The failure to extradite a man under arrest in South Africa for his alleged part in a paedophile ring in the United Kingdom could become a political embarrassment for this country.
This is according to the Western Cape director of public prosecutions, who will appear before the constitutional court next week in a matter relating to the extradition of Lee Nigel Tucker. Tucker was arrested in Cape Town in 2016 for the alleged sexual exploitation of minors in the 1980s in the UK. Since then he has been held at the Pollsmoor Maximum Security Prison.
The alleged paedophile has been kept in limbo because of a high court judgment on his right to receive a fair trial. Tucker was arrested in March 2016 after a request for his extradition by the UK government.
Efforts to bring Tucker to justice have spanned 16 years. Among the papers requesting his extradition is an affidavit stating that in 1997 police in the UK received information that a paedophile ring was operating in Bristol, Cardiff, Swansea and Caerphilly. A major investigation was launched and 10 men were convicted and sentenced to imprisonment in 1999.
Towards the end of that year, two people came forward and alleged they had been sexually abused by Tucker and two other men. They testified in court that they had been sexually abused by Tucker when they were between the ages of 13 and 14.
Tucker and his co-accused were convicted of some of these offences. But two days before the judgment, Tucker fled to South Africa.
Despite being a fugitive from justice, Tucker successfully appealed his conviction. A UK magistrates court ordered a retrial and a fresh indictment for Tucker’s arrest was lodged.
A new warrant was issued in 2003, but Tucker was arrested 13 years later, in 2016.
As the state’s prosecutor’s prepared for a retrial, new evidence of further alleged sexual abuse in the UK have emerged. Tucker now faces charges relating to an additional 41 alleged offences.
During the 2017 extradition hearing in Cape Town, Tucker’s lawyer argued that his client could only be retried on the original charges. He said this meant that Tucker could not be extradited to stand trial on any of the new charges.
The lawyer also contended that his client would not receive a fair trial in the UK because he was the target of “vile, distorted and exaggerated” coverage by the British media. He also alleged Tucker was being discriminated against for being gay.
But despite Tucker’s best efforts, on 10 November 2017, a Cape Town magistrate ordered he was liable to be extradited to the UK. Tucker challenged this decision in the high court because the proceedings were “manifestly and grossly irregular” in numerous respects.
Last year, the high court dismissed Tucker’s leave for appeal and review applications. The court also ordered that the extradition hearing be re-opened to allow Tucker the opportunity to submit an affidavit by an expert on UK law concerning the alleged discriminatory features of the extradition.
Tucker applied to the supreme court of appeal for leave to appeal the entire high court judgment, but this was dismissed on 14 June last year.
In an affidavit to the Constitutional Court, Western Cape director of public prosecutions Christopher Burke says that Tucker has indicated his intention to apply for leave to appeal his extradition to the apex court.
In the written argument, Burke contends that Tucker’s procrastination should not be allowed to defer the issue of his extradition indefinitely. He wants the Constitutional Court to set aside the high court’s decision to refer part of the matter back to the magistrate.
It is not up to a magistrate to make a finding on whether he will receive a fair trial in the UK, Burke argues. This decision may only be considered for the first time by the minister of justice and constitutional development.
Tucker “remains in custody in limbo and the minister barred from making a final decision. In the UK the complainants in this matter have waited more than 30 years for justice to take its course.”
In an affidavit to the court, Burke says the decision to refer the matter back to the magistrate was wrong and has since caused an unnecessary delay. “Two and a half years after the magistrate’s order Tucker remains in custody, the minister remains barred from making his decision and there is no indication of when or how this state of affairs will come to an end.”
The high court judgment “paves the way for extradition enquiries to be complicated and prolonged, sometimes indefinitely, due to irrelevant evidence being either presented or procured. This is not in the interest of justice,” Burke adds.
He says the delay has the potential to become a political embarrassment for South Africa and may damage its diplomatic relations with the UK.
“Tucker is still not in the UK and if the state doesn’t bring this application he will never go there.”