in this court for entertaining the abuse application. There is no reason to suppose that Heesom will not receive a fair trial in South Africa. It may be that such a trial will be assisted by appropriate enquiries of the British Customs, I know not. In the end, however, it seems to me plain that there is no abuse case.
  54. Mr Heesom also alleges that he should be discharged pursuant to section 28 of the 2003 Act because of the passage of time. 12 years have elapsed from the date of the alleged criminality, 28 October 2002. The extradition request was dated 7 November 2012. Mr Heesom was arrested in March 2013. He fled South Africa in breach of his bail conditions in 2003. He says he was in fear of a Mulenga Mwensa, a known drug smuggler who would seek to silence him to stop him giving evidence. He refers to other factors, including the murder of his business partner who had been arrested in connection with the same allegations. The District Judge said this:
  55. "17. Mr Heesom gave evidence before me. He speaks very quickly and with passion. He is righteously indignant about his situation. He provides a fluent account and has an answer for everything. Unlike those at Crewe police station my view was not that these were delusional thoughts. I thought it much more likely a carefully thought through untruthful account. I am afraid I just did not believe a word of what he told me. I considered it to be a contrived and invented 'defence' developed as an answer to the charges he faces and to thwart his extradition. I do accept he has been broadly consistent. He gave a similar account back in 2003 to his South African lawyer Engelbertus Grove.
    18. I do not accept the submission that he should not be regarded as a fugitive because he only left South Africa because he feared for his life. I considered Mr Heesom's alleged fear of Mr Mulenga was not genuine. I do not believe there were any threats to his life and the 'shooting incidents' were incredible. I am satisfied he left South Africa to avoid these proceedings and he has been on the run ever since. He is the classic fugitive and he is unable to rely on the bar provided for in section 82 of the Act."
  56. I cannot see how these conclusions can sensibly be faulted in this court. That is not, however, necessarily the end of the delay argument. It is said that in any event the claim to extradite Mr Heesom has not been pursued expeditiously; indeed, far from it. The extradition request of November 2012 contains Mr Heesom's Manchester address and details from his passport. He lived at that address until 2008. He was arrested at Crewe on 8 July 2009 on charges of threats to kill and it is said that the arresting officer's statement of 8 July 2009 shows that it was known he was wanted "by international forces". It appears that the alleged South African offences were then known about here.
  57. On 5 January 2010 he received a suspended sentence in the Crown Court. The District Judge said this.
  58. "19. In any event Mr Heesom has not established he would suffer oppression, of a sufficient degree having regard to the seriousness of the allegations, by reason of the delay.
    20. Why it was that following the arrest in 2009 (my paragraph 16) that extradition proceedings were not then instituted remains a mystery. It was known there was no international warrant then in existence, but it is wholly unclear whether any attempt was made, let alone achieved, in contacting the relevant authorities in South Africa."
  59. For a case to be made under section 82 it must be shown that it would be unjust or oppressive to extradite the person concerned by reason of the passage of time. I will not rehearse the well-known authorities of Kakis [1978] 1 WLR 779 or Gomes [2009] 1 WLR 1038, save for one passage at paragraph 26:
  60. "True it is that Laws LJ then added: 'An overall judgment on the merits is required, unshackled by rules with too sharp edges.' If, however, this was intended to dilute the clear effect of Diplock para 1, we cannot agree with it. This is an area of the law where a substantial measure of clarity and certainty is required. If an accused like Goodyer deliberately flees the jurisdiction in which he has been bailed to appear, it simply does not lie in his mouth to suggest that the requesting state should share responsibility for the ensuing delay in bringing him to justice because of some subsequent supposed fault on their part, whether this be, as in his case, losing the file, or dilatoriness, or, as will often be the case, mere inaction through pressure of work and limited resources. We would not regard any of these circumstances as breaking the chain of causation (if this be the relevant concept) with regard to the effects of the accused's own conduct. Only a deliberate decision by the requesting state communicated to the accused not to pursue the case against him, or some other circumstance which would similarly justify a sense of security on his part notwithstanding his own flight from justice, could allow him properly to assert that the effects of further delay were not 'of his own choice and making'."
  61. There is in my judgment no such exceptional circumstance in this case, given my view as to the abuse of process argument also advanced by Mr Cooper.
  62. For all these reasons and in these circumstances I would dismiss all of these appeals.
  64. LORD JUSTICE LAWS: No consequential matters?
  65. MISS HINTON: No, your Lordships. We're grateful.

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